CQR16 v Minister for Immigration

[2018] FCCA 2191

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQR16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2191

Catchwords:
MIGRATION – Protection (class XA) visa – applicant asserted jurisdictional error, bias and identification of a wrong issue by the Independent Assessment Authority (“IAA”) – IAA correctly examined issues relevant to the establishment of a convention-based claim for protection and complementary protection – relevance and weight placed on material is a matter for the IAA – application dismissed.

Legislation:

Migration Act 1958, ss.5H, 5J, 36(2)(a), 36(2)(aa), 36(2A), 91K, 473CB

Cases cited:
AQN15 v Minister for Immigration & Anor [2016] FCA 571

BHK15 v Minister for Immigration and Border Protection [2016] FCA 569

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Tran v Minister for Immigration and Border Protection [2014] FCA 533
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: CQR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 419 of 2016

Judgment of: His Honour Judge Wilson

Hearing date: 1 August 2018

Date of Last Submission: 1 August 2018

Delivered at: Perth

Delivered on: 1 August 2018

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: None

Counsel for the First Respondent:

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. The application filed on 19 September 2016 is dismissed.

2. The applicant to pay the first respondent’s costs in the fixed sum of $5 000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 419 of 2016

CQR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

1. By application filed 19 September 2016, the applicant sought judicial review of a decision of the Immigration Assessment Authority (“IAA”) dated 22 August 2016 in which the IAA affirmed a decision of the minister’s delegate not to grant the applicant the protection visa that he sought.

2. In support of his application to this court the applicant relied on three grounds of review, none of which was supported by particulars, so it was impossible to tell on what propositions of fact and law the applicant relied to base his contentions that the IAA fell into jurisdictional error.  The grounds of review were as follows (with errors in the original) –

   (1)Jurisdictional error.

   (2)Bias based on conscious or unconscious prejudice by ignoring relevant material.

   (3)Identifying a wrong issue on a wrong question.

3. Despite being ordered to provide any amended application by 15 December 2016, the applicant did not do so nor did he provide written submissions 42 days prior to the hearing, whether by the date ordered or at all.

4. The question for me on this application was whether I should order the issue of constitutional writs on the basis that the IAA fell into jurisdictional error.

Synopsis

1. In my view the applicant failed to demonstrate that the IAA fell into jurisdictional error with the consequence that this application must be dismissed and the applicant must pay the minister’s costs.

Factual recital

1. The applicant, a Sri Lankan citizen, arrived on Cocos Islands as an unauthorised maritime arrival on 4 June 2013. On 23 September 2013 the applicant applied for a protection (class XA) visa. That application was deemed invalid pursuant to s 91K of the Migration Act (“Act”), a matter on which a departmental officer wrote to the applicant’s representative on 4 September 2014.  On 19 August 2015 the department invited the applicant to apply for a temporary protection visa or a safe haven (enterprise) (subclass 790) visa.  The applicant applied for a temporary protection visa on 23 September 2015.  On 12 November 2015 the applicant was invited to attend an interview with the minister’s delegate to be held on 27 November 2015.  The minister’s delegate duly interviewed the applicant and on 5 July 2016 wrote to the applicant with her decision refusing to grant the protection visa that the applicant sought.

2. On 8 July 2016 the delegate’s decision was referred to the IAA under part 7AA of the Act. On 22 August 2016 the IAA decided to affirm the delegate’s decision not to grant the applicant the protection visa.

3. In order to understand the IAA’s treatment of the applicant’s claims, it is necessary to descend to the detail of those claims as they were recorded in the statement that accompanied the applicant’s application for the temporary protection visa.  Relevantly paraphrased, they were as follows –

   a)the applicant was then a 23 year old citizen of Sri Lanka who was born in Batticaloa, Eastern Province, Sri Lanka, of Tamil ethnicity and Hindu religion;

   b)he had been mentally disturbed by the events that had happened to him in his life;

   c)he feared harm from the Sri Lankan Army (“SLA”), the police and the criminal investigations department (“CID”), on account of his Tamil ethnicity and on account of his membership of a particular social group, namely as a family member of a person accused of being a member of the Liberation Tigers of Tamil Eelam (“LTTE”);

   d)he has three brothers and two sisters who, with the exception of a brother living in Qatar, all live in Sri Lanka;

   e)he left Sri Lanka because he feared the Sri Lankan authorities;

   f)in February or March 2005 the applicant’s brother Kugathas was kidnapped by the LTTE while working in an area controlled by the LTTE and he disappeared;

   g)in 2006 the applicant’s father was imprisoned by the SLA and held until his release in 2008;

   h)the SLA alleged that the applicant’s brother was to fight for the LTTE against the SLA;

   i)in 2009 Kugathas returned so in October 2009 the CID threatened to take the applicant unless the applicant’s father surrendered Kugathas;

   j)in 2010 the SLA started looking for Kugathas and when they could not find him they began looking for the applicant who had gone to Qatar;

   k)in January 2010 the SLA took the applicant’s father and detained him for a day;

   l)between February and May 2012 Kugathas returned to Sri Lanka;

   m)in July 2012 the applicant left Qatar and returned to Sri Lanka to see his ailing mother when, on his arrival, the CID attempted to arrest him, taking the applicant’s passport;

   n)after 20 days the CID requested the applicant’s uncle to bring the applicant to the CID office but as the applicant was afraid and he could not return to Qatar without his passport, he decided to flee to Australia.

   o)he is unable to rely on the Sri Lankan Government for protection, as the SLA and the CID are controlled by the government;

   p)the Sri Lankan Government is Sinhalese, the applicant is Tamil and that Sinhalese do not wish to help Tamil people;

   q)the government will not help him;

   r)if returned to Sri Lanka he will not be safe;

   s)he will be discriminated against because he is a Tamil;

   t)he is unable to relocate to another area in Sri Lanka because the risk to him extends throughout the whole of the country; and

   u)he fears harm including abduction, physical assault and murder at the hands of the SLA, CID and police because of his Tamil ethnicity and as a family member of a person suspected of being a member of the LTTE, he has been personally questioned, he cannot rely on the protection of the Sri Lankan state and he cannot relocate safely anywhere else in Sri Lanka.

