CRA16 v Minister for Immigration
[2018] FCCA 2877
•12 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRA16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2877 |
| Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – whether adequate opportunity provided to produce additional documents to substantiate claim – whether failure to consider correct social group to which the applicant belonged – whether failure to have regard to relevant consideration or relevant material – whether jurisdictional error. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), Pt.7AA, Div.3, ss.5H, 5J, 36, 46A, 65, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DF, 473FA, 473GA, 473GB, 473HB, 473HD, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) |
| Cases cited: AFK16 v Minister for Immigration & Border Protection [2016] FCCA 1826 Minister for Immigration & Border Protection v AMA16 [2017] FCAFC 136 Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 |
| Applicant: | CRA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2541 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 20 March 2018 |
| Date of Last Submission: | 20 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 12 October 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms A Ladhams |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
SYG 2541 of 2016
| CRA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 20 September 2016 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Safe Haven Enterprise Visa (“Safe Haven Visa”) under s.65 of the Migration Act.
A copy of the IAA Decision dated 25 August 2016 is at Court Book (“CB”) 178-191. The CB was tendered and is Exhibit 1 in these proceedings.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia as an unauthorised maritime arrival on 27 August 2012: CB 48;
b)on 10 September 2015 the applicant was informed that the Minister had exercised the power under s.46A(2) of the Migration Act to “lift the bar” and allow the applicant to lodge an application for a Safe Haven Visa: CB 20-25;
c)the applicant, with the assistance of registered migration agents, lodged an application for a Safe Haven Visa on 11 November 2015 making certain claims which are adequately summarised in the IAA Decision as set out at [4(b)] below (and which appear in full at CB 65-67);
d)on 20 January 2016 the applicant attended an interview with the Delegate and on 5 July 2016 the Delegate’s Decision was to refuse the applicant a Safe Haven Visa: CB 87-94 and 114-154;
e)in accordance with s.473CA of the Migration Act, the Delegate's Decision was referred to the IAA on 21 July 2016 and the applicant was sent an acknowledgment and information letter by the IAA on 21 July 2016 (“Referral Acknowledgement Letter”): CB 155-173; and
f)on 25 August 2016 the IAA affirmed the Delegate's Decision not to grant the applicant a Safe Haven Visa and on 20 September 2016 the applicant filed the Judicial Review Application in this Court: CB 178 and 187.
IAA Decision
In the IAA Decision affirming the Delegate’s Decision, the IAA:
a)had regard to the material that was before the Delegate pursuant to s.473CB of the Migration Act and confirmed no further information was obtained or received: CB 179 at [3];
b)summarised the applicant’s claims in the following terms as set out at CB 179-180 at [4]:
• The applicant resided in a refugee camp in … [name of town deleted] from 1994 to 1998. He witnessed the killing of a suspected LTTE member in 2006, saw dead bodies of Tamil villagers who had been shot, and was aware of Tamils who were taken into custody in 2005 and 2010 and never returned.
• In 2008, he was walking home and was stopped by drunk soldiers and accused of being an LTTE member. He claims he was questioned and physically assaulted by the soldiers who took his identity card and told him to report the next day to the army camp for questioning. He was interviewed the next day at the army camp. He understood that he had been questioned and assaulted because he had been out late at night.
• The applicant was the head of the local village sports club from 2008 to 2010 and that in 2010 criminal groups were active in the village conducting criminal activities and harassing women. He organised members of the sports club into night watches to protect the women and villagers. He received a threatening telephone call from someone telling him to stop the night watches. The applicant believes this person was a CID officer.
• From 2008 the applicant was working as a fisherman in an area where fishing rights were subject to dispute between the Tamil and Muslim communities. The Muslim community objected to Tamils fishing in the area and on 18 June 2012 he was threatened by CID officers and warned to discontinue fishing there. The applicant told his employer about the matter, but as he owed that person money he could not stop working for him and he continued to fish. Two days later, on 20 June 2012, he and other fishermen were physically attacked at the fishing port by members of the Muslim community. He escaped and travelled to the village of his mother−in−law and stayed there in hiding until he departed from Sri Lanka on 10 August 2012. Since the attack in June, members from the Muslim community accompanied by CID officers have visited his parents' home on three occasions and threatened they would kill the applicant if they caught him.
