Coz17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 89

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

COZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 89

File number(s):	SYG 1840 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	29 September 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – whether the Authority erred in considering new Country information – whether the applicant’s entry interview was before the delegate – whether the Authority contravened s 473DD of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed
Legislation:	Migration Act 1958 (Cth), ss 5J, 36(2)(a), 36(2)(aa), 473CA, 473CB, 473DA, 473DB, 473DC, 473DC(3), 473DD, 473DD(a) 473DE(3)(a) and 476
Cases cited:	EAI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 506
Division:	Division 2 General Federal Law
Number of paragraphs:	43
Date of hearing:	19 July 2021
Solicitors for the applicant:	In person.
Counsel for the respondent:	Ms K Hooper
Solicitors for the respondent:	Australian Government Solicitors

ORDERS

SYG 1840 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

COZ17
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	29 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2.The application is dismissed.

3.The applicant to pay the first respondent’s costs fixed in the amount of $7,467.00

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

1. These proceedings were commenced on 13 June 2017 seeking a constitutional writ under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 17 May 2017, affirming a decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a protection visa (“the Visa”).

   BACKGROUND AND APPLICANTS CLAIMS

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.  The applicant is a Tamil from a particular district in the Eastern Province and arrived in Australia in October 2012 as an unauthorised maritime arrival.

3. The applicant claimed to fear harm by reason of allegedly attempting to leave Sri Lanka in July or August 2012, whereby he was intercepted, jailed, bailed and required to appear in court.  The applicant also claims to fear harm by reason of previous assistance in a particular campaign for a Tamil National Alliance (“TNA”) candidate in the September 2012 provincial council elections.  The applicant claims to fear harm because of his imputed support for the police in Sri Lanka and the Sri Lankan Army (“SLA”). 

4. The applicant fears harm because of his ethnicity, his place of origin, his imputed support for the police, officers of the Criminal Investigation Department (“CID”) and SLA, his actual and/or imputed support for the TNA, and his two illegal departures from Sri Lanka as well as seeking asylum abroad. 

5. On 28 January 2017, the applicant applied for a protection visa.  On 21 October 2016, the delegate found that the applicant failed to meet the criteria for the grant of a protection visa. 

   THE AUTHORITY DECISION

6. On 28 October 2016, the Authority wrote to the applicant explaining that the application for the protection visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The Authority in its decision identified the background to the review application, and had regard to the material referred by the secretary under section 473CB of the Act.

7. The Authority had regard to the information received from the applicant’s representative on 18 November 2016 and identified that this was not new information.  The Authority identified obtaining an updated Department of Foreign Affairs and Trade (“DFAT”) country information report regarding Sri Lanka, published on 24 January 2017.  The Authority identified that it was satisfied there were exceptional circumstances to justify considering the new information. 

8. The Authority summarised the applicant’s claims and identified the relevant statutory provisions as to whether the applicant met the criteria in relation to the Refugee Criteria or in relation to complementary protection. There were statutory provisions as to the applicable law incorporated in the Authority’s reasons.  The Authority accepted that the applicant’s family home had been located close to a police camp which was closed in around 2008 and that the applicant’s land was returned to his family. 

9. The Authority accepted that it was plausible that as a Tamil family, the applicant and/or his family came to the adverse attention of those authorities, but it found that the camp was closed in 2008 and the applicant’s family returned to occupy their land.  The Authority took into account that the applicant had not advanced any claim that he fears harm in Sri Lanka on account of the events prior to 2009. Further, the Authority took into account that there is no evidence that indicates that the applicant is at risk of harm in the future on account of those events. 

10. The Authority was not satisfied that the applicant faced a real chance of serious harm on account of events that transpired prior to 2009, upon the applicant’s return to Sri Lanka now, or in the reasonably foreseeable future.  The Authority accepted that the applicant worked as a driver from around 2008. The Authority accepted that the applicant between 2010 and 2012 assisted officers from the CID and Special Task Force (“STF”), was ‘hired’ by them, and assisted with his vehicle in transporting suspects several times a month.  The Authority accepted that the applicant and other drivers were given fuel in lieu of payment for their services.

