CMR16 v Minister for Immigration
[2017] FCCA 1715
•24 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMR16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1715 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant fearing harm in Sri Lanka due to an imputed political opinion – applicant disbelieved in critical respects and other claims found not to be well-founded – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.422B, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473GA, 473GB |
| Cases cited: BBS16 v Minister for Immigration & Anor [2017] FCCA 4 BTK16 v Minister for Immigration & Anor [2017] FCCA 505 BVM16 v Minister for Immigration & Anor [2016] FCCA 3183 CED16 v Minister for Immigration & Anor [2017] FCCA 233 CJG16 v Minister for Immigration & Anor [2017] FCCA 453 Minister for Immigration v Singh [2016] FCAFC 183 |
| Applicant: | CMR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2415 of 2016 |
| Judgment of: | Judge Driver |
| Date of Last Submission: | 24 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2017 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 7 September 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2415 of 2016
| CMR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Immigration Assessment Authority (Authority). The decision was made on 16 August 2016. The Authority confirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background information concerning the applicant’s claims for protection and the decisions of the delegate and the Authority on them are conveniently set out in the Minister’s outline of legal submissions filed on 17 July 2017.
The applicant is 24 year old Hindu of Tamil ethnicity and a national of Sri Lanka. On 28 August 2012, he arrived in Australia as an unlawful maritime arrival. On 20 October 2015, he lodged an application for a Safe Haven Enterprise Visa (SHEV)[1] and attended an interview on 17 March 2016[2]. On 10 June 2016, a delegate refused the visa[3]. The matter was then referred to the Authority.
[1] Relevant Documents (RD) 32-108
[2] RD 12
[3] RD 139-162
Applicant’s claims for protection
The applicant’s claims may be summarised as follows:
a)in 2005, when he was about 14 years old, the applicant moved to Colombo, where he worked in a jewellery shop until his departure in 2012. He returned to visit his village in 2007, and at that time his cousin (ST) was taken and detained by the authorities for approximately three years because of his alleged family connection to Kalithas (also known as Colonel Stalin), who was a commander in the LTTE. His family and ST have been blacklisted;
b)when ST was finally released in 2010, he went to live in Colombo with the applicant;
c)in 2011, the Tamil Makkal Viduthalai Puligal (TMVP) (a paramilitary group) came in search of the applicant, leading him to flee Sri Lanka in 2012;
d)the applicant’s mother reported that in early 2015, people in plain clothes, who may have been police or from the Karuna group, came to his house to enquire about Kalithas, and about ST who came with him to Australia. In April 2015, four people wearing Sri Lankan Army uniforms came to his parents’ home again in search of Kalithas. The applicant believed Kalithas was killed by the Sri Lankan Army; and
e)the applicant will be targeted because of his close connection to an LTTE official (Kalithas), the police will not protect him and no matter where he goes in Sri Lanka he is at risk of harm. The applicant did not mention these claims at the entry interview as he was afraid the Australian government would inform the Sri Lankan government.
Delegate’s decision
The delegate reasoned and concluded as follows[4]:
a)the delegate did not believe that Kalithas/Colonel Stalin existed, or that if he did exist, that the applicant was imputed with a political opinion/targeted because of that connection. The applicant admitted he had never spoken to Kalithas or even made his acquaintance and the delegate found his evidence was vague. There was no information through open sources which indicated the existence of Kalithas. The arrest of ST and not the applicant in 2007 suggests that the applicant was not of interest to the authorities. The applicant has never been harmed or targeted by the authorities and they had no interest in the applicant on account of his claimed relationship to Kalithas (the delegate also found that his family has not been blacklisted, as claimed);
b)the applicant’s fear of persecution as a result of his Tamil race is not well-founded – any discrimination he might encounter would not amount to persecution;
c)the delegate accepted that the applicant would be considered a failed asylum seeker upon return. However, any treatment he may encounter would not be discriminatory and would be as a result of laws of general application. He may be temporarily detained, fined and released, but because he has no profile, he will not suffer persecution. He did not attract obligations under the Refugee Convention; and
d)finally, any societal discrimination on account of his race, and any remand and fine for illegal departure, would not amount to significant harm, so the applicant did not attract complementary protection obligations.
[4] RD 139-162
Authority process and decision
On 6 July 2016, the applicant’s representative sent the following to the Authority[5]:
a)an appointment of representative;
b)a photograph purporting to be of Colonel Stalin;
c)a document in Tamil, with English translation, purporting to certify the arrest of ST in 2007;
d)a Red cross pass issued (to ST) while in detention in 2007; and
e)a three page submission summarising some of the delegate’s findings and noting that even though the delegate disbelieved the existence of Kalithas/Colonel Stalin, he did believe that ST had been detained for three years. The Authority was invited to consider the risk the applicant faced as a result of his relationship to ST. The submission also referred to the photograph of Colonel Stalin, asserting that the banner in the shot showed his name and that if a short extension of time was permitted, the applicant would have the banner translated.
[5] RD 167-176
On 16 August 2016, the Authority affirmed the decision under review. The Authority reasoned and concluded as follows:
a)it noted that the submission was a reiteration of protection claims addressing the delegate’s reasoning. To the extent that he submission discusses information which was before the delegate and responds to the delegate’s reasoning, the information is not “new” as defined in s.473DC(1) of the Migration Act 1958 (Cth) (Migration Act) and the Authority had regard to it[6];
b)in relation to the documents attached to the submission, the applicant did not explain why these could not have been provided to the delegate, why it was credible personal information which was not previously known and how it may have affected the applicant’s claims. Section 473DD(b) was not met and there were not exceptional circumstances to justify consideration of it[7];
c)apart from Kalithas, nobody in the applicant’s family was an LTTE member or supporter. As the Authority did not accept that Kalithas existed, was an LTTE member, that the applicant was related to him, or that he or ST were of interest to the authorities due to a family connection to Kalithas. It accepted that ST was arrested and may have been detained for three years and that it may have been due to his imputed support of the LTTE, but not that he was required after his release in 2010 to report, or in fact reported, to the TMVP. The applicant registered his address in Colombo and so the authorities would have been able to find him - yet he experienced no problems there. He also obtained a passport legally in 2012. The applicant was not of interest to the authorities, TMVP or the Karuna group, and does not face a real chance of persecution for imputed links to the LTTE[8];
d)the Authority did not accept that the applicant would be targeted/face a real chance of persecution upon return to Sri Lanka because of his Tamil ethnicity or because he is a Tamil from the east[9];
e)as for his connection to ST, country information does not suggest that persons are at risk merely because they are related to another person with imputed links to the LTTE. No other family members have been questioned, detained or tortured and when the authorities came for ST, they did not take the applicant. The claim that he is at risk because of association with ST is therefore purely speculative and he does not face a real chance of persecution for this reason[10];
f)as a failed asylum seeker, he would be charged and may be held for a short time on remand. He will not be subject to mistreatment during this processing and the law applied is one of general application and it is not selectively applied. Although conditions on remand may be poor, they do not rise to the level of significant or serious harm. He will be issued with a fine and released or may be released on his own personal surety. Considered individually and cumulatively, the applicant does not face a real risk of persecution[11]; and
g)any societal discrimination the applicant would face and/or treatment whilst being processed and on remand as an illegal departee/failed asylum seeker, including poor prison conditions, would not amount to significant harm[12].
[6] [4]
[7] [6]
[8] [42]-[46]
[9] [32]-[41]
[10] [42]-[46]
[11] [47]-[60]
[12] [64]-[70]
The present proceedings
These proceedings began for the show cause application filed on 7 September 2016. The grounds in that application are:
Ground 1
To the extent the Authority declined to consider information and submissions by the Applicant's representatives, it fell into jurisdictional error in failing to provide procedural fairness and / or to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [5]- [6]).
Particulars
1.1 The Authority failed to take into account the information provided and the relevant country information.
1.2 The Authority failed to properly classify that the information was new information;
1.3 The Authority failed to consider whether the section s 473DD was applicable m the circumstances.
1.4 The Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test).
1.5 The Authority committed jurisdictional error.
Ground 2
The Authority denied the Applicant procedural fairness / failed to carry out its in relation to his application for review in circumstances it was under duty to make further enquiries to ensure that the Applicant could participate in the review process.
Particulars
2.1 The [Authority] did not make proper enquiries regarding Colonel Stalin which was a critical aspect of the claim.
2.2 It was reasonably easy for the Authority to obtain the details from Tamil organisations within Australia.
2.3 The Authority's process of review resulted in the Authority not carrying its task properly when it has duty to inquire should itself properly informed itself by making proper enquiries to ensure procedural fairness;
2.4 The Authority committed jurisdictional error.
Ground 3
The Authority fell into jurisdictional error in failing to give consideration to the Applicant's claims regarding the Applicant's ability to subsist upon return from Australia. The Authority misconstrued and / or misapplied the test under s 5J of the Act and / or s 91 R of the Act.
Particulars
3.1 The Authority did not give consideration to the Applicant's ability to return to any occupation to subsist in Sri Lanka as he would be denied rights to subsistence.
3.2 The Authority committed jurisdictional error.
Ground 4
The Authority fell into jurisdictional error in dealing with the Applicant's bail. The Applicant would be charged under I & E Act for illegal departure. The Authority has not considered whether the Applicant would get bail. The Authority did not provide applicant opportunity to be heard on this issue. The Authority thereby denied the Applicant procedural fairness.
Particulars
4.1 The Authority did not ask the correct questions regarding the handling of bail
4.2 The Authority failed to address whether the Applicant would meet bail. The Authority denied the Applicant procedural fairness in respect of findings concerning bail.
4.3 The Authority committed jurisdictional error.
The application is supported by a short affidavit filed with it which I received. The applicant also filed a second affidavit on 4 July 2017 which annexed a number of documents. I declined to receive that affidavit on the basis that the documents annexed to it had either not been provided to the delegate or the Authority previously or were already reproduced in the book of relevant documents where they had been so provided.
I have before me as evidence the book of relevant documents filed on 27 September 2016.
Only the Minister prepared written submissions in relation to procedural orders made by me for the conduct of today’s hearing.
I invited oral submissions from the applicant this afternoon. He is concerned that he was not given sufficient time to provide additional material to the Authority. There is some confusion with that assertion. It is true that the delegate pointed out some deficiencies in the information provided at that stage of the process. It is also true that the Authority invited the applicant to provide submissions on the delegate’s decision within a fixed time. Apparently in response to that invitation the applicant provided some new information.
The Authority found that the new information could have been provided to the delegate. There were also no exceptional circumstances which would have caused the Authority to receive it. I interpret that to be an expression of opinion that the applicant had had sufficient time to provide evidence in support of his claims to the delegate.
The applicant is also critical of the failure on the part of the Authority to further investigate his claims concerning the person known as Colonel Stalin. At a factual level the applicant had asserted to the delegate that it would be too dangerous for him to obtain information about his connection to Colonel Stalin and it would seem to follow that whether the Authority could make its own enquiries without causing risk to the applicant is a matter of some conjecture. Secondly, and in any event, there is no obligation under the Authority’s procedural code to make any additional enquiries.
In relation to Ground 3, the ground fails at a factual level given the lack of any evidence that the claim referred to by the applicant was ever made. It appears to me from the available material that the Authority did consider, consistently with the Migration Act, those claims that the applicant did make.
Ground 4 on its face raises contentions in relation to the applicant’s eligibility for bail on the assumption that he would be charged with a breach of the Sri Lankan Immigrants and Emigrants Act. It is true that the Authority proceeded on the basis that the applicant would be arrested and charged with a breach of that Act. At [59] of its reasons the Authority noted, on the basis of information from the Department of Foreign Affairs and Trade, that bail would only be an issue if the applicant pleaded not guilty in respect of an asserted breach of that Act.
The applicant in his oral submissions appeared to contend that he would be in a different position because of problems involving his cousin, known as ST in the Authority decision, prior to them both leaving Sri Lanka. However, it is plain from the Authority decision that the claims in relation to ST were not accepted by the Authority.
I otherwise agree with the Minister’s submissions in relation to the grounds of review advanced.
Ground 1 asserts error in the Authority’s treatment of the submission and supporting documents provided to it on 6 July 2016. To the extent that it alleges breach of procedural fairness, it is misconceived as the relevant obligation on the Authority is to follow the requirements of s.473DD of the Migration Act. This required the Authority to be satisfied that:
There are exceptional circumstances to justify considering the information AND
the information was not, and could not have been provided to the delegate before he made his decision
or the information was credible personal information which was previously known and, had it been known, may have affected consideration of the applicant’s claims.
I note that the Authority did have regard to the content of the submission, as it was not “new” information. In respect of the supporting documents, the Authority was not satisfied that any of the criteria of s.473DD had been met. Given the nature of the documents, being a photograph, documentation dated 2007 relating to his cousin and an identity card, the findings with respect to s.473DD were open to the Authority. Nor was the Authority required to give more time for the wording of the photograph to be translated[13], given it did not consider the requirements of s.473DD to have been met in relation to it. Ground 1 therefore fails.
[13] RD 176.5
Ground 2 is misconceived. It asserts a duty to make enquiries “to ensure the applicant could participate in the review process”. There is no such duty in Division 3 of Part 7AA and s.473DA makes clear that that Division is an exhaustive statement of the natural justice hearing rule. Section 473DB provides that the Authority can make a decision without accepting or requesting any new information and without interviewing the applicant, and can make its decision at any time after referral. Section 473DC provides that the Authority has no duty to obtain any new information. In the present case, the Authority did not err in failing to invite the applicant to a hearing or in taking no steps to obtain new information.
Ground 3 claims that the Authority misunderstood the meaning of “well-founded fear of persecution” by not considering whether the applicant could subsist on return to Sri Lanka. First, as noted above no such claim was made. Secondly, there is nothing in the Authority’s reason to suggest that it misunderstood its task or the relevant definitions. Thirdly, the Authority accepted that, as a Tamil, the applicant possibly faced societal discrimination, with some monitoring and harassment, but found that these would not amount to significant harm[14] and on a fair reading of [41] of its decision, the Authority also concluded that he was not at risk of serious harm either. Ground 3 therefore fails.
[14] at [64]
Ground 4 and its particulars take issue with the finding that the applicant would “meet bail”. The applicant asserts that he was denied procedural fairness in this regard and that the Authority “did not ask the correct questions regarding the handling of bail”. There was no obligation on the Authority to afford the applicant procedural fairness by way of hearing or invitation to comment[15]. Further the ground relies on a false factual premise, namely that the Authority found he would “meet bail”. In fact it did not make any such finding, but rather at [59] the Authority found that the applicant “would be issued a fine and be released or, if he pleads not guilty, he will be released on his own personal surety”. Ground 4 also fails.
[15] Sections 473DB(1), 473DC(2)
The Minister’s submissions also raise an issue concerning a certificate issued pursuant to s.473GB of the Migration Act. The Minister’s submissions deal with the current state of the law based on several decisions of this Court. I agree with those submissions.
On 14 June 2016, a delegate of the Minister issued to the Senior Reviewer of the Authority a certificate pursuant to s.473GB of the Migration Act[16]. Nothing arises from the certificate for the following reasons.
[16] RD 163
The principles articulated by Beach J in MZAFZ v Minister for Immigration[17] and Kenny, Perram and Mortimer JJ in Minister for Immigration v Singh[18] have no application to reviews conducted by the Authority under Part 7AA of the Migration Act[19].
[17] (2016) 243 FCR 1
[18] [2016] FCAFC 183
[19] BVM16 v Minister for Immigration & Anor [2016] FCCA 3183 at [22]-[27] per Judge Jarrett; BBS16 v Minister for Immigration & Anor [2017] FCCA 4 at [77]-[80] per Judge Driver; CED16 v Minister for Immigration & Anor [2017] FCCA 233 at [48] per Judge Street; BTK16 v Minister for Immigration & Anor [2017] FCCA 505 at [29] per Judge Street; CJG16 v Minister for Immigration & Anor [2017] FCCA 453 at [64] per Judge Street. It should be noted that a notice of contention has been filed in an appeal in the Federal Court of Australia from the orders made in BBS16 (Proceedings NSD242/2017).
Section 473DA(1) provides that Division 3 of Part 7AA (ss.473DA-473DF), and ss.473GA and 473GB, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the [Authority]”. Unlike s.422B(2), which does not “cover off or exclude” the procedural fairness obligations listed by Beach J at 14-15 [60] (and at 12-13 [50]), s.473DA(1) does. There are no gaps in s.473DA(1) for the general law rules of procedural fairness to fill.
Further, s.473DE(1) only compels the Authority to “give to the referred applicant particulars of any new information”, if that information “has been, or is to be, considered by the [Authority] under section 473DD” and “would be the reason, or a part of the reason, for affirming the fast track reviewable decision”. The information covered by the certificate issued under s.473GB(1), however, is not “new information” as defined in s.473DC(1); rather, it is information that was before the Minister.
Even if it were assumed that the certificate itself came within the definition of “new information” in s.473DC(1), it could not be said to be the reason, or a part of the reason, for affirming the delegate’s decision such that the Authority’s disclosure obligation in s.473DE(1) would apply in respect of it.
The certificate is reproduced at page 163 of the court book. While there may be an issue concerning the validity of the certificate given the terms of it, it is unnecessary for me in the context of this case to make any ruling.
I conclude that the applicant has failed to establish that the decision of the authority is affected by any jurisdictional error.
I will order that the application filed on 7 September 2016 is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity but as has been repeatedly stated that is not a reason for the court to refrain from making a costs order.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 2 August 2017
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