CNH16 v Minister for Immigration

[2017] FCCA 2845

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNH16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2845

Catchwords:
MIGRATION – Protection visa application- review of decision of Immigration Assessment Authority – whether the Authority erred by failing to consider claim for protection – applicant was not invited to comment on or respond to adverse information or attend a hearing – the Authority failed to properly assess or consider the risk to the applicant arising from the Immigrant & Emigrants Act 1949 (Sri Lanka) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DA, 473DB, 473DD, pts.5 and 7, div.3 of pt.7AA

Other Materials cited:
Immigrants & Emigrants Act 1949 (Sri Lanka)

Applicant: CNH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2420 of 2016

Judgment of: Judge Smith

Hearing date: 20 October 2017

Date of Last Submission: 20 October 2017

Delivered at: Sydney

Delivered on: 20 October 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2420 of 2016

CNH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for review of a decision of the Immigration Assessment Authority (Authority) made on 18 August 2016.  The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Safe Haven Enterprise visa, which is a type of protection visa. 

2. The applicant arrived in Australia on Christmas Island on 29 September 2012.  In his particular circumstances at the time he was an offshore entry person, and ultimately with the change of legislation, became an unlawful maritime arrival.  As such he was not entitled to apply for a protection visa, unless the Minister exercised his discretion to allow him to do so. 

3. The Minister exercised that power sometime in 2015. On 8 September 2015 the applicant was invited to apply for a protection visa and did so on 9 October 2015.  The claims made in support of that application are summarised in the Authority’s decision at [5], as set out below:

   ·On 28 September 2006 in Jaffna he was arrested by the SLA on suspicion of having links with the Liberation Tigers of Tamil Eelam (LTTE) and taken to an abandoned house, detained for two days, tortured and threatened with being buried alive. He was blindfolded, taken to Jaffna police station and held for five days. A case was filed against him and he was released from jail, but asked to stay in Jaffna until the court case was resolved.

   ·He reported this to the International Committee of the Red Cross (ICRC) and the Human Rights Commission (HRC), his court case occurred after three months and he was released. He lost his job because he was in jail and considered a suspicious character.

   ·He returned to Batticaloa, married, then moved to Welimada, a Sinhalese area. During this time two of his friends from Batticaloa went missing and are still untraceable. The Government announced in August 2010 that people who moved to Batticaloa had to register. After he registered, his arrest in Jaffna came out and people threw stones at his house at night. He sent his wife and son to Periyaporathevu and he continued to stay in the shop where he worked.

   ·In February 2011 he moved to Periyaporathevu to his wife’s house. The same month he tried to leave Sri Lanka illegally but the boat broke down and they were saved by fisherman. After the incident the SLA came to his house to inquire about him leaving the country illegally and if he was smuggling weapons for the LTTE.

   ·One day he was travelling in a friend’s autorickshaw, was stopped at a checkpoint and the SLA took his registration papers and confiscated the vehicle. They hit him, said they knew what illegal activities he was involved in, reminded him about his two friends who were missing and untraceable and warned that the same thing could happen to him.

   ·The next day he went to his local TNA member, who was standing in an upcoming election, for help to recover his papers and the vehicle. He was told if he wanted assistance he had to help canvass for the party and he agreed. After this two unidentified people came looking for him at his home, he wasn’t there and they told his mother that he should not work for the TNA or there would be a funeral in the house. He got scared and decided to leave Sri Lanka.

   ·He fears he will be tortured and killed by the SLA and the Government if returned. He fears the SLA suspect him of LTTE involvement because of the incident in Jaffna and the later incident with the boat.

   ·As a single, male, 35 year old, Tamil from the east, failed asylum seeker who left Sri Lanka illegally, provided assistance to the TNA and who previously had a failed attempt to leave Sri Lanka in 2011, he will be closely scrutinised on return at the airport and his history will be discovered. He will be detained for additional questioning and suffer serious harm.

4. On 12 July 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. Under the relevant legislation, which is somewhat complicated, that decision was a fast-track review decision. Accordingly, the decision was referred by the Department directly to the Authority for review. The conduct of the review by the Authority is governed by the provisions of pt.7AA of the Migration Act 1958 (Cth) (Act).  I will return to some of the provisions in that part in due course, but note for present purposes, that it does not ordinarily involve any hearing of any type, or the provision by the Authority of an opportunity to address adverse information in the material before the Authority.  Thus, it was that on 18 August 2016, the Authority made its decision without having held a hearing and without having given any notice to the applicant of any adverse information. 

5. The Authority’s reasons for its decision are accurately summarised in the submissions for the first respondent at [6] – [12], which I set out below:

   6.The Authority affirmed the decision under review: CB 184-205.

   7.The Authority set out the applicant’s claims at [5]; CB 188-189. The Authority accepted that the applicant had been arrested and subject to serious harm in Negombo and Jaffna as claimed and that his charges in 2006 were dealt with by a court: 10]; CB 190. The Authority further accepted that whilst in Welimada the applicant knew of two friends who went missing: [12]; CB 190. The Authority did not accept, due to inconsistencies in the applicant’s written statement and oral evidence given at the interview for the Safe Haven Enterprise visa, that stones were thrown at his house by SLA officers as he claimed, or that the applicant was on a wanted list.

   8.In relation to the applicant’s attempted illegal departure in 2011, the Authority accepted as plausible that the applicant attempted to leave Negomba illegally on a boat organised by a smuggler, and that he was met by two Sri Lankan soldiers who let the applicant go with a warning: [17]; CB 191. However it found that the applicant in his oral evidence to the Department had merged parts of his illegal departure claim with aspects of the event he had described in his written claims regarding the confiscation of his autorickshaw: [18]; CB 191. The Authority did not accepted that the SLA was aware of the applicant’s illegal departure attempted or that the SLA visited him at his home to question him about his illegal departure attempted: [18]; CB 191. The Authority considered the autorickshaw incident separately but did not find the applicant’s evidence on this matter to be credible: [21]; CB 192.

   9.By reference to country information and having regard to the evidence of the applicant’s travel out of and into Sri Lanka between 2010 and 2012 the Authority was not satisfied that the applicant was of adverse interest to the Sri Lankan authorities, either prior to, or since, 2012: [23]-[26]; CB 192-193.

   10.The Authority did not accept, having regard to its findings in relation to the applicant’s past experiences, and country information, that the applicant faced a real chance of persecution from the Sri Lankan authorities as a Tamil male from the east or due to any perceived links to the LTTE: [40]; CB 196. The Authority considered whether the applicant was owed refugee protection for reason of his being a failed asylum seeker and a person who had departed illegally from Sri Lanka, but was not so satisfied: [49], [57]; CB 198-199. The Authority found that the applicant did not have a profile that would expose him to a risk of harm: [48]; CB 198. The Authority did not consider that the applicant, whilst he would be subject to sanction under the Immigration and Emigration Act (I&E Act) on return to Sri Lanka, would suffer any treatment that would constitute serious harm under s.5J(5) of the Act: [54]; CB 198.

   11.In considering whether the applicant was owed protection obligations under s.36(2)(aa) the Authority accepted that the applicant may face some level of societal discrimination, but that such discrimination would not amount to significant harm under the Act: [62]; CB 200. The Authority otherwise relied on its findings of fact relating to the applicant’s refugee claims in determining that neither was it satisfied that the applicant was entitled to complementary protection under the Act.

   12.The Authority considered separately whether the applicant’s treatment upon return to Sri Lanka as a person who had departed the country unlawfully would amount to significant harm. The Authority found it would not: [65]; CB 200. The Authority concluded that the applicant would be fined for his illegal departure in 2012, but that the imposition of a fine did not amount to significant harm: [66]; CB 200. The Authority did not accept the applicant’s submission that the IE Act causes, and was intended to cause, extreme and unreasonable humiliation. It found that county information confirmed that all returnees were subject to the same procedures upon return: [68]; CB 200-201.

   (Emphasis in original)

6. The applicant now seeks judicial review of the Authority’s decision. 

7. The applicant appeared unrepresented today and made submissions that he had submitted all of the evidence in support of his protection claims and he would not have come to this country other than had he required protection from harm in Sri Lanka.  He said that if he receives another opportunity before the Authority, he will be in a better position to establish his claims. 

8. Those submissions do not justify any interference by this Court in the exercise of power by the Authority.  This Court is only empowered to make orders affecting the exercise of power, if there is jurisdictional error; in other words, if there is some legal or procedural error that has affected the exercise of the Authority’s power. 

Consideration

First ground

1. In his application for review, the applicant sets out in narrative form, a number of grounds.  The first is broadly stated, that the Authority failed to consider the applicant’s claim for protection.  On any view of the Authority’s decision as set out above, that is patently incorrect as a matter of fact and the ground is rejected. 

Second ground

1. The second ground is in effect that the Authority made its decision without inviting the applicant to a hearing, or to comment on or respond to, adverse information. The difficulty with this ground is that in effect it does not take into account the scope of the review provided for under pt.7AA. Section 473DB of the Act, which falls in that Part, provides subject to the part, that the Authority must review the decision without accepting or requesting new information and without interviewing the applicant. This is to be contrasted with other review Tribunals, such as that covered by pts.5 and 7 of the Act.

2. Other provisions of pt.7AA are also pertinent, including s.473DA, which provides that div.3 of pt.7AA is an exhaustive statement of requirements of the natural justice hearing rule. That provision has been construed in a number of decisions in this Court to mean that there is no obligation to afford procedural fairness, other than what is contained in the express provisions referred to in that section. There may be room to doubt the extent of those authorities, at least in respect of the operation of s.473DD of the Act, but there is nothing that I can see in the facts of this case that would have required, at risk of jurisdictional error, the Authority either inviting the applicant to a hearing, or to give the applicant particulars of any adverse information which it had in the material before it. For those reasons I would reject ground 2.

Third ground

1. Ground 3 is effectively that the Authority failed to consider the applicant’s claims arising under the Immigrants and Emigrants Act 1949 (Sri Lanka) (I&E Act).  The applicant contends that “the I&E Act causes, and was intended to cause, extreme and unreasonable humiliation”.  Contrary to the assertion found in ground 3, the Authority did consider the impact of the I&E Act, which it accepted would have an operation in respect of the applicant, given his illegal departure from Sri Lanka. 

2. For that reason, I consider that properly understood ground 3 is no more than a contention that the Authority ought to have accepted the applicant’s claim.  The balance of the statements made in the grounds of the application appear to rise no higher than an attack on the merits and so do nothing to establish jurisdictional error. 

Conclusion

1. The applicant has not established there was jurisdictional error in the Authority’s decision.  The application must be dismissed. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:   21 November 2017