11. The Authority found that the applicant’s claim that he had come to the adverse attention of two men in September 2012 to be unconvincing.  The Authority identified that in the temporary protection visa (“TPV”) interview the applicant had stated that the events occurred in a jungle wherein he was stopped by two people who accused him of supporting police and the army, that they threatened to kill him, and that following this incident he was too afraid to drive.

12. The Authority referred to the absence of any police report supporting the applicant’s claims that he ceased working as a driver. The Authority also referred to a medical letter, submitted by the applicant,  in relation to the applicant’s alleged “contusions and abrasions” from 6 to 7 August 2012,  in relation to treatment in respect of an alleged attack carried out by a group of people.  The Authority also referred to the entry interview on 6 January 2013, in which the applicant had claimed the incident occurred five months prior to his departure.  

13. The Authority referred to the applicant’s oral evidence in the TPV interview, that he ceased working as a driver following the incident, which they found was inconsistent with his earlier oral evidence in the interview in which he stated at [24] that he worked as a driver “until he came here”, confirming with the delegate that he worked as a driver in September 2012.  The Authority  also referred to the entry interview at [24] in which the applicant confirmed that he was working as a driver ‘right up until he left Sri Lanka’ and that a particular TNA candidate had hired his rickshaw in September 2012.

14. The Authority identified these inconsistencies in relation to the applicant’s claims concerning the incident and his continuation as a driver and found that the applicant was not recalling genuine personal experiences.  The Authority was not satisfied that the applicant came to the adverse attention of two unknown men in April or September 2012 or at any other time.  The Authority found that the applicant continued to work as a driver up until his departure from Sri Lanka. 

15. The Authority then referred to the applicant’s claim that he was approached by a particular TNA candidate to assist in the election in September 2012.  The Authority referred to the applicant’s assertion as to his role in assisting that candidate, a letter of support and two untranslated newspaper clippings dated 13 September 2012, showing the applicant’s involvement in a procession.

16. The applicant in the TPV interview claimed that two days after the procession, five armed men in a white van arrived at his home asking for him. The applicant claimed that he opened the back door and ran to his cousin’s house where he remained hiding until he left Sri Lanka.  The applicant noted that his father reported the incident to the police.  An untranslated extract from the police station was provided that indicated that on 13 September the applicant’s father reported to police that unidentified persons attempted to abduct his son at about midnight, being a different time to that identified by the applicant. 

17. The Authority identified a different account in the report to the police as to both the persons chasing the applicant and the claim that he had not been seen since, whereas the applicant in the entry interview had contended that the parents had advised the people they did not know where he was and that they went away.  The Authority referred to a letter from the candidate contending that the applicant received several warnings from rival party members which led to him fearing for his life and fleeing Sri Lanka.  That letter was not consistent with the claims advanced by the applicant.  The Authority found that the applicant’s evidence in relation to his involvement in the 2012 provincial council elections and subsequent events to be unconvincing.  The Authority identified an inconsistency in relation to the timing of the election candidate’s approach to the applicant. In his TPV statement, the applicant contended it was  in mid‑2012, as opposed his TPV interview, where the applicant contended it was two weeks prior to September 2012.

18. The Authority also found it not consistent that the applicant held a leadership role, and found it implausible that the candidate would engage a person with no political background or experience to lead the campaign.  The Authority found it implausible that, given the applicant’s claimed level of involvement in the election, only several months later he would be unable to recall the name of the candidate who lost the election.  The Authority also referred to the candidate’s letter and the absence of claims by the applicant that he had received several warnings from rival party members.

19. The Authority referred to the photograph in the paper, which was alleged was the cause for the applicant coming to the adverse attention of armed people. The Authority identified that, according to the TPV interview and the police extract, the alleged armed people came to the applicant’s home prior to the photographs being published.  The Authority referred to the police report in relation to what was reported to be an attempted abduction at midnight, noting that it differed from the time advanced by the applicant, as well as the inconsistency in relation to the armed people going away when his parents told them they did not know where he was.

