CQG16 v Minister for Immigration

[2017] FCCA 2936

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2936

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – temporary protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 36, 65, 473CA, 473CC

Cases cited:

Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350

Applicant: CQG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1990 of 2016

Judgment of: Judge Hartnett

Hearing date: 9 October 2017

Delivered at: Melbourne

Delivered on: 29 November 2017

REPRESENTATION

Counsel for the Applicant: Ms Batten

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The Application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1990 of 2016

CQG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced on 16 September 2016 upon the Applicant making an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 12 August 2016.  The authority was constituted by reviewer Mr Fraser Syme.

2. The Applicant proceeded on the hearing with an amended application filed on 4 September 2017.  By that amended application, the Applicant sought an order that the decision of the Authority be quashed; that a writ of mandamus issue directed to the Authority requiring it to determine the Applicant’s application according to law; and that injunctive relief be provided restraining the Minister of Immigration and Border Protection (‘the Minister’) by himself or by his Department, officers, delegates or agents, from ‘making the future decision or taking the other action the subject of the proceedings’.  The Applicant also sought costs.

3. The grounds of application are as follows:-

   “1. The Authority could not lawfully have reached the state of satisfaction it purported to reach because the “state of satisfaction” was infected by erroneous findings and deficient factual material.

   2. The Second Respondent erred by failing to consider evidence before it that was relevant and cogent and was corroborative of the Applicant’s claims.

   Particulars:

   The Second Respondent did not deal with, consider, weigh or assess the country information in relation to:

   a) how a person obtains a National Identity Card;  or

   b) how the identity of a person charged under the Immigrants and Emigrants Act is established;  or

   c) how the absence of family members in Sri Lanka can affect verifying a person’s identity and the period of detention.

   3. The Second Respondent erred by failing to consider the particular claims made by the Applicant. 

   Particulars:

   The Second Respondent failed to take into account the Applicant’s Tamil ethnicity, his accepted links to the LTTE, his status as a failed asylum seeker and his lack of family connections who could pay bail, in finding that the Applicant was an “ordinary illegal departee from Sri Lanka.”

4. The Applicant relied upon an affidavit affirmed by Ms Melinda Jackson on 16 September 2016 which annexed a copy of the Authority decision; an affidavit sworn by Ms Josephine Langbien, affirmed 9 October 2017, wherein a copy of the Department of Foreign Affairs and Trade Country Information Report – Sri Lanka dated 18 December 2015 was annexed and written submissions filed 4 September 2017.

5. The First Respondent sought dismissal of the application and costs.  The First Respondent relied upon submissions filed on 25 September 2017.  There was also before the Court the evidence as contained in the Court Book.

6. The application for judicial review of the decision of the Second Respondent made on 12 August 2016 is made under s.473CC of the Migration Act 1958 (Cth) (‘the Act’). The decision affirmed the decision, made on 15 July 2016, by a delegate of the First Respondent, under s.65(1)(b) of the Act, to refuse to grant the Applicant a temporary protection visa.

Background

1. The Applicant is a citizen of Sri Lanka, of Tamil ethnicity and Hindu religion.  He and his family were displaced by the civil war in 1990 and they fled to India.  The Applicant then lived in a refugee camp in Tamil Nadu until October 2012.

2. The Applicant arrived at Christmas Island on 5 November 2012 by boat without a visa. As such, he was “an unauthorised maritime arrival” as defined in s.5AA of the Act.

3. The Applicant falls within the definition of a “fast-track Applicant” for the purposes of s.5(1) of the Act and is subject to the Immigration Assessment Authority regime established by Part 7AA of the Act.

4. On 19 August 2015, the Applicant applied for a protection visa.  The Applicant subsequently made claims and gave information in support of that application, including:-

   a)in a statutory declaration dated 4 December 2015;

   b)at an interview with the delegate on 9 December 2015; and

   c)by written submissions from his agent dated 2 February 2016.

5. In his statutory declaration made on 4 December 2015, the Applicant stated that he feared harm due to being Tamil because:-

   a)his father was forced to work for the Liberation Tigers Tamil Elam (‘LTTE’);

   b)he had left Sri Lanka illegally;

   c)he had applied for asylum in Australia; and

   d)he had lived in India most of his life.

   The Applicant feared further he would be kept in prison because he had no documents.  He did not know whether he was registered in Sri Lanka. He had no family in Sri Lanka, and did not know anyone in Sri Lanka.

