CQQ16 v Minister for Immigration
[2019] FCCA 3491
•3 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQQ16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3491 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misconstrued s.473DC of the Migration Act 1958 (Cth) – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 476, 473BA, 473CB, 473DC |
| Cases cited: Gheko Holdings Pty Ltd v The Chief Executive Medicare [2013] FCA 164 Hicks v Aboriginal Legal Service of Western Australia [2001] FCA 483 |
| Applicant: | CQQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2525 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 3 December 2019 |
| Date of Last Submission: | 3 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Oliver Richard Jones Direct Access |
| Solicitors for the Respondents: | Ms K Evans Sparke Helmore |
ORDERS
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.
Leave is granted to the applicant to rely on the amended application filed on 8 October 2019.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.
DATE OF ORDER: 3 December 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2525 of 2016
| CQQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
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 Immigration Assessment Authority (“the Authority”) made under pt 7AA of the Act on 8 September 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.
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 Northern Province.
On 18 December 2015, the applicant applied for a Safe Haven Enterprise visa. The applicant claimed to fear harm from the Sri Lankan authorities and the Sri Lankan paramilitary group, Eelam Peoples Democratic Party (“EPDP”) because of his political activities.
On 29 July 2016, the Delegate made adverse credibility findings in respect of the applicant’s claims of political involvement. The Delegate refused to grant the applicant a Safe Haven Enterprise visa.
On 2 August 2016, the Authority sent a letter to the applicant notifying him that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a fact sheet and Practice Direction which provided the applicant with an opportunity to put on new information and submissions. The Practice Direction expressly addressed submissions and new information. Paragraphs 22 and 23 of the Practice Direction provided as follows:
22. We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.
23. If you want to give us new information, you must also provide an explanation as to why:
· the information could not have been given to the Department before the decision was made, or
· the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.
Paragraph 27 of the Practice Direction further provided as follows:
27. We may separately invite you to provide new information or to comment on new information that may be adverse to your case.
· If we invite you to provide new information, you must provide that information within the period specified in the invitation.
· If we invite you to make comments on new information, you must provide those comments within the period specified in the invitation.
Following the Authority’s letter dated 2 August 2016, the applicant’s representative provided to the Authority submissions dated 8 August 2016. Those submissions were referred to in the Authority’s reasons. The submissions included the following paragraphs:
I trust that you will contact him if any concern arises before you make a decision on your IAA review.
He is willing to attend the IAA hearing. He trusts that the IAA will invite him to appear before the IAA to give further evidence and present oral evidence if only any issue/issues arise, even after the submission, in the IAA review matter before it make a decision.
The Authority in its reasons identified the background to the application for review. The Authority had regard to the material referred to it by the Secretary under s 473CB of the Act.
The Authority referred to the applicant’s submissions. The Authority found that they did not contain new information and had regard to the same. The Court will come back to the Authority’s reasons in relation to their request for an exercise of the power of s473DC of the Act.
The Authority summarised the applicant’s claims, including that he was displaced from his home with his family during the civil war from 1991 until 2002. The applicant claimed that he was not involved with the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant claimed that he joined the United National Party (“UNP”) in 2011. The applicant further claimed that he was threatened and intimidated by opposing political candidates who told the applicant that he should not stand for election because of his Tamil ethnicity. The applicant alleged that he was tortured and then released. The applicant also alleged that he was unsuccessful in his attempt at election. The applicant further claimed that, after the election, he went into hiding. The applicant claimed that during this time when he was in hiding, people came to his home to ask for him. The applicant further claimed that he departed Sri Lanka illegally in 2012.
The Authority also summarised the applicant’s claim at the entry interview that he left Sri Lanka because he had been threatened by the Criminal Investigation Department (“CID”). The applicant claimed that the CID wanted information from the applicant about the LTTE.
The Authority made adverse credibility findings in relation to the applicant’s claimed involvement with the UNP. The Authority identified the failure of the applicant to put forward the UNP claims in his entry interview when provided an opportunity to do so. The Authority also referred to the direct question put to the applicant in the entry interview about political activity and referred to the applicant’s negative response. The Authority did not accept that, if the applicant had genuinely been a candidate in the 2011 election, he would have responded in the negative when directly asked about his political activity.