20. Those inconsistencies and implausibility led the Authority to conclude that the applicant was not recalling a genuine personal experience.  The Authority was prepared to accept that the applicant provided low‑level support of the TNA during the September 2012 elections. However,   the Authority was not satisfied that the applicant had any leadership role or direct involvement in the particular candidate’s campaign.  The Authority gave little weight to the letter provided by the candidate and found its contents did not support the majority of claims raised by the applicant in his application.

21. The Authority referred to it being plausible that the applicant was photographed with the candidate following his victory but, in light of the inconsistencies, was not satisfied that unknown armed people came to the applicant’s home in search of him in the days following the election, on account of the published photographs or for any other reason.  The Authority rejected the applicant’s associated claims that he was living in hiding at his cousin’s house prior to his departure from Sri Lanka.

22. The Authority referred to the applicant’s claims of having attempted to leave Sri Lanka in July or August 2012 and being intercepted. The Authority noted that the delegate had asked the applicant what he had been charged with, and that the applicant asserted that he had not raised this matter earlier because he was scared. The Authority referred to a handwritten document from a village officer, which referred to the applicant being involved in a case. The Authority identified that it was not clear that the case related specifically to the applicant’s claim that he illegally departed Sri Lanka in July or August 2012. The Authority further identified that no other documents pertaining to this claim were provided to the delegate prior to the decision on 21 October 2016.

23. The Authority referred to the applicant being represented throughout the TPV application process, and identified that the applicant raising such a material claim for the first time nearly three hours into the TPV interview undermined his credibility.  The Authority found that the claim was inconsistent with information by the applicant in his TPV application, where he declared he had never been the subject of an arrest warrant or charged with any offence that is awaiting legal action.  The Authority also referred to the applicant giving evidence at the entry interview that he had never been arrested or detained by police or security organisations.

24. In light of the credibility concerns, the Authority did not accept that the applicant was arrested or detained in July or August 2012 whilst attempting to illegally depart Sri Lanka.  The Authority found that the applicant left Sri Lanka illegally on one occasion in early October 2012 and arrived in Australia in October 2012.  The Authority was not satisfied that the applicant faced a real chance of serious harm in Sri Lanka because he was present when the LTTE stored some weapons in his uncle’s shop in 2003.  The Authority was not satisfied that the applicant faced a real chance of serious harm in Sri Lanka because the applicant brought five litres of petrol to an unknown group of people on one occasion in 2007 or 2008.

25. The applicant referred to having a relative who was a colonel in the LTTE until 2006 and who then migrated to another country.  The Authority referred to country information in relation to those with links to the LTTE.  The Authority was not satisfied that the applicant is a person with such a profile and found that there was no evidence that indicated that the applicant has or will come to the adverse attention of Sri Lankan authorities, or is at risk of harm in Sri Lanka on account of his relative’s profile.  The Authority was not satisfied that the applicant faces a real chance of serious harm in Sri Lanka on account of his relative’s prior LTTE involvement.

26. The Authority referred to the adverse attention that the applicant and his family came to living next door to a SLA or police camp. The Authority was not satisfied that the applicant faces a real chance of harm in Sri Lanka on that basis. The Authority referred to the applicant working as a driver from around 2008 until September 2012 and referred to their finding that the applicant did not come to the adverse attention of persons on the basis claimed. Accordingly, the Authority was not satisfied that the applicant faces a real chance of serious harm in Sri Lanka on that basis.

27. The Authority accepted that the applicant was a low‑level supporter of the TNA and that his photograph was published in a newspaper in September 2012.  The Authority found that the applicant did not come to the adverse attention of unknown people and was not satisfied the applicant faces a real chance of serious harm in Sri Lanka on that basis. 

