CPQ16 v Minister for Immigration

[2019] FCCA 1739

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPQ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1739

Catchwords:
MIGRATION – Immigration Assessment Authority – protection (Class XA) (subclass 790) Safe Haven visa – whether the Authority denied the Applicant procedural fairness by not allowing him to respond to adverse information or conduct an interview – Application dismissed.

Legislation:

Migration Act 1958, ss.Part 7AA, 473DA, 437GA, 473GB

Cases cited:

DBE16 v Minister for Immigration and Border Protection [2017] FCA 942

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Applicant: CPQ16

First Respondent: MINISTER  FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1978 of 2016

Judgment of: Judge Blake

Hearing date: 21 May 2019

Date of Last Submission: 21 May 2019

Delivered at: Melbourne

Delivered on: 21 May 2019

REPRESENTATION

Advocate for the Applicant: In Person

Solicitors for the Applicant: None

Counsel for the First Respondent: Mr Goodwin

Solicitors for the First Respondent: Clayton Utz Lawyers

Counsel for the Second Respondent: None

Solicitors for the Second Respondent: Clayton Utz Lawyers

ORDERS

1. The application filed on 15 September 2016 be dismissed.

2. That the applicant pay the first respondent's costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1978 of 2016

CPQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

Introduction and Background Facts

1. This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 26 August 2016.  The background facts are these. The Applicant was born on 1 September 1982 and is a citizen of Sri Lanka.  His wife and two children live in Sri Lanka.  On 25 October 2012, the Applicant participated in an irregular maritime arrival interview.  At that interview, the Applicant stated that he had left Sri Lanka because, in April 2012, some people he did not know had come in a Jeep and he went into hiding at his parents' house. He stated that he could not work because he was in hiding. The Applicant eventually left Sri Lanka. 

2. The Applicant applied for a Safe Haven Enterprise visa (‘Visa’) on 18 November 2015.  He provided two statutory declarations in support of the application.  The statutory declarations included the following information. The Applicant fled to India with his family but returned to Sri Lanka in 1995.  Subsequent to his return, a cousin was killed with other leaders in an attack on the Liberation Tigers of Tamil Eelam (‘LTTE’).  The Applicant was close with another cousin, PT, who was recruited by the LTTE.  The Applicant said he visited PT regularly.  The Applicant said he helped PT escape following the Sri Lankan Army’s capture of Sambur.  PT was subsequently detained, released in 2007, but subsequently died.

3. The Applicant stated that two unidentified men had accidentally gone to his neighbour’s house in April 2008, mistaking him for the Applicant, and that he was indirectly told he had to report to the Central Intelligence Division.  The Applicant then went into hiding.  From about May 2008 until 2012, the Applicant was employed in Qatar.  He returned to Colombo once in that period in around 2010.  The Applicant further claimed that he understood his wife and mother‑in‑law had been approached in early 2015 and asked about his connections to the LTTE.

4. The essential basis of the Applicant’s claim for the Visa was that he feared harm from authorities in Sri Lanka based on his connection to PT and PT’s involvement with the LTTE.  The Applicant also feared harm on the basis of leaving the country illegally and applying for asylum in Australia. 

Procedural History

1. A delegate of the Minister refused to grant the Visa to the Applicant on 13 July 2016.  The delegate did not accept that the Applicant regularly visited PT or helped him escape from Sambur. Further, the delegate did not accept that the Applicant's house was visited by unidentified men in either 2008 or 2015.  The delegate also did not accept that the Applicant would be imputed with pro‑LTTE views due to his relationship with PT.

2. The delegate’s decision was referred to the Authority on 15 July 2016.  On 26 August 2016, the Authority affirmed the decision of the delegate not to grant the Applicant the Visa. 

3. The Applicant filed an application for review (‘Application’) of the Authority’s decision in this Court on 15 March 2017. 

Grounds of Review

1. The first ground of review is as follows:

   The second respondent constructively failed to review the First Respondent's decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.

2. The second ground of review is as follows:

   The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant’s credibility was an important factor in the Second Respondent's decision that he was not a refugee, and an oral interview can give insight into a person's credibility that is otherwise unavailable.  By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the applicant procedural fairness.

3. The third ground of review is as follows:

   I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

The hearing in this Court

1. The Applicant was unrepresented at the hearing in this Court.  He appeared with the assistance of a Tamil interpreter.  At the outset of the hearing, the Applicant confirmed that he was happy with and understood the interpreter.  The Applicant, when asked, indicated that he did not have with him a copy of the written submissions filed the Minister or a copy of the Court Book. 

2. Under questioning, the Applicant appeared to indicate that he did, at one point, have these documents but they were lost when his car was stolen.  In the circumstances, the Applicant was supplied with a fresh copy of the Minister’s submissions and the Court Book by counsel for the Minister.  I stood the matter down to give the Applicant an opportunity to read the Court Book and the submissions.  I then proceeded to hear the matter. 