4. The IAAs decision was given on 22 August 2016.  Before addressing the aspects of the IAAs decision referable to each ground of review, some more general comments can be made about the IAAs reasons.  Those include –

   a)that the delegate was not satisfied that there was a real chance of serious harm or a real risk of significant harm if the applicant was returned to Sri Lanka;[1]

   [1] Immigration Assessment Authority decision and reasons, 22 August 2016, [2]

   b)the IAA had regard to the material referred to it by the secretary under s 473CB and no further information was received or obtained;[2]

   [2] Ibid [3][4]

   c)the applicant’s claims in summary form were in paragraph 5;

   d)the operative provisions of s 5H of the Act were in paragraph 6;

   e)the operative provisions of s 5J of the Act were in paragraph 7;

   f)a summary of the information concerning the applicant’s father’s arrest and detention were in paragraphs 9 to 13;

   g)a summary of the information concerning the applicant’s real or imputed pro LTTE opinion was in paragraphs 14 to 21;

   h)a summary of the applicant’s position as a failed asylum seeker and as an illegal departee was in paragraphs 28 to 39;

   i)the conclusion that the applicant did not meet the definition of refugee in s 5H(1) and therefore that he failed to meet s 36(2)(a) of the Act was in paragraph 40;

   j)an overview of the assessment of complementary protection was in paragraph 41;

   k)the elements of s 36(2A) were in paragraph 42; and

   l)the IAAs findings that there were no grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, the applicant faced a real risk of significant harm was in paragraphs 41 to 49.

In this court

1. The applicant’s grounds of review have been recorded above.  Without particulars they were meaningless as they gave no insight into the propositions of fact or law on which the applicant relied to base his assertions of the existence of jurisdictional error.  For that matter, a line of cases in the Federal Court that binds me has held that grounds of review that do not have subjoined to them particulars of the ground alleged are liable to be dismissed.  Those authorities include WZATH v Minister for Immigration and Border Protection,[3] BHK15 v Minister for Immigration and Border Protection,[4] AQN15 v Minister for Immigration & Anor,[5] and WZAVW v Minister for Immigration and Border Protection.[6]

   [3] [2014] FCA 969

   [4] [2016] FCA 569

   [5] [2016] FCA 571

   [6] [2016] FCA 760

2. In ground one the applicant simply asserted “jurisdictional error”.  I was unable to ascertain whether, by applying principles set out in Craig v State of South Australia[7] or in Minister for Immigration and Multicultural Affairs v Yusuf[8] the applicant was asserting that the jurisdictional error lay in the IAA’s –

   a)identification of a wrong issue;

   b)asking itself a wrong question;

   c)ignoring relevant material;

   d)relying on irrelevant material,  or

   e)making an erroneous finding or reaching a mistaken conclusion. 

   [7] (1995) 184 CLR 163

   [8] (2001) 206 CLR 323

3. It fell to the applicant to advance whatever evidence or argument he wished, as was held in case Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002[9] and also in Minister for Immigration and Citizenship v SZGUR.[10]  He failed to do so.

   [9] [2003] HCA 60

   [10] (2011) 241 CLR 594

4. In my view, ground one failed.

Ground two

1. Under this ground the applicant asserted bias.  Again, no particulars were given.  It was not possible to tell whether the applicant was arguing apprehended bias or actual bias.  It did not matter as the bias allegation is a serious allegation that must be firmly and distinctly made and clearly proven, as the High Court held in Minister for Immigration and Multicultural Affairs v Jia Legeng.[11]  Here, no attempt was made to firmly and distinctly make the bias claim.  No such claim was proven.  I was unable to assess whether a fair minded lay observer, properly informed as to the nature of the proceeding, the matters in issue and the conduct of the IAA, might reasonably apprehend that the IAA may not have brought an impartial mind to the resolution of the question to be decided.  That was the test for apprehended bias in Re Refugee Review Tribunal; Ex parte H.[12]

   [11] (2001) 205 CLR 507

   [12] [2001] HCA 28

2. In my view, ground two failed.

Ground three

1. Under this ground the applicant said the IAA identified a wrong issue. He seemed to have also said that the IAA asked itself a wrong question, although by reason of the grammatical errors in ground three it was not possible to definitively say. At all events, it seemed to me that the IAA did not ask itself a wrong question nor did it identify a wrong issue. To the contrary – the issues relevant to the establishment of a convention based claim for protection under s 36(2)(a) were correctly examined, as were the issues relevant to the establishment of a complementary based claim for protection under s 36(2)(aa). In the absence of particulars it was impossible to tell how the applicant attempted to make out this ground. As the minister pointed out, it was for the IAA to identify the material it found relevant and to give it the appropriate weight, citing Tran v Minister for Immigration and Border Protection.[13]

   [13] [2014] FCA 533

2. I detected no error in ground three. 

Conclusion

1. Today I asked the applicant to tell me in his own words what he said the tribunal did wrong.  He said his file was not read properly.  I asked him to develop that proposition.  He answered by saying that his claim was not accepted.  I asked whether he was in reality saying that he complained in this case that the tribunal failed to find in his favour.  He answered in the affirmative.  That is not jurisdictional error.

2. All grounds failed.

3. I dismiss this proceeding and order the applicant to pay the minister’s costs $5 000.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:              17 August 2018