The Authority took into account the relevant country information and found it to be inconsistent with the applicant’s account in respect of his claim to have been a UNP candidate. The Authority also referred to two documents provided by the applicant.
The Authority, taking into account what were found to be significant inconsistencies, did not accept the applicant’s explanation about any omission of his UNP claims in his entry interview. The Authority did not accept that an electoral candidate would provide results of the number of votes received that were inconsistent with the independent country information.
The Authority referred to the applicant’s claims in respect of being in hiding. The Authority did not accept the applicant’s explanation for not raising the hiding claims until the Safe Haven Enterprise visa interview as being plausible.
The Authority was not satisfied that the applicant’s claims in relation to standing as a political candidate for the UNP occurred. The Authority was not satisfied that the applicant was involved with the UNP or stood as a candidate in the 2011 elections. The Authority did not accept that the applicant was threatened, tortured and kidnapped by the CID/EPDP and went into hiding. The Authority did not accept that the applicant was involved or threatened as claimed by the applicant. The Authority also did not accept that people had threatened and harassed the applicant’s family and visited the applicant’s family home seeking the applicant’s whereabouts.
The Authority referred to the applicant’s more recent claim about the CID. The Authority noted that the applicant had not advanced these claims in the Safe Haven Enterprise visa application or the Safe Haven Enterprise visa interview. The Authority found that these events did not occur.
The Authority was not satisfied that there was a real chance of harm to the applicant on the basis of displacement and disruption during the civil war in Sri Lanka. The Authority was not satisfied that the applicant faced a real chance of harm on the basis of his Tamil ethnicity.
The Authority accepted that the applicant would be identified as a failed Tamil asylum seeker who departed Sri Lanka illegally. The Authority was not satisfied that the imposition of a fine under the Immigrants and Emigrants Act 1948 (Sri Lanka) would constitute serious harm. The Authority found that there is not a real chance that the applicant would be subject to harm during processing under the Immigrants and Emigrants Act 1948 upon his return to Sri Lanka. The Authority found that the procedures under the Immigrants and Emigrants Act 1948, which the applicant would be subject to, are applied on a non-discriminatory basis under a general law applicable to all Sri Lankans. The Authority found that these procedures did not amount to persecution for the purpose of s 5H(1) of the Act and s 5J(1) of the Act. The Authority was not satisfied that there is a real chance that the applicant would face any harm as a returning failed Tamil asylum seeker.
The Authority did not accept the applicant’s UNP claims or that he has an LTTE profile or imputed political opinion that would attract adverse attention. The Authority found that there is not a real chance that the applicant would face harm on this basis if he returned to Sri Lanka.
The Authority found that the applicant did not meet the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.
The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.
Accordingly, the Authority affirmed its decision under review.
Before the Court
The Court granted leave to the applicant to rely upon an amended application filed on 8 October 2019.
Mr Oliver Richard Jones of counsel on behalf of the applicant confirmed that grounds 2 and 3 of the amended application were not pressed and that only ground 1 was pressed.
The ground
1. The Immigration Assessment Authority (hereinafter referred as “the Authority” made a jurisdictional error by failing to consider whether or not to get new information under s 473DC of the migration Act 1958 (Cth) (Act) in the form of an interview with the Applicant.
Particulars
a. The Authority found at [paragraph 5] of its decision that it holds “a limited form of review and does not conduct hearings.”
b. The Authority thereby misconstrued s 473DC of the Act as, while it is not required to conduct an oral interview with the Applicant, it is permissible under that provision for the Authority to “get” new information in the form of an oral interview with the Applicant;
c. The construction of s 473DC of the Act so as to enable the Authority to decide to conduct an oral interview with the Applicant is consistent with the High Court’s interpretation of the term “information” in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [24] per Gageler, Keane and Nettle JJ held (at [24]) being that “`new information’ must be read consistently when sued in ss 473DC, 473DD and 473DE of the Act as limited to “information” (which may or may not be recorded in a document),in the ordinary sense of a communication of knowledge about some particular fact, subject or event;”
d. By holding that it had no power to conduct an oral interview with the Applicant, the Authority necessary failed to consider whether or not such an interview should be conducted;
e. An oral interview having been sought by the Applicant, the Authority was impliedly required to consider whether or not to grant such an interview (Hicks v Aboriginal Legal Service of Western Australia [2001] FCA 483 at [11] and authority cited there.