28. The Authority accepted that the applicant departed Sri Lanka illegally.  The Authority referred to country information and found that the applicant is not a person that faces a real chance of serious harm by virtue of his Tamil ethnicity, his place of origin, or on account of any actual or imputed LTTE connections, including familial connections.

29. The Authority referred to the applicant’s illegal departure and was not satisfied that the applicant faces a real chance of serious harm due to being a failed asylum seeker from Australia, now or in the reasonably foreseeable future, if he returns to Sri Lanka.  The Authority referred to country information in relation to the applicant’s illegal departure and was not satisfied that the applicant faces a real chance of serious harm during any brief time spent in detention.  The Authority found that there is not a real chance that the applicant would face imprisonment.  The Authority found that the Immigration and Emigration Act and laws of general application apply to all Sri Lankans equally, and that the law is not discriminatory, applied in a discriminatory manner or selectively enforced.

30. The Authority was satisfied that the process or penalty the applicant may face on return to Sri Lanka, because of his illegal departure, would not constitute persecution for the purpose of the Act. The Authority found that the applicant does not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia or for any other reason. Having considered the applicant’s claims individually and cumulatively, the Authority found that the applicant does not have a well‑founded fear of persecution within the meaning of s 5J of the Act.

31. The Authority found that the applicant did not meet the criterion in s 36(2)(a) of the Act. The Authority turned to the issue of complementary protection and found that there are not substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criterion in s 36(2)(aa) of the Act and affirmed the decision under review.

    BEFORE THE COURT

32. At the commencement of the hearing today, the Court explained to the applicant the nature of the hearing, and the applicant confirmed that he understood the explanation given by the Court.  The applicant identified that there were still problems in his country and that his life would be in danger if he went back to Sri Lanka.  It is apparent the Authority found that the applicant does not face a real risk or real chance of serious harm or significant harm on return to Sri Lanka. The applicant’s contention to the contrary reflects a disagreement as to the merits.

33. The applicant also referred to fearing harm by reason of having been jailed.  This was clearly a reference to the applicant’s claim of having attempted to leave Sri Lanka illegally on an earlier occasion in 2012.  The Authority rejected that claim and gave logical and rational reasons, as summarised above, in support of that adverse finding.  Those adverse reasons include that the applicant identified in his entry interview that he had never been arrested or detained and that the claim was inconsistent with the applicant’s TPV application, where he declared he had never been the subject of an arrest warrant or charged with any offence that is awaiting legal action.  Accordingly, the adverse finding cannot be said to lack an evident and intelligible justification and was open for the reasons given by the Authority. 

1. The applicant referred to there still being problems in Sri Lanka today and referred to a recent newspaper article.  Information that was not before the Authority is not capable of giving rise to a jurisdictional error insofar as it goes to the applicant’s claims.  The recent newspaper article and the current situation in Sri Lanka today are in substance, an invitation to engage in impermissible merits review and are not circumstances that identify any jurisdictional error by the Authority in the conduct of the review.  The Court accepts the first respondent’s submissions that the applicant’s submissions were, in substance, an invitation to engage in merits review.  Nothing is said by the applicant identified any jurisdictional error.

   THE GROUNDS

2. The Grounds in the application are as follows:

   Ground 1

   The IAA made a jurisdictional error in considering the DFAT Country Information Report, Sri Lankan, 24 January 2017 when it was prohibited to do so by s473DD.

   Particulars

   a.At paragraph 5 the IAA found as follows:

   “I have obtained new information, specifically information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lankan illegally and sight asylum abroad (information not specifically about the applicants but about a class of persons of which the applicants are a member) from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017 report updates. I am satisfied that there are exceptional circumstances to justify considering this new information.”

   b.S473DD prohibits the IAA from considering new information;

   c.The only exception to the s473DD prohibition is if the referred applicant satisfies the authority that, in relation to any new information given it is "credible personal information which was not previously know and, had it been known, may have affected the consideration of the referred application's claims";

   d.The IAA has not have the power to consider any other new information and has made a jurisdictional error in considering the 24 January 2017 DFAT report in making the decision to affirm the decision not to grant the referred applicant a protection visa.