• The applicant is fearful that on return to Sri Lanka he will be penalised for leaving unlawfully. He fears that during this process he will come to the adverse attention of the CID and other authorities and would be targeted as he has come to attention before.
c)identified relevant legislative provisions of the Migration Act to be applied in determining if the applicant satisfies the criterion to be granted a Safe Haven Visa: CB180 at [5]-[6] and 186 at [24]-[25];
d)accepted that the applicant was a Tamil from a region in the Northern Province of Sri Lanka: CB 180 at [7];
e)considered it plausible that as a Tamil living in northern Sri Lanka during the period of the civil war, the applicant would have spent some time living in a refugee camp as claimed and that he could have witnessed deaths and disappearances, therefore accepting that this experience could have raised a subjective fear for the applicant that he may experience similar harm: CB 180-187 at [8];
f)taking into account that since the cessation of hostilities in 2009 the security situation in Sri Lanka has improved, and that the applicant:
i)did not have any links with the Liberation Tigers of Tamil Eelam (“LTTE”); and
ii)was not involved in any other activities during the civil war that the country information indicates would cause him to be of concern to the authorities now,
the IAA was not satisfied that there is a real chance of serious harm arising for the applicant due to his experiences during the civil war: CB 180-181 at [8];
g)accepted that it was plausible the applicant could have been questioned and assaulted by soldiers if he was out during curfew in 2008, however, did not accept that this would lead to a profile that would attract adverse attention if the applicant were to return to Sri Lanka now as there is no indication that the military had any interest in the applicant after this event, and had the military had any serious concerns that the applicant was involved with the LTTE it was likely he would have been subjected to greater scrutiny at the time, therefore the IAA did not accept that this incident resulted in any ongoing interest in the applicant by the Sri Lankan authorities, or that it gives rise to a real chance of harm on return to Sri Lanka: CB 181 at [9];
h)noted that the events with the “grease men” (also known as “Grease Devils” and “Grease Yakas”, and hereafter the latter name is used), whose existence was confirmed in country information, was said by the applicant to have taken place in 2010, which is in conflict with independent country information that indicates the activity took place from early 2011, and this inconsistency casts significant doubt on the applicant's claims, though even if the IAA were to accept that the applicant banded together a group of sports club members to counter the Grease Yakas as claimed, this still does not give rise to well−founded fear of serious harm: CB 181-182 at [10];
i)was willing to accept that the applicant may have received a threatening telephone call in 2010, but did not accept that the call was from the CID as the independent country information did not indicate there were any links between the Grease Yakas and the CID, and the people most affected by the night watches would have been the Grease Yakas, and it is therefore likely that any threats to desist from the night watches would have come from the Grease Yakas: CB 182 at [11];
j)the IAA therefore accepted the applicant received a threatening call from the Grease Yakas, but the evidence indicates that the Grease Yakas’ activity was limited to a period of time in 2011 and is not ongoing, and as the Grease Yakas are no longer active there is not a real chance the applicant would face any harm from the Grease Yakas, or others associated with them on return to Sri Lanka, nor was it satisfied that the applicant faces a real chance of harm from the CID in connection with the alleged Grease Yakas’ events: CB 182 at [11];
k)noted the applicant stated he was first harassed at a pier by CID officers on 18 June 2012, and that he referred to physical attacks at the fishing pier on 20 June 2012, whereas the available reporting on the fishing dispute does not refer to CID harassment of individual fishermen or physical attacks at the pier at any time. Rather, the available reporting refers to damage to property at the pier in July 2012, after the applicant states he had left the area and the only indication of violence or physical assault is the reference to violent demonstrations at a court, but again this was in July 2012 after the applicant had left the area: CB 182-183 at [12]-[14]. In this regard the IAA placed considerable weight upon a report of the Human Rights Commission of Sri Lanka (“HRC Report”) in relation to the fishing rights dispute in the relevant area, regarding the HRC Report as detailed, reputable and independent: CB 183 at [14];
l)as the applicant's account of the pier incident is not in accord with credible available country information (including the HRC Report), and while accepting the applicant may have been a fisherman in the area at the time of the ongoing dispute, the IAA did not accept the applicant's account that he was harassed by the CID and subjected to an attack at the pier as claimed, nor that he had any involvement that would bring him to the attention of the CID or the Muslim community, or that his home and family have been visited on a number of occasions as a result of his involvement in the fishing dispute: CB 183-184 at [14]-[15];
m)accepted that because the applicant departed Sri Lanka illegally, the applicant would be subject to questioning and investigation on return to Sri Lanka under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“I & E Act”) because country information indicates that returnees may be arrested and charged, then remanded in custody at the airport or at a prison while waiting to be brought before a magistrate, though this remand period would normally be 24 hours but may be up to four days if detention over a weekend is involved, however, if a person pleads guilty they will be fined and discharged: CB 184 at [17]-[18];