In relation to ground 1, Mr Jones of counsel took the Court to paragraph 5 of the Authority’s reasons which, relevantly, is as follows:
The submission noted that the applicant was willing to attend a hearing with the IAA and asked that the IAA contact the applicant if any concerns arose before making a decision. The IAA is a limited form of review and does not conduct hearings. The IAA can only consider new information in exceptional circumstances. The applicant was given an opportunity to discuss his fears on return to Sri Lanka at his SHEV interview. The submission has not advanced any exceptional circumstances that warrant the IAA getting new information, nor am I satisfied that any exceptional circumstances exist that warrant the IAA getting new information.
Mr Jones submitted that the Authority had misunderstood its task under s 473DC of the Act, thereby committing a jurisdictional error.
Mr Jones further submitted that there was a materiality in respect of the alleged error, given the adverse findings in respect of the credibility of the applicant’s claims. Mr Jones, in that regard, focused upon the first sentence in relation to the applicant being willing to attend a hearing and of the statement in the second clause of the second sentence that the Authority does not conduct hearings. Mr Jones submitted that, in those circumstances, the Court should find that the Authority had misunderstood and misconstrued its powers under s 473DC of the Act and, in particular, that the Authority had failed to appreciate that it had the power under s 473DC of the Act to receive oral evidence.
Mr Jones took the Court to the applicant’s submissions dated 8 August 2016. Mr Jones emphasised the reference to the request of the applicant’s representative to provide further evidence and present oral evidence. Mr Jones submitted that in the context of that request, the Authority’s statement in the second sentence of paragraph 5, in light of the reference to the willingness to attend a hearing in the first sentence, reflected a misunderstanding by the Authority of its jurisdiction and its power to receive further evidence or oral evidence under s473DC of the Act.
The Authority’s reasons are not to be read with a keen eye for error. The Authority, in the second sentence of paragraph 5 of its reasons, in referring to the proposition that the Authority, under pt 7AA, does not conduct hearings is, in substance, a reflection of the same language found in the simplified outline in s 473BA of the Act, which refers in the third-last paragraph as follows:
The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances, the Immigration Assessment Authority may consider new material and may invite referred applicants to provide or comment on new information at an interview or in writing.
It is common ground that the outline to s 473BA of the Act is part of the Act to which the Court is entitled to have regard in relation to the construction of pt 7AA of the Act (see the learned Jagot J in Gheko Holdings Pty Ltd v The Chief Executive Medicare [2013] FCA 164 at [29] and [30]). The proposition that the Authority does not hold or conduct hearings does not reflect any misunderstanding or misconstruction of pt 7AA of the Act and is not a basis to infer that the Authority misunderstood or misconstrued the powers conferred under s 473DC of the Act.
In particular, the second part of the Authority’s reasoning in the last sentence of paragraph (5) clearly identifies a correct understanding by the Authority of the powers under s473DC of the Act, including s 473DD of the Act. Further, as is apparent from the letter sent to the applicant explaining that the application had been referred for review and from the Practice Direction, there was a clear identification, for the benefit of the applicant, of limited circumstances in which the Authority could receive new information. There is no suggestion that what was contained in paragraphs 22 and 23 of the Practice Direction reflect any misunderstanding of a statutory provision. Paragraph 27 of the Practice Direction clearly acknowledges an ability to obtain new information or to comment on the same in writing.
Whilst the referral letter dated 2 August 2016 is not, of itself, part of the Authority’s reasons, the Authority has expressly referred to the letter in response to the letter dated 2 August 2016, being the applicant’s submissions. The Authority in that regard, referred to s 473DC of the Act, and identified that there was no new information in the submission. The reference in the Authority’s reasons to the letter dated 8 August 2016 was clearly in the context of having sent the applicant the letter of 2 August 2016 with the Practice Direction, which included the provisions to which the Court has referred. The reference in the Authority’s reasons to s473DC of the Act is consistent with the Authority correctly understanding and appreciating that it had a power under s 473DC of the Act to receive oral evidence and/or written comment. There is no warrant in the present case for finding that the Authority misconstrued s473DC of the Act or failed to appreciate that it had a power to receive oral evidence under s 473DC of the Act.
No jurisdictional error as alleged in ground 1 of the amended application is made out.
Accordingly, the amended application is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 3 December 2019 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 3 March 2020
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