CRJ16 v Minister for Immigration
[2017] