CMY17 v Minister for Immigration

[2018] FCCA 331

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 331

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority adopted an erroneously narrow construction of s 473DD of the Migration Act 1958 (Cth) – the Authority took into account the applicant’s statement – there is no basis to find the Authority failed to take into account both limbs of s 473DD – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DB, 473DC, 473DD, 473DE, 476

Applicant: CMY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1797 of 2017

Judgment of: Judge Street

Hearing date: 13 February 2018

Date of Last Submission: 13 February 2018

Delivered at: Sydney

Delivered on: 13 February 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms KJ Crawford
HWL Ebsworth Lawyers

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1797 of 2017

CMY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 May 2017 affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 27 August 2012 as an irregular maritime arrival and applied for a Safe Haven Enterprise visa on 13 April 2016.

3. The applicant claimed to fear harm from the Sri Lankan police (“SLP”) because of the murder of his brother-in-law; the Sri Lankan Army (“SLA”) because of an imputed support for or association with the Liberation Tigers of Tamil Eelam (“LTTE”); certain businessmen because of his brother-in-law’s business debts; and the Sri Lankan authorities because he is a Tamil from the North and a returned asylum seeker who fled illegally. The applicant also raised a concern in relation to his medical condition. 

4. On 12 October 2016, a delegate found the applicant failed to meet the criteria for the grant of the visa. The delegate accepted the applicant’s claim that the LTTE had a camp near his village however, as the applicant stated he was never personally targeted during checks for people with LTTE links, the delegate did not accept that he was of any interest to the SLA.

5. The delegate did accept the applicant’s claim that his brother-in-law had been killed and that the applicant had been questioned by police in relation to the death. The delegate also accepted that the police conducted an investigation into the death. However, in the face of the inconsistencies in the applicant’s account, the delegate did not accept the applicant was of any special interest to the police.

The Authority’s decision

1. The Authority found the applicant to be a Tamil Catholic from Sri Lanka who was born in Mannar and resided in Vavuniya in the Northern Province.

2. On 26 October 2016, the Authority wrote to the applicant identifying that the application for a visa had been referred to the Authority for review. The letter identified that there were limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

3. The applicant provided to the Authority on 16 November 2016 a statement which was referred to in the Authority’s reasons. The statement relevantly referred to the adverse findings and responded to the same.  The statement also asserted that the applicant could provide further details about his role as a manager of a business if the Authority asks questions about it. The statement asserted that the case officer did not ask the applicant to provide for information about the transactions.  The statement also identified that if the Authority had any concerns about the applicant’s credibility and claims, the applicant requested that he be given an interview to allow him to respond to those concerns.

4. The reasons of the Authority identify the background to the visa application. The Authority refers to having regard to the material referred under s 473CB of the Act. The Authority referred to the applicant’s statement dated 16 November 2016 and indicated that so far as it responded to matters that were before the delegate, the Authority found that that was not new information and considered the same.

5. The Authority also correctly noted that the applicant contended that he wished to provide the Authority with further information in relation to certain of his claims. The Authority correctly observed that the applicant had not stated what that information is, how it is relevant, why it was not provided earlier in the application process or what exceptional circumstances exist to justify considering the new information. The Authority also referred to the applicant’s request for an in-person interview in the event the Authority has concerns about the applicant’s credibility and/or claims. The Authority referred to s 473DB of the Act that subject to Part 7AA, the Authority must review decisions on the papers without interviewing the applicant. The Authority referred to s 473DC of the Act that provides that the Authority does not have a duty to get, request or accept any new information, whether the Authority is requested to do so by an applicant or in any other circumstances.

6. The Authority noted that it may only consider new information in limited circumstances. The Authority noted that there was no statutory entitlement to an interview. Taking these matters into account and on the basis of the evidence that was before the Authority, the Authority was not satisfied there were exceptional circumstances to justify considering the new information referred to by the applicant, or that an interview with the applicant is necessary or required in the circumstances. 

7. The Authority were referred to an updated DFAT report dated 24 January 2017 to which the Authority had regard in accordance with s 473DE(3)(a) of the Act.

8. The Authority then summarised the applicant’s claims and evidence.  The Authority also referred to the information provided by the applicant alleging that he had a terminal illness. The Authority identified the relevant law.

Assessment of Refugee Convention criteria 

1. The Authority referred to the applicant’s claims about employees in the place where he worked being taken by the police.  The Authority found there was nothing in the referred materials in relation to those employees and while the Authority was prepared to accept that they were taken for questioning, the Authority found the applicant’s claim of their disappearance was speculative and unfounded.

2. The Authority accepted that the applicant was detained and questioned as claimed. The Authority accepted that the shooting occurred in 2006 and remains unsolved and as such it is plausible that police were continuing to investigate in 2012 and may have continued to question employees and relatives.  The Authority referred to the fact that, while the applicant claimed that four employees have since disappeared whilst in police custody, the Authority found this claim was speculative and unfounded. The Authority found the applicant is not of adverse interested to the SLA and does not face a real chance of serious harm on the basis of any police investigation into the death G.

3. The Authority referred to the applicant’s claims and that he had not provided any evidence of having a role beyond that of being a bus conductor. The Authority referred to G’s debts.  The Authority was not satisfied on the evidence that the applicant was involved in running the business or managing its finances before or after G’s death.

4. Whilst the Authority was prepared to accept the applicant had a familial link with G, the Authority was not satisfied that he had any significant managerial or financial role within the business. The Authority was not satisfied the applicant was or will be identified as the personal responsible for G’s business debts.

5. The Authority did not accept businessmen were searching for the applicant to obtain money. The Authority did not accept these businessmen have visited his home either before or since he left Sri Lanka. The Authority found that the applicant does not face a real chance of serious harm on the basis of G’s murder or G’s business debts. 

6. The Authority referred to the applicant’s claims that the SLA would come to his village to check homes and question people about the LTTE. The Authority noted the applicant has not claimed and there is no evidence before the Authority that he or his family were mistreated or were singled out in these operations.

7. The Authority was prepared to accept the applicant’s claims that the SLA conducted security operations in his village and that these operations included visiting homes and questioning villagers. The Authority was satisfied that neither the applicant nor his family were suspected of involvement with the LTTE and the applicant does not now face a real chance of serious harm as a result of these operations. The Authority referred to a claim that there was an attack near his village by the LTTE on an SLA camp and that the SLA came to the applicant’s village.

8. The Authority found the applicant was detained and questioned as a result of being a Tamil male in the area where the LTTE had attacked a SLA camp. The Authority considered it implausible that the SLA would continue to take the applicant away to make enquiries following the end of the conflict. The Authority found the applicant had never been arrested, charged or subject of an investigation by the police in relation to links to or knowledge of the LTTE. The Authority was satisfied that if the authorities suspected the applicant in relation to the LTTE, he would have been subject to more than occasional questioning and further actions, such as reporting requirements, monitoring or long periods of detention. 

9. The Authority made reference to the applicant’s claim that two other suspects have disappeared. The Authority was satisfied the two people who were taken in 2012 were involved in a murder investigation and were not taken by the SLA. The Authority found the applicant had embellished his claims of SLA interest in him and has fabricated a claim that the two people were taken by the SLA in 2012. The Authority found the applicant has not been the subject of ongoing SLA detention and questioning since the 2008 attack and that the applicant does not have a profile with the authorities in relation to the 2008 attack, nor any profile as a real or imputed supporter of, or associate to the LTTE. 

10. The Authority found the applicant does not face a real chance of serious harm on the basis of a real or imputed profile as a member or supporter of, or due to any association with, the LTTE. The Authority was also satisfied the applicant will not be imputed with any such membership, support or association on the basis of being a young Tamil male. 

11. The Authority referred to the applicant’s alleged terminal illness. The Authority referred to the only report that was provided that identified an abnormality. The Authority took into account that the medical report is four years old and the applicant has not claimed that he has been referred to a specialist since or that he has suffered any deterioration of the condition. The Authority accepted that the applicant has a medical condition but was not satisfied that it is a terminal condition or that it would expose him to a real chance of serious harm should he return to Sri Lanka.

12. The Authority referred to the applicant being a Catholic Tamil and took into account the United Nations High Commissioner for Refugees (“UNHCR”) Eligibility Guidelines. The Authority noted that it found the applicant does not have and will not have any profile arising from any real suspected links to the LTTE, including any familial association. The Authority found that the applicant does not have and will not have any other of the profiles summarised by the Authority in relation to the eligibility guidelines.

13. The Authority noted that the United Kingdom Home Office (“UKHO”) has reported that a person being of Tamil ethnicity would not of itself warrant international protection. The Authority was satisfied the applicant will not appear on a ‘stop’ list at the airport.