n)considered it is likely that on return the applicant will be charged under the I & E Act, fined and released, or, should he plead not guilty, he will be released on his own personal surety, and was not satisfied that the imposition of a fine would constitute serious harm and even if he were to have difficulty meeting the cost of the fine there is scope to request that the fine be paid by instalments. Further, having found that the applicant has no profile indicating possible connection to the LTTE, the applicant would not be subjected to any mistreatment on arrival back in Sri Lanka that would extend beyond routine processing or which would amount to serious harm: CB 184-185 at [18]-[20];
o)found that the applicant does not have actual or perceived links to the LTTE and would not be of concern to the authorities on return to Sri Lanka, and thus was not satisfied that he faces a real chance of harm as a returnee and failed asylum seeker, or a real chance of persecution as a Tamil fisherman who departed Sri Lanka illegally, and was therefore not satisfied that he has a well−founded fear of persecution: CB 185 at [22];
p)found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act and therefore did not meet the criteria for recognition as a refugee under s.36(2)(a) of the Migration Act: CB 185 at [23];
q)found that there was not a real chance that the applicant faced serious harm because of his civil war experiences for the reasons set out in relation to the Refugee Convention criteria: see [4(d)-(o)] above, CB 186 at [27];
r)accepted that because the applicant had departed Sri Lanka illegally he would be questioned and subject to security and character checks under Sri Lanka’s criminal justice system upon his return, and that he may be charged with an offence under the I & E Act because of his illegal departure, but that his detention in custody whilst waiting to be brought before a magistrate before being granted and released on bail: see [4(m)-(n)] above, did not amount to significant harm, and that the applicant would not be exposed to significant harm during those proceedings, noting that the IAA found that no custodial sentences had been imposed in relation to such charges, and that the imposition of a fine did not amount to significant harm: CB 186 at [28];
s)was not satisfied that there is a real risk that the applicant will face torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, including as a result of conditions he may face during a short period in custody notwithstanding that the IAA accepted that conditions in prison or detention may be poor, but the evidence did not suggest that the applicant faces the death penalty or arbitrary deprivation of his life, and therefore did not accept that the poor conditions and overcrowding are intended to cause extreme humiliation and was not satisfied that he would suffer intentionally inflicted cruel or inhuman treatment or punishment or any other form of significant harm: CB 187 at [29]; and
t)found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm, and that the applicant therefore did not meet the complementary protection provisions under s.36(2)(aa) of the Migration Act.
Judicial Review Application
There are two grounds of review in the Judicial Review Application as filed. Those two grounds of review are set out below at [12] (Ground 1) and [22] (Ground 2).
On 18 January 2017 a Registrar of this Court made orders (“Registrar’s Orders”) under which the applicant was provided an opportunity to file and serve:
a)any amended Judicial Review Application;
b)any further supporting affidavits (noting the applicant’s affidavit in support of his Judicial Review Application affirmed 20 September 2016 did no more than make bare assertions that the applicant satisfied the criteria for a Safe Haven Visa, that he had a good case on the merits and the law, reiterated Grounds 1 and 2, and annexed the IAA Decision); and
c)a written outline of submissions.
The applicant filed no further materials with the Court as he was permitted to do by the Registrar’s Orders, or otherwise.
Pursuant to the Registrar’s Orders the Minister filed a written outline of submissions, details of which are set out below: see [14] (Ground 1) and [24] (Ground 2).
When the matter came on for hearing on 20 March 2018 the Court provided an opportunity for the applicant, with the assistance of an interpreter, to provide oral submissions. To the extent that they were relevant the applicant’s oral submissions are summarised at [13] in relation to Ground 1, and [23] in relation to Ground 2, below. At hearing the applicant raised a further matter in his oral submissions, and that matter is dealt with at [35]-[38] below.
Consideration
Jurisdictional error required
The IAA Decision is liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the IAA will constitute jurisdictional error if the IAA:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given to it under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. Jurisdictional error might also arise if the IAA denies the applicant such procedural fairness as is required by the terms of the Migration Act (in this case Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB): SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; AFK16 v Minister for Immigration & Border Protection [2016] FCCA 1826 at [12] per Judge Cameron, or if the IAA Decision is affected by legal unreasonableness: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50, and see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
It is for the applicant to make out his case and establish jurisdictional error in the IAA Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15] per Jagot J.
Ground 1
Ground 1 is as follows:
The IAA erred in law by not providing adequate opportunity to the applicant to produce additional documents to substantiate the applicant's claim.
Particulars
The applicant requested for additional time to produce further documents, however the IAA refused to grant additional time citing that the matter needs to be disposed urgently as per the government directive.
Applicant’s submissions
The applicant’s oral submissions at hearing (the applicant did not file written submissions: see [7] above) did not specifically address Ground 1, and save for a submission that:
a)it was difficult to obtain extra evidence from Sri Lanka after the applicant had arrived in Australia in 2012; and
b)the applicant had provided all of the evidence that he brought to Australia to the Department,
the applicant said nothing of relevance in relation to Ground 1. The Court further notes that there was no evidence filed by way of affidavit in relation to Ground 1, and nothing in the CB was referred to by the applicant in support of Ground 1.
Minister’s submissions
In relation to Ground 1 the Minister submitted that:
a)the applicant asserts that the IAA erred by refusing to provide him with the opportunity to produce additional documents and he claims that the IAA's reason for doing so is that there is a government directive requiring the urgent disposal of matters;
b)there is no evidence before the Court to support the applicant's claim that he requested additional time to provide documents to the IAA and that the IAA refused such a request;
c)on 21 July 2016 the applicant was sent the Referral Acknowledgement Letter, with a copy of the IAA’s Practice Direction (“IAA Practice Direction”) which makes clear that any submission in relation to the Delegate's Decision, or new information that the applicant asks the IAA to consider, must be provided within 21 days of the referral of the decision to the IAA, and that the IAA Decision was to be made 35 days after the acknowledgement of referral was sent to the applicant;
d)the applicant did not provide any information to the IAA within the time frames, nor does it appear that the applicant made any effort to communicate with the IAA that he was seeking further time to provide additional documents to the IAA, and it is therefore clear that there is no jurisdictional error on the part of the IAA for failing to consider a request for additional time that was never in fact made;
e)in the context of the provisions of Part 7AA of the Migration Act and to the extent that Ground 1 can be characterised as an allegation of denial of procedural fairness, it cannot succeed, as there has been no breach by the IAA of any of the provisions in Division 3 of Part 7AA of the Migration Act or ss.473GA or 473GB of the Migration Act;
f)the applicant says that he wished to provide “additional documents to substantiate [his] claims” to the IAA, which suggests that the documents that the applicant wished to provide may be “new information” within the meaning of s.473DC(1) of the Migration Act, though pursuant to s.473DB(1) of the Migration Act, the IAA would ordinarily be expected to conduct the review without accepting any new information from the applicant, and even if the applicant did provide new information within the 21 day time frame provided, the IAA would only be able to consider that information if the requirements of s.473DD of the Migration Act were met;
g)were the applicant to prove to the Court that he requested that the IAA provide him additional time to allow him to provide further evidence, it would not follow that any failure by the IAA to grant the applicant additional time would have resulted in the IAA considering any additional evidence provided by the applicant, and while the applicant asserts that the IAA indicated a need to “urgently dispose” of the application, the source of any such statement by the IAA, if made at all, is not immediately apparent; and
h)it is clear however that the IAA is to conduct an efficient and quick review: Minister for Immigration & Border Protection v AMA16 [2017] FCAFC 136 at [12]-[13] per Griffiths J, and it is not a jurisdictional error for the IAA to refer to this objective, nor was it a jurisdictional error for the IAA to make the IAA Decision when it did, namely, 35 days after the matter was referred to it, as s.473DB(2) of the Migration Act clearly provides that the IAA can make a decision at any time after the matter is referred.
Consideration – Ground 1
Ground 1 essentially claims the applicant was denied procedural fairness when requesting additional time to provide supporting documents to the IAA. In the IAA Decision the IAA expressly stated:
3. I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). No further information was obtained or received.
CB 179 at [3].
On 21 July 2016 the IAA sent the applicant the Referral Acknowledgement Letter: CB 160-162, attaching a Tamil translation of the “What you need to know about the IAA” information sheet: CB 166-169. The Court notes the following is stated in the English language version of the information sheet: CB 163-165:
Can I provide new information to the IAA?
We can only consider new information if there are exceptional circumstances to justify considering the new information. New information is information that is relevant and was not before the department when it made its decision.
If there is new information you want us to consider, you must also provide an explanation why the information:
• could not have been provided to the department before it made the decision to refuse you a protection visa, or
• is credible personal information that, had it been known to the department, may have affected the department's decision.
This explanation should be no longer than 5 pages and accompany any new information you give us. Any new information we have not requested must be given to us within 21 days of your case being referred to us by the department.
In very limited circumstances, we may invite you to give us new information or comments about your case in writing or at an interview.
Can I make a submission to the IAA?
You can provide a written submission on:
• why you disagree with the department's decision, and
• any claim or matter you presented to the department that was not considered.
Your submission should be no longer than 5 pages and given to us within 21 days of your case being referred to us by the department.
The Referral Acknowledgement Letter also enclosed and provided the applicant with a copy of the IAA Practice Direction: CB 170-173, containing more information on the IAA process and how the applicant could provide new information, and in what circumstances and under what time restrictions he could do so: CB 170-173. While the IAA Practice Direction was not translated into Tamil, the applicant was directed to the Translating and Interpreting Service for assistance if required: CB 161.
The IAA informed the applicant that he had 21 days to provide a response, that is to comment or provide new information, and that pursuant to s.473DF(4)(a) of the Migration Act if the applicant did not provide any comment or information in response to the invitation that the IAA may make a decision without taking any further action to get information or comment. The Court notes that pursuant to reg.4.42(b)(iii) of the Migration Regulations 1994 (Cth) the minimum statutory period in which the applicant may give information or comments is 14 days after the invitation. The IAA allowed an additional 7 days for the applicant to comment or provide new information.
There is no evidence in support of the applicant’s claim of either a request to the IAA from the applicant for additional time, or a refusal by the IAA to grant additional time, and the applicant cannot therefore satisfy the Court he has been denied procedural fairness as alleged in Ground 1. Further, the material that is before the Court is plainly contrary to the applicant’s claim in Ground 1, and there is nothing suggesting the applicant corresponded with, or otherwise contacted, the IAA. Without any evidence of any request to provide new information by the applicant, or of any response to such a request, the Court cannot be satisfied any attempt to provide new information or make submissions to the IAA was made by the applicant. No jurisdictional error arises from the proper application of statutory provisions, and in relation to Ground 1, there is no evidence of improper application of the relevant statutory provisions. It follows from the above that Ground 1 must fail.
In any event:
a)part 7AA of the Migration Act does not require the IAA to provide an opportunity to provide further information beyond what was before the Delegate and has been referred pursuant to s.473CB of the Migration Act: Migration Act s.473DB. The Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) notes the express intention of the Parliament to limit the opportunity for an applicant to provide further information to the IAA, and with reference to s.473DB of the Migration Act explained at [893]:
The complete package of reforms proposed in this Bill intend to place an emphasis on all fast track applicants to articulate their protection claims in a legitimate and authentic way at the earliest possible opportunity. As such, the IAA's primary function of limited review is underpinned by a presumption that there should be no further requirement to consider new information in a case involving a fast track review applicant. A fast track review applicant has had ample opportunities to present their claims and supporting evidence to justify their request to international protection throughout the decision-making process and before a primary decision is made on their application.
b)section 473DC(2) of the Migration Act explicitly states the IAA has no duty to “get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”; and
c)section 473FA of the Migration Act requires the IAA to pursue the object of providing a mechanism of limited review that is, amongst other things, efficient and quick,
which further demonstrates that even if the applicant had requested more time to provide documents there is no guarantee that the IAA would have had to comply with such a request.
In the above circumstances, no jurisdictional error is established by ground 1.
Ground 2
Ground 2 is as follows:
The IAA and the delegate failed to consider the correct social group to which I belong, being an ethnic Tamil, hailing from a LTTE controlled area, leader of the local village/community, perceived to have links to LTTE and detained and tortured on account of such perceived links.
Particulars
The IAA and the delegate failed to consider the correct social group (PSG) to which I belong, being an ethnic Tamil hailing from a LTTE controlled area, leader of the local village/community, perceived to have links to LTTE and detained and tortured on account of such perceived links. They have considered only some of the characteristics of the social group viz ethnic Tamil and hailing from LTTE controlled area but have not considered others aspects like head of the village/community and torture for perceived links to LTTE.
Applicant’s submissions
The applicant provided no written submissions in accordance with the Registrar’s Orders: see [7] above, and nor did the applicant make any discernible oral submissions in relation to Ground 2. The Court further notes that there was no evidence filed by way of affidavit in relation to Ground 2, and nothing in the CB was referred to by the applicant in support of Ground 2.
Minister’s submissions
In relation to Ground 2 the Minister submitted that:
a)the applicant asserts that the IAA erred by failing to consider the applicant's correct social group and the particulars of this ground argue that the IAA did not consider the applicant's role as leader of the village or community and that he was subject to torture for his perceived links to the LTTE;
b)the applicant did not make a claim that he was the leader of a village or community though he did state in his statement of claims that he was the head of a sports club in his village and that, as a result of this, he was “a person in a position of responsibility”, but to the extent that the applicant's claim relates to the applicant being the head of a village sports club, this was the subject of detailed consideration by the IAA in the IAA Decision at CB 181-182 at [10]-[11];
c)no further claim that the applicant would face harm as a community leader was expressly advanced by the applicant nor does any such claim arise squarely on the materials before the IAA, therefore the IAA's failure to consider any such claim does not amount to jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [60] per Black CJ, French and Selway JJ (“NABE (No 2)”); and
d)claimed perceived links to the LTTE were the basis of the applicant’s protection claim that army officers accused him of being an LTTE member, interviewed him and assaulted him (“2008 Incident”) and this was considered by the IAA: CB 180-181 at [8]-[9]. In particular the IAA noted that the applicant stated that “this problem” in relation to the claimed incident with the army officers was “over” and found that the applicant did not have any links with the LTTE: CB 187 at [9], and thus the applicant did not face a risk of harm on this basis, and therefore, contrary to the applicant's assertion, the IAA did consider the applicant's claim that he was subject to torture for perceived links to the LTTE.
Consideration – Ground 2
Ground 2 posits that the IAA fell into error in failing to consider the applicant’s claims of being a member of a particular social group, particularly:
a)his being an ethnic Tamil;
b)his being an ethnic Tamil in an former LTTE controlled area;
c)his being a leader of the local village or community; and
d)his being perceived to have links to LTTE, and having been detained and tortured on account of such perceived links as stated when detailing the 2008 Incident.
It is accepted that the IAA will fall into error where it fails to consider an applicant’s claims to meet the criteria for the visa applied for, and its component integers, which are considerations mandatorily relevant under the Migration Act: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J. The IAA was aware of the criteria the applicant was required to meet: it referred to and set out s.36(2)(a) and (aa) of the Migration Act: CB 185 at [23], 187 at [30] and 190-191; it explained in the IAA Decision what was required under s.5J of the Migration Act and set out the components of a “well-founded fear of persecution”: CB 180 at [6], 185 at [21] and 189, and referred to and set out the definition of “refugee” in s.5H of the Migration Act: CB 180 at [5], 185 at [21] and [23] and 188. When considering if the IAA failed to consider a claim, the Court must consider if the IAA failed to “engage in an active intellectual process directed at that claim or criteria”: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [45]-[46] per Griffiths, White and Bromwich JJ (“Carrascalao”), affirming Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140 at [47]-[54] per Lindgren, Rares and Foster JJ, though when doing so the Court must bear in mind that:
a)the obligation is not to do so overzealously: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; and
b)it is the applicant who bears the onus of proof to establish jurisdictional error: Carrascalao at [47] per Griffiths, White and Bromwich JJ.
With respect to the applicant’s claims of a fear of harm as a Tamil, and as a Tamil from a former LTTE controlled area, the IAA made the following findings at CB 181 at [8]:
8. I consider it plausible that as a Tamil living in northern Sri Lanka during the period of the civil war that the applicant would have spent some time living in a refugee camp as claimed and that he could have witnessed deaths and disappearances... I accept that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils, and reports from the International Truth & Justice Project are amongst those that detail claimed abuses. I have also regard to the current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka which provides guidance on the profiles of people at risk of harm and likely to be in need of protection in assessing the applicant's claims. The DFAT and UNHCR reports demonstrate that Tamils from the former LTTE areas are at low risk of being questioned or detained by the authorities simply for being Tamil. According to the current UNHCR guidelines, being of Tamil ethnicity alone does not give rise to protection needs… The applicant did not have any links with the LTTE and was not involved in any other activities during the civil war that the country information indicates would cause him to be of concern to the authorities now. I am not satisfied that there is a real chance of serious harm arising for the applicant due to his experiences during the civil war.
The IAA accepted the applicant had been exposed to experiences that could give rise to a subjective fear of harm, however, when considering this and weighing the country information, the IAA was satisfied the applicant, based on his own evidence of having no involvement in activities during the civil war, did not face a “real chance of serious harm” under the criteria in s.5J of the Migration Act. The IAA dealt with the applicant’s fear of harm on the basis of imputed membership of the LTTE as follows:
9. The applicant explained in greater detail the events relating to the quest ioning and assault from soldiers he experienced in 2008… The applicant stated that he believed the incident left a “red mark” on him. I accept that it is plausible the applicant could have been questioned and assaulted by soldiers if he was out during curfew in 2008. However, I do not accept that this would lead to a profile that would attract adverse attention if the applicant were to return to Sri Lanka now. There is no indication that the military had any interest in the applicant after this event. He was questioned, possibly assaulted as claimed, and then released and told not to go out at night again. The applicant stated that this problem was then “over.” Had the military had any serious concerns that the applicant was involved with the LTTE I consider it likely he would have been subjected to greater scrutiny at the time. Accordingly, I do not accept that this incident resulted in any ongoing interest in the applicant by the Sri Lankan, or that it gives rise to a real chance of harm on return to Sri Lanka…
20. In applicant's case I am satisfied he has no connection to the LTTE or criminal history and I am further satisfied that he does not have an adverse profile with the relevant authorities. The applicant has stated that he fears he has a “red mark” because of past dealings with various authorities and fears that he has a raised profile due to the cumulative effect of past interaction. However, having found that he has no such profile, I find that the applicant would not be subjected to any mistreatment on arrival back in Sri Lanka that would extend beyond routine processing or which would amount to serious harm…
22. I note that DFAT has reported some accounts of mistreatment of returnees, however the indications are that those targeted for mistreatment are persons with a profile that suggests connections with the LTTE. I have found that the applicant does not have such a profile, nor is he of adverse interest to the Sri Lankan authorities The country information in the referred material advises that returnees, including Tamils, who have sought protection while overseas are not at risk of harm on that basis alone and are not specifically targeted for adverse attention, unless they are suspected of having links with the LTTE. For the reasons I have outlined in this decision I find that the applicant does not have actual or perceived links to the LTTE and would not be of concern to the authorities on return to Sri Lanka. Accordingly, I am not satisfied he faces a real chance of harm…
CB 181 at [9], 183 at [20] and 184 at [22].
The IAA actively engaged in an intellectual process in relation to the applicant’s claims of fearing persecution as a result of his Tamil ethnicity, his residing in a former LTTE controlled area and the possibility of his being imputed with an LTTE affiliation: Carrascalao at [45]-[46] per Griffiths, White and Bromwich JJ. The IAA made findings specific to these claims, including that being a Tamil was not of itself a reason to be afforded protection status, that the applicant did not have a profile consistent with having engaged in activities during the LTTE conflict, did not have links with the LTTE and had not engaged in criminal activities, all of which when considered in conjunction with country information indicated that the applicant would not be of adverse interest or concern to authorities, and that the applicant does not have actual or perceived links to the LTTE. The IAA referred to the 2008 Incident as one where the alleged mistreatment suffered by the applicant was likely as a result of his breaking a curfew, and that the applicant himself stated the problem with the military was “over”, and such that had he been imputed with a pro-LTTE opinion or been mistreated for reason of this imputed belief, he would likely have been subjected to greater scrutiny and interest from the authorities, as opposed to their interest simply being “over” after the 2008 Incident: CB 181 at [9].
The applicant also alleges the IAA failed to consider his claim of fearing harm on the basis of being the leader or head of his village. Where a claim is not expressly made or does not clearly arise on the materials before it, the IAA is not required to consider it NABE (No 2) at [61] per Black CJ, French and Selway JJ. The applicant never claimed to be the leader of his community or the head of his village, rather he stated:
From approximately 2008 to 2010 I held the position as the head of a sports club in my village,
and with respect to this role he raised the claim regarding the Grease Yakas, and the threats from CID officers, stating at CB 66:
As a person in a position of responsibility, I wanted to do something to protect the villagers, so I organised the members of the sports club into a group to protect the women and village. We kept watch at night in the village. One day, I received a phone call from a Tamil speaking person threatening that my actions in arranging our nightwatch group was going to cause harm to be inflicted on me. After this threat on the phone I stopped our meetings. The person did not identify himself but, I suspected that he may be a CID officer because this was the type of threat that such officers made.
The applicant claimed to fear harm as a result of his engagement in the “night watch”, and made specific reference to the CID and the Grease Yakas, and in relation to that claim the IAA found, at CB 181-182 at [10]-[11] (footnotes omitted), as follows:
10. The applicant claims to fear reprisals from the CID on the basis of a threatening telephone call received in 2010 relating to him organising night watches to protect villagers from criminal elements. The applicant claims criminal elements, which he referred to as Grease Devils, were harassing villagers and he organised members of his sporting club as protection from their activities. DFAT has noted the existence of Grease Yakas, who are described as men who smeared grease on their faces to frighten women in rural villages. However, the DFAT report indicates that this activity was conducted from early 2011 to September 2011. In the applicant's case he claims this occurred in 2010. The applicant provided two documents with his application that he states support his claims regarding these incidents. One of these documents is a letter from the Parish Priest at St Sebastian's Cathedral dated 21 November 2012 which states that the applicant was involved with providing security for the villagers from the Grease Devils "last year". The second letter is not dated, but similarly refers to the sports club security activity "last year". The delegate put to the applicant at the protection visa interview that these letters indicated this activity happened in 2011, not 2010 as stated by the applicant. The applicant explained that the issue of the dates may be due to confusion on the part of the authors of the letters. The applicant explained that the events occurred toward the end of 2010 and that may account for the reference to "last year". While I accept that the applicant's explanation may account for the discrepancies in dates between the time he claims the events occurred and the dates referred to in the support letters, I take note that he contends the events with the Grease Devils took place in 2010, which is in conflict with independent country information which dates the Grease Yaka activity from early 2011. The fact that the applicant contends this activity took place before the independent reports of it occurring casts significant doubt on the applicant's claims. However, even if I were to accept that the applicant banded together a group of sports club members to counter the Grease Devils as claimed, I find that this does not give rise to well−founded fear of serious harm from the CID for the reasons discussed below.
11. The applicant's stated fear arising out of this event is ongoing interest in him by the CID. The applicant's basis for this fear is his belief that the subsequent threatening telephone call he received was from a CID officer. When questioned by the delegate as to why he believes the threat was from the CID the applicant stated that threats like this are normally made by the CID. The applicant did not provide any further information to support his assertion that the caller was from the CID. The DFAT report notes there were allegations the Grease Yakas had an association with the army, but that these allegations have not been substantiated. The applicant's claim that the threatening telephone call was made by a CID officer is speculative. While I am willing to accept that the applicant may have received a threatening telephone call in 2010, I do not accept that the call was from the CID. The independent country information does not indicate there were any links between the Grease Yakas and the CID. The people most affected by the night watches would have been the Grease Yakas and it is therefore likely that any threats to desist from the night watches would have come from the Grease Yakas. Although I have found that the applicant received a threatening call from the Grease Yakas, The evidence is that the Grease Yaka activity was limited to a period of time in 2011 and is not ongoing. As the Grease Yakas are no longer active I find that there is not a real chance the applicant would face any harm from these Grease Yakas, or others associated with them on return to Sri Lanka. Nor am I satisfied, for the reasons given above that the applicant faces a real chance of harm from the CID in connection with these claimed events.