6. The submissions in written form from his agent outlined that the Applicant feared harm due to:-

   a)his ethnicity (Tamil);

   b)his actual or imputed political opinion (supporter of the LTTE/anti-government);  and

   c)his membership of the particular social groups: “young Tamil males”, “young Tamil males from the northern province”, “family member of his father”, “undocumented Tamils in Sri Lanka”, “Tamils without identity cards in Sri Lanka”, “Tamils without registration in Sri Lanka”, “Tamils who have lived abroad for a long period”, “Tamils who have lived in India during the war”, “Tamils without family in Sri Lanka” and/or “Tamil asylum seekers/returnees who have fled Sri Lanka unlawfully”.

7. Following referral of the delegate’s decision to the Authority under s.473CA of the Act, and on 9 August 2016, the Applicant’s migration agent filed submissions pursuant to paragraph 27 of the Authority’s Practice Direction 1, and a statutory declaration of the Applicant made on 27 July 2016. The Authority had regard to these documents but did not consider that either document contained “new information” as defined in the Act.

The Authority’s Decision. 

1. The matters found by the Authority are as accurately and succinctly set out in the Applicant’s written submissions and I adopt them below.

2. The Authority accepted:-

   a)that the Applicant is a Tamil from Northern province;

   b)that the Applicant had lived in refugee camps in India since he was six years old; that some people in the camps supported the LTTE; and that his family was motivated to leave Sri Lanka because of the civil war and because his father had received trouble from both the army and the LTTE;

   c)the LTTE coerced the Applicant’s father to help build houses; the Applicant’s father was questioned and beaten by the Sri Lankan army for doing so, and was often questioned by the Sri Lankan authorities while travelling between the Northern province and the Eastern province. The Authority did not however accept the Applicant’s father was a spy;

   d)the Sri Lankan authorities would regard the Applicant as having committed an offence under domestic law, the Immigrants and Emigrants Act (‘IAEA’). 

3. The Authority found that, other than the assertions of the Applicant, the evidence before it did not suggest that the Applicant would be unable to obtain an ID card on the basis of his birth records in Sri Lanka. 

4. The Authority did not accept the Applicant has no family in Sri Lanka and that he knows no one in the country. 

5. The Authority found in the event that the Applicant elected to plead not guilty to an offence under the IAEA, he would either be granted bail on personal surety or that of a family member. 

6. The Authority found that there was not a real chance that the Applicant would face a period of detention or imprisonment. The Authority found that any questioning and detention the Applicant may experience as a result of being charged under the IAEA would be brief and would not constitute serious harm, as inexhaustibly defined in the Act.

7. The Authority accordingly found that the Applicant did not meet the requirements of ss.36(2)(a) or 36(2)(aa) of the Act.

Ground 1: Family in Sri Lanka

1. The foundation of the Applicant’s first ground is that there was “no evidence” to support the Authority’s conclusion that it was “reasonable to conclude the Applicant would have extended family in Sri Lanka”. 

2. Paragraph 15 of the Authority’s Decision and Reasons is as follows:-

   “I consider the applicant has exaggerated the claim he knows no one in Sri Lanka.  The evidence before me does not suggest that the applicant’s parents were both the only child of the applicant’s grandparents, nor does the evidence before me suggest all of his uncles, aunts and cousins have left Sri Lanka. I consider it reasonable to conclude the applicant would have extended family in Sri Lanka, but I am willing to give the Applicant the benefit of the doubt he is not close to those relatives. I do not accept though he has no family in Sri Lanka and that he knows no one in that country.  I am not satisfied the absence of any close family or friends in Sri Lanka will cause the applicant to face a real chance of serious harm from the Sri Lankan authorities, paramilitary or Sinhalese groups, if the applicant returns to Sri Lanka.”

3. In his statutory declaration, dated 4 December 2015, the Applicant claimed that he and his “family” fled Sri Lanka in approximately 1990 when he was approximately six years old.  I accept the submission from the Respondent that in context what the Applicant meant by family in that statutory declaration was his immediate family, that is, his parents and siblings.  The Applicant referred to his parents, his brother and his twin sister as residing in Tamil Nadu, India.  He claimed that a second brother died while “we”, that is, to be taken as the immediate family, were fleeing Sri Lanka.

4. In that same statutory declaration of 4 December 2015, the Applicant stated “I do not have any family in Sri Lanka and I do not know anyone there”.  In the same statutory declaration, on the following page, the Applicant described his father’s and mother’s living circumstances in Sri Lanka before they left.  He stated his father was living in Killinochchi for work.  He claimed his mother was living in Trincomalee and was not able to leave there because “her family” was there.  In that context, the Applicant was clearly referring to his mother’s immediate family, that is, her parents and siblings and perhaps, uncles, aunts, cousins and others.

5. Nowhere did the Applicant claim or give evidence that all the members of his mother’s family in Trincomalee had died or had left Sri Lanka.  Nowhere did he claim or give evidence that his mother’s family no longer lived in Trincomalee.  Accordingly, as submitted by the First Respondent, there was at least some evidence that was capable of supporting an inference that the Applicant had some extended family in Sri Lanka. The Applicant’s submission that ‘the only evidence before the Authority in relation to the Applicant’s extended family was that the Applicant had one uncle who was in Australia’ cannot be accepted.

6. Having regard to s.65 of the Act, the Authority is required to be satisfied that the Applicant has provided the evidence necessary to grant a visa. The Authority is not required to make any positive finding of fact in order not to be affirmatively satisfied of the Applicant’s claims on the evidence before it.[1] 

   [1] SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214, MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151.

7. In paragraph 15 of the Authority’s Decision and Reasons, as referred to in paragraph 22 above, the Authority expresses its conclusions on the evidence in both negative and positive findings.  It was open to the Authority not to be satisfied on the evidence before it of the Applicant’s relevant claim that he had no family in Sri Lanka. In paragraph 27 of the Authority’s Decision and Reasons, when considering the Applicant’s evidence that he has no family in Sri Lanka in the context of considering his claims to fear harm as a result of having left Sri Lanka illegally, the Authority expressed its conclusion in only a negative form:- “The migration agent has submitted that the applicant will face a long period of detention or indefinite detention because he has no family member to provide a surety and/or no money to pay a fine [to obtain bail]. On the evidence before me, I am not satisfied that is the case.”

8. Furthermore, as submitted by the First Respondent, a “no evidence” ground cannot be made out unless there was absolutely no evidence that was capable of supporting a positive finding of fact made.  Accordingly, even if the Authority’s ultimate decision to refuse to grant the Applicant a protection visa relied on a positive finding of fact, the Applicant must establish that there was not a ‘skerrick of evidence’[2] that was capable of supporting that finding.  The Applicant has not established this.

   [2] Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227, 259 per Tracey J, approving the observation in Aronson & Dyer, Judicial Review of Administrative Action (4^th ed) at 246; MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151, 55-61.VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350, 19.

9. The First Respondent referred the Court to the decision in MZZUG v the Minister for Immigration and Border Protection [2015] FCA 1151, wherein Murphy J said relevantly as to the no-evidence ground then before him:-

   “56.  The applicants contended that in making that finding the Tribunal made a factual finding for which there was no evidence.

   …

   57.   I do not accept this contention.  Section 65 of the Act required the Tribunal to refuse to issue protection visas to the Applicants unless it was positively satisfied that the first and second applicants met the Convention or complementary protection criteria.  There are many cases which show that a finding of fact is not necessarily required to support a case of non-satisfaction:  see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] (Ryan, Jacobson and Lander JJ); Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [73] (Heerey, Conti and Jacobson JJ).”

10. Whilst there is clearly evidence before the Tribunal that in the past, members of the Applicant’s wider family lived in Sri Lanka, the question for the Tribunal was about the present and future. The evidence provided by the Applicant was limited to a statement by him that he had no family, in context meaning no immediate family, in Sri Lanka at the relevant time. It was open to the Authority to be not satisfied on the material before it that the Applicant’s claim, if understood as meaning extended family, was accurate.

Ground 2: Establishing the Applicant’s Identity.

1. The Applicant’s second ground is to the effect that the Authority erred by failing to consider certain country information relating to how a person’s identity in Sri Lanka is established. 

2. The Authority’s reasons, at paragraph 14 of the Decision and Reasons, are as follows:-

   “The applicant has claimed too he will be harmed by the Sri Lankan authorities because he does not have a Sri Lankan passport or ID card.  He will be unable to prove his identity and thus will be interrogated, detained and tortured.  He has further stated without registration in Sri Lanka, he will have difficulty finding work or accommodation.  I note the applicant provided his Sri Lankan birth certificate to the delegate as well as identity documents issues to him by the Indian authorities.  The migration agent has submitted, because the applicant holds only a photocopy of that birth certificate, it will be insufficient for him to obtain an ID card and the Sri Lankan authorities will harm the applicant during the process of his establishing his identity. I consider on the basis of that photocopy of his birth certificate the applicant the Sri Lankan authorities should have their own records of the applicant’s birth.  Other than the assertions of the applicant, the evidence before me does not suggest the applicant will be unable to obtain an ID card on the basis of his birth records in Sri Lanka.  I am not satisfied there a real chance the applicant will suffer any serious harm from the Sri Lankan authorities or paramilitaries or Sinhalese groups or other people because he does not have a Sri Lankan passport or ID card. I also do not accept the applicant will be unable to get registered and it follows I am not satisfied there is a real chance it will be hard for him to find work or accommodation because he does not have registration.”

3. These conclusions were open to the Authority on the evidence before it.  In particular as submitted by the First Respondent, it was open to the Authority to infer that Sri Lankan authorities would have their own record of a government document, namely, the birth certificate, of which the Applicant possessed a photocopy and that it could compare the two in order to verify the Applicant’s identity. This inference and reasoning does not involve any irrationality.

4. The Applicant’s argument is that, firstly, the Authority had no evidence or failed to consider evidence about whether or not the authorities could ascertain the Applicant’s identity and, secondly, whether or not the Authority had evidence or considered the available evidence was not relevant to whether there would be difficulties in the Applicant obtaining a further form of identification, being the ID card.

5. Contrary to the Applicant’s assertion, the Authority’s conclusions were not “contrary to the overwhelming weight of the country information before the authority” or “contradicted by the country information”. 

6. Nothing in the December 2015 Department of Foreign Affairs and Trade (‘DFAT’) report suggested that Sri Lankan authorities could not ascertain the Applicant’s identity on the basis of the Applicant’s copy of his birth certificate.  Furthermore, as submitted by the First Respondent while the Authority referred to the DFAT report, the Applicant did not refer the Authority to any aspect of the DFAT report nor is it apparent that the Applicant sought to draw any inferences from it or to make any submissions about it. 

7. The country information referred to by the Applicant’s agent was entirely consistent with the Authority’s conclusion that the Sri Lankan authorities would have records relating to the Applicant, that is, his original birth certificate with which it could compare the photocopy that he could produce and thereby verify his identity. 

1. As to the second limb of the argument against the Minister, that there was no grappling by the Authority, with the difficulties the Applicant may encounter in obtaining a different form of identification, being a national identity card, the Court finds such argument cannot be sustained.  The DFAT country information to which the Authority referred at paragraph 5.43 of the DFAT information was that “Sri Lankans generally use the National Identity Card (NIC) as their primary identification card, although birth certificates, amongst other things, are also frequently used. But the NIC is considered as the primary identity document in Sri Lanka.”

2. The country information then goes on to contain references to numerous ways by which a person could obtain an NIC. There was no evidence before the authority to suggest that the Applicant would be unable to obtain an ID card on the basis of his birth records in Sri Lanka.  There was no country information to that effect.

3. The Authority summarised the country information before it and concluded of the Applicant:-

   “He has his Sri Lankan birth certificate with which he could establish his identity.”

Ground 3: Ordinary Illegal Departure. 

1. The Applicant’s third ground of review invites the Court to conclude that because the Authority characterised the Applicant as an ordinary illegal departee from Sri Lanka in paragraph 27 of its Decision and Reasons, the Court should infer that the Authority failed to consider certain claims or ‘particular circumstances’ of the Applicant.  That ground is rejected.  The Authority’s characterisation of the Applicant in that manner was simply an acknowledgement that the Applicant had left Sri Lanka as a young child, as a passenger, and that in light of the country information before it, that was relevant to the likely sentence on conviction, being a non-custodial sentence.

2. No inference can be drawn from this reference that the Authority was somehow mindless as to the Applicant’s other particular claims and circumstances, all of which it considered in detail.  Furthermore, the Authority expressly stated in paragraph 30 of its Decision and Reasons that it had considered the Applicant’s claims “individually and cumulatively, as well as considering the personal circumstances of the Applicant.” 

3. The application shall be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  29 November 2017