   Ground 2

   2. Alternately to ground 1, if the IAA does have the power to consider new information, then the new information should be put to the applicant under s473DC(3) so the applicant can make submissions on whether there is exceptional circumstances or not, so the applicant has been denied procedural fairness.

   Ground 3

   3. The IAA made a jurisdictional error in considering the applicant's entry interview in breach of the prohibition in s473DD as the entry interview was not before the delegate at the time of making the decision.

   GROUND 1

3. In relation to Ground 1, section 473DD of the Act does not prohibit the Authority from considering new information in the nature of the most recent DFAT country information report as occurred in the present case, where the Authority finds that there are exceptional circumstances to justify considering the new information. The Authority’s reasons reflect making a finding to that effect. The second limb in relation to paragraph (b) applies where it is the applicant who has provided new information, it does not mean that s 473DD of the Act applies only to information provided by the applicant. The Authority is not prevented from considering the new information. It is not correct that the new information that can be considered under s 473DD of the Act must emanate only from the applicant.

4. Section 473DD(a) of the Act  grants the Authority  a power to consider new information in relation to the most recent country information where there is a finding made as to there being exceptional circumstances.  The Authority made such a finding.  Accordingly, the contention that the Authority had no power to consider the new information in the nature of country information is incorrect.  No jurisdictional error is made out by Ground 1.

   GROUND 2

5. In relation to Ground 2, the submission appears to advance that the Authority should have put the new country information to the applicant under s 473DC of the Act. Section 473DC of the Act permits the Authority to get new information and would permit the Authority, if it sought to do so, to obtain the applicant’s response to new country information. The Authority was not, however, the subject of any statutory obligation requiring it to do so. In that regard, the Court has taken into account the provisions of part 7AA, including in particular, s 473CA, s 473DA and s 473DB of the Act. 

6. Given those statutory provisions and s 473DE(3)(a) of the Act, it cannot be said to be legally unreasonable for the Authority to proceed with the review without putting to the applicant the more recent country information. The Authority was not required to give the applicant a further opportunity to put on new information and submissions having already done so, nor was the Authority required to give the applicant an opportunity to put on submissions as to whether there are exceptional circumstances to justify taking into account the most recent country information. The very nature of the same being the most recent country information reflects a reasonable exercise of the Authority’s powers under s 473DD(a) of the Act in considering the same. There was no legally unreasonable failure to exercise the Authority’s powers under s 473DC(3) of the Act in these circumstances.  Accordingly, no jurisdictional error is made out by Ground 2.

   GROUND 3

7. In relation to Ground 3, this contends that the Authority erred in taking into account the entry interview and contends that the entry interview was not before the delegate.  The affidavit evidence before the Court identifies that this contention is incorrect. It is clear from the affidavit of Joshua Robert Compton, that the delegate had regard to it by downloading the applicant’s written interview and the oral recording, prior to conducting the protection visa interview. 

8. It is also apparent that the Secretary identified the entry interview as being information that was taken into account by the delegate which should be provided to the Authority. The Court accepts the first respondent’s submissions that the circumstances of this case, given the downloading of the entry interview and recording prior to the TPV interview, makes the case distinguishable from the circumstances considered in EAI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 506, in which all the delegate did was merely open electronic records. There is no basis in the present case to find that the delegate did not consider the documents that were extracted and downloaded prior to the conduct of the protection visa interview.

9. The absence of reference to the entry interview in the delegate’s reasons does not, in these circumstances, identify that the written entry interview and oral recording were not before the delegate. Accordingly, no jurisdictional error as alleged in Ground 3 is made out. That is because the entry interview was not new information and the provisions of s 473DD of the Act had no application to the written entry interview and oral recording that were before the delegate and which were properly provided by the secretary to the Authority under section 473CB of the Act.

10. As the application fails to make out any jurisdictional error, the application must be dismissed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate: 

Dated:       29 September 2021