Had the Court accepted the applicant made the claim of fearing harm on the basis of his being a village or community leader, it can be said that the IAA’s findings regarding the source of the threatening call make it unnecessary to address the alleged claim of fear of harm as a “leader” because the factual premise upon which the contention rests, that being that the call was made from the CID, was rejected: CB 182 at [11]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ. The applicant claimed to fear harm from the CID and the Grease Yakas, but the IAA, while accepting a threatening phone call was made, found that it was not made by the CID, but by the Grease Yakas, and ultimately found as the Grease Yakas no longer appeared to have a presence or engage in activity in the region, it was not satisfied that the chance of harm as a result of this incident was continuing or present.
Ground 2 fails because the applicant did not make the claim asserted in Ground 2, or if he did it fails in any event because the factual basis for the alleged well-founded fear of persecution either never existed (in the case of the CID) or no longer exists (in the case of the Grease Yakas).
In the above circumstances, no jurisdictional error is established by ground 2.
Further matter raised in oral submissions
At hearing the applicant raised a further matter which appears to be in the nature of a failure to have regard to a relevant consideration or ignoring relevant material. In essence, the applicant asserted that a written statement provided to the Department referred to an incident occurring in 2011 whereas it occurred in 2010, and that the applicant explained this to the Department, but the Department did not take it into consideration: Transcript at pages 2-3. In this respect, the applicant claimed that there was “miscommunication” between him and the Department: Transcript at page 3. It is plain enough that the applicant’s reference to the Department is in fact a reference to the Delegate.
The Minister referred to a letter at CB 97 the date of which is recorded as 21 November 2012, and which is from the parish priest of the applicant’s local cathedral (“Parish Priest’s Letter”). The Parish Priest’s Letter refers to the applicant having been president of the sports club in the village and having been involved along with friends in providing security for the village against the Grease Yakas. That letter dated 21 November 2012 refers to that involvement being “Last year”: CB 97. The Minister points to the IAA Decision at CB 181-182 at [10]-[11] (reproduced at [31] above), and says that the IAA took into account, specifically, the Parish Priest’s Letter, and the applicant’s explanations as to when the sports club security activity occurred and says that the relevant evidence was in fact considered by the IAA.
The further matter raised by the applicant does not establish jurisdictional error in the IAA Decision. It is plain that the IAA in making the IAA Decision had regard to the Parish Priest’s Letter, dated 21 November 2012, and referred to the fact that the security provided by those at the sports club was said to have occurred in 2011 if the Parish Priest’s Letter is read literally: CB 181-182 at [10]. The IAA notes that the Delegate put to the applicant the fact that the Parish Priest’s Letter (along with other letters) indicated the sports club security activity happened in 2011 and not 2010, and noted the applicant’s explanation that there may be confusion in relation to the dates on the part of the authors of the letters, and the applicant’s own evidence that the events occurred toward the end of 2010: CB 181-182 at [10]. The applicant’s assertion that these events took place in 2010 conflicted with country information that the Grease Yakas’ activity commenced in early 2011: CB 181-182 at [10]. The IAA relied upon that country information which caused it to have considerable doubt as to the applicant’s claims that the activity took place in 2010: CB 181-182 at [10]. On the evidence, that was a finding as to credibility, and otherwise as to fact, which was open to the IAA. The difficulty for the applicant, seemingly both before the Delegate and before the IAA, is that he insisted that the sports club security events occurred in 2010, a contention reiterated before this Court: Transcript at pages 2-3. In circumstances where the accepted country information indicated that the relevant Grease Yakas’ activity did not commence until 2011 it was plainly open to the IAA to doubt the applicant’s claims in relation to the sports club security activity. In any event, the applicant faces a further difficulty, in that the IAA found that if it were to accept that the applicant did get together a group of sports club members to engage in the security activity referred to against the Grease Yakas, that it did not give rise to a well-founded fear of serious harm from the CID, which was said to be the source of the harm feared by the applicant in relation to the Grease Yakas’ sports club security activity, and, further, that the Grease Yakas’ activity had since ceased: CB 182 at [11].
In the above circumstances, the further matter raised by the applicant at hearing does not establish jurisdictional error in the IAA Decision.
Conclusion and Orders
The Court has concluded that the IAA Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 12 October 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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