3. During the hearing, the Applicant made the following oral submissions:

   a)He had given his account of events but had not been believed. 

   b)The proof he had was his oral account.  The only people he could call to verify his account were people in Sri Lanka and he could not go to meet them. 

   c)His travels to see his cousin were recorded by the army.  He did not have those details, the army had them.

   d)Various people saw him in his travels, including people in the temple. 

   e)A person whom he described as a leader, which I took to be his cousin, trained 700 people, many of whom have now joined the government and who could speak and share information about him. 

   f)He has problems with the government.  He does not know why his account of events is not being accepted. 

   g)The only evidence he can give is oral evidence.  He does not have any documentary evidence.  His family attempted to send him his passport and original documents but these were confiscated in Sri Lanka and have not been returned.

4. I deal firstly with the matters raised by the Applicant today.  The essence of the Applicant’s submissions today was that he was taking issue with the nature of the evidence before the delegate and the Authority and also taking issue with findings of fact that had been made.  Counsel for the Minister submitted, and I accept, the bulk of the submissions made by the Applicant in the hearing today amount to an invitation to traverse into the merits of the matter.  In a matter of this nature, it is not for the Court to delve into the merits of the matter.  The principal task of the Court is to assess whether there is any jurisdictional error that has been disclosed.

5. So far as the Applicant may be taken to be asserting that his visits to his cousin were not considered by the Authority, a review of the Authority's reasons disclose otherwise.  The visits were noted by the Authority at bullet point 6 of page 3 of its Decision and Reasons (‘Decision’) at Court book 396. The Authority then, from paragraphs [17] to [24] of its Decision, considered the claims and made findings in respect of them. The reasoning discloses, in summary, that the Applicant's claims were not accepted by the Authority because of inconsistencies primarily to do with dates submitted by the Applicant.

6. A review of the reasons of the delegate and the Decision of the Authority disclose that the Authority made very similar but not identical factual findings to those made by the delegate. It may therefore be said, and I find, that the Applicant was on notice about the issues to do with his evidence at the time the matter came before the Authority. It is pertinent to observe that the Applicant was given an opportunity to make submissions to the Authority. He did this on 2 August 2016 and a copy of the submission is contained at Court Book 385. I, therefore, do not regard the submissions made by the Applicant today as giving rise to any jurisdictional error.

7. I now turn to deal specifically with the grounds of review in the Application.  The substance of both grounds of review are that the Applicant was denied procedural fairness. 

8. In respect of ground 1 of the grounds of review, section 473DA of the Migration Act 1958 (‘Act’), along with section 473GA and section 473GB of the Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule: see DBE16 v Minister for Immigration and Border Protection [2017] FCA 942. The consequence of this is that there is not an obligation on the Authority to put dispositive matters or adverse information to a visa applicant in the sense similar to that set out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63.

9. The Authority in this matter had regard to the material that was before the delegate, as well as the statement and submission provided by the Applicant, which was prepared by his representative, that set out all of the reasons why the Applicant disputed the delegate’s decision. This was the chance the Applicant had to address any issues and he availed himself of it.

10. Reviews under Part 7AA of the Act are necessarily limited. In this case, the Applicant’s further submissions were received and considered. I am unable to discern any obligation on the Authority to put the Applicant on notice or ask him to comment on potentially adverse information. Nor, having regard to the facts of this matter, am I able to discern any failure on behalf of the Authority to grant the applicant procedural fairness.

11. Ground 2 of the grounds of review asserts a denial of procedural fairness because the Authority did not grant the Applicant an oral interview. The Applicant, to some extent, expanded on this point in the hearing when he said that he could only give his evidence orally. A review of the Authority’s decision discloses, among other things, that the Applicant's credit was in issue. Simply because the Applicant’s credibility is in issue does not compel the Authority to get new information under section 473DC of the Act: see DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222. In fact, to do so would be inconsistent with the fast-track review process.

12. The relevant provisions of the Act operate here to require a fast‑track review process. That process is to be conducted on the papers by considering the review material. Further, under section 473DC of the Act, the Authority has a discretion to obtain new information that was not before the Minister. Such information may be given as an interview following an invitation by the Authority. There is nothing in the provisions of the Act, however, which compel or require the Authority to grant an interview. It is pertinent to point out that the Applicant was given an opportunity to present his case orally when he was interviewed by the delegate. That interview occurred on 20 January 2016 and a note of it is recorded at Court Book 336.

13. Finally, ground 3 of the grounds of review states that:

    I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

14. This is not a proper ground of review and does not expose any jurisdictional error.

15. Having regard to the above matters, I will make orders to dismiss the Application with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate: 

Date:  21 June 2019