14. The Authority found that there are no claims and there is no evidence before the Authority that the applicant has or intends to have any involvement in any activity that may place him at risk of arrest or detention. The Authority noted the applicant has not claimed and there is no evidence that the applicant or any member of his family has suffered any harassment, discrimination or violence because of being Catholic or Christian. The Authority was satisfied that the applicant has not suffered serious harm as a result of his religion in the past, and there was no evidence before the Authority to suggest he faces a real chance of serious harm for this reason should he return to Sri Lanka.  The Authority was satisfied the applicant does not face a real chance of serious harm on the basis of being a Tamil, a Tamil from the North, or a Catholic or Christian.

15. The Authority turned to the applicant’s illegal departure and being an asylum seeker. The Authority took into account that the applicant had previously departed Sri Lanka in 1990 and lived in India until 2001.  The Authority was satisfied the applicant does not have any profile with the authorities arising from his previous departure from and return to Sri Lanka. The Authority was satisfied the applicant would not be at risk on return on the basis of any adverse security or criminal profile and found there is not a real risk that the applicant would be subject to harm because he is returning as an asylum seeker. 

16. The Authority made reference to the fact that it accepted the applicant may be questioned on return as part of the airport screening process.  The Authority found that as the applicant left Sri Lanka in breach of the Immigrants and Emigrants Act, there is a real chance that he will be charged and fined under that law. The Authority found that the imposition of a fine, or the requirement of any bail, surety or guarantee, would not constitute serious harm. 

17. The Authority referred to the possibility of a short detention and was satisfied that the provisions and penalties of the Immigrants and Emigrants Act are laws of general application and are not discriminatory on its terms and are not applied in a discriminatory manner or selectively enforced. The Authority was satisfied that if the applicant is detained, fined and questioned, that this would be the exercise of laws of general application that apply to all Sri Lankans equally. 

18. Overall, the Authority found that the Authority was not satisfied the applicant will face a real chance of serious harm arising from the murder of his brother-in-law; his brother-in-law’s business debts; an imputed support for or association with the LTTE; his previous interactions with the Sri Lanka authorities; his medical condition; being a Tamil Catholic from the North and a returned asylum seeker who fled Sri Lanka illegally. The Authority found the applicant does not meet the requirements of refugee in s 5H(1) of the Act and failed to meet the criteria under s 36(2)(a) of the Act. 

Assessment of complementary protection criteria

1. The Authority was not satisfied the applicant will face a real risk of significant harm during any questioning or his time in detention or prison while awaiting his Magistrates Court hearing. The Authority was satisfied the applicant does not and will not face a real risk of significant harm because of his medical condition.

2. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk that he would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. On 14 September 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The only document filed was the amended application from 2 February 2018. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing. The Court explained the Court was considering whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial or procedural fairness. The Court explained that in summary, this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that, if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

The applicant’s submissions from the bar table

1. The applicant maintained that the Authority did not take into account that he would be interrogated. The Authority’s reasons expressly referred to the applicant being questioned upon return to Sri Lanka and made adverse findings that were open to the Authority in respect of the criteria under the Act. No jurisdictional error on the part of the Authority arises in that regard. 

2. The applicant alleged that it was not taken into account that he was a bus driver and the Authority expressly referred to the applicant’s background in that regard. The applicant went further and suggested that the company was working for the LTTE. No such claim in that regard was made in the statement of the applicant.  No such claim in that regard arises on the material before the Authority. The Authority’s decision does not give rise to any relevant error by not dealing with an issue that was not raised in that regard.

3. The Authority did take into account the applicant’s claims concerning the two employees who were taken away for questioning in relation to the person who was shot. The Authority did not accept the applicant’s claims as to their disappearance and found that was speculative and unfounded.

4. The Authority expressly took into account the applicant’s claims arising from the investigation in relation to the shooting of G and made dispositive findings that were open to the Authority for the reasons given by the Authority. Those reasons cannot be said to be illogical or unreasonable. No jurisdictional error arises by reason of that argument advanced by the applicant. 

5. The applicant also suggested from the bar table that the Authority did not take into account his fear of being imputed as being involved with the LTTE. The Authority’s reasons, as summarised above, made clear findings in relation to the applicant’s claims in that regard and those claims were the subject of dispositive findings that were open for the reasons given by the Authority. Those reasons cannot be said to be illogical or unreasonable.

1. The applicant also alleged that the Authority failed to take into account his medical condition. As referred to above, the Authority’s reasons made clear that the Authority took into account the applicant’s medical condition,  the outdated nature of the medical evidence and the limited nature of the medical evidence in that regard and made dispositive findings that were open to the Authority in that regard. Those findings cannot be said to be illogical or unreasonable. There was no failure to take into account the applicant’s medical condition. No jurisdictional error is made out by the reason of that matter raised by the applicant.

2. The applicant’s submissions otherwise identified his fear that he would be harmed on return to Sri Lanka. The applicant’s submissions in that regard invite this Court to engage in impermissible merits review. This Court does not have the power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

3. It was the applicant’s decision to confine the nature of the material that he gave to the Authority. No jurisdictional error arises reason of this matter raised by the applicant from the bar table. 

4. The ground in the amended application is as follows:

   1. The IAA adopted an unduly narrow construction of s 473DD of the Act by confining its determination of the new information to whether or not I provided an explanation in accordance with the Practice Direction No. 1 and in so doing, misconstrued its statutory task and constructively failed to exercise jurisdiction under s 437DD.

   Particulars

   a. At paragraph 6 the IAA reasoned that a failure to provide an explanation was determinative of the matters set out in s 473DD. In doing so, its constructively failed to exercise jurisdiction under s473DD;

   b. In determining whether the new information as identified by the IAA could be considered by it, s473DD required the IAA to determine whether there were exceptional circumstances to justify its consideration of the new information as well as determining whether it is satisfied as to why the new information was not and could not have been provided to the Minister before the Minister made its decision or that the new information was credible personal information which was not previously known, and had it been known, may have affected the consideration of my claims;

   and

   c. Subsection 473DD(a) requires a consideration by the IAA of all relevant circumstances in determining whether there are exceptional circumstances that justify the consideration of the new information. The relevant circumstances include a consideration of the significance of the new information in the context of my claims and of its nature and probative value.

5. This ground seeks to take issue with the Authority’s approach under s 473DD of the Act to the applicant’s statement, and the indication that there was further information that he could provide in relation to certain of his claims.

6. The applicant did refer to there being certain documents that had been left out by the Authority. No documents were in fact identified by the applicant in his statement. As the Authority’s reasons record, the nature of the further information that the applicant might wish to provide was not provided, was not identified and it was not stated how it is relevant, why it was not provided earlier and what the exceptional circumstances were to justify its existence.

7. The Authority’s reasons do not reflect any erroneously narrow construction of s 473DD of the Act. In the present case, the alleged new information was not provided and the Authority’s questions make it clear that the Authority did not misunderstand or fail to take into account both limbs of s 473DD of the Act. The Authority had already invited the applicant to provide any new material and what the applicant had provided, was the statement and the generalised assertion that he can provide further information in relation to certain of his claims.

8. In those circumstances, it was not unreasonable for the Authority not to take further steps to invite the applicant to provide further information and it was not unreasonable for the Authority, for the reasons given by the Authority, not to invite the applicant to a further review or to make comments. The Authority’s reasons in relation to not inviting the applicant to a further review cannot be said to lack an evident and intelligible justification.

9. On the material before the Court, the applicant had a real opportunity to provide new information and submissions and all that was provided by the applicant was his statement. In those circumstances it was not unreasonable for the Authority to proceed to determine the matter without inviting the applicant to provide the further information, which the applicant was well aware had not been given to the Authority. That decision by the Authority cannot be said to be unreasonable.

10. There was no denial of procedural fairness by the Authority in the conduct of the review as the applicant was informed of the limited circumstances in which new information could be provided and the applicant was sent a letter dated 26 October 2016 which gave the applicant an opportunity to put on new information and submissions.

11. The Authority’s reasons clearly reflect taking into account the applicant’s statement. For the reasons earlier given, there was no misconstruction by the Authority in respect of s 473DD of the Act. There was no failure to properly exercise the powers of the Authority under s 473DD of the Act, nor did the Authority on the material before the Court, adopt an unduly narrow construction of the provision in the circumstances of the present case.

12. Where the further information was not identified, and given the questions identified by the Authority that were not addressed, there is no basis to find that the Authority failed to take into account both limbs of s 473DD of the Act. No jurisdictional error as alleged in ground 1 of the amended application is made out.

13. As no jurisdictional error as alleged in ground 1 of the application is made out, the amended application is dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 March 2018

CORRECTION NOTE TO COVER SHEET:

The incorrect dates were erroneously entered on the cover sheet when the judgment outline was generated. The hearing date, date of last submission and judgment delivery have been corrected to reflect 13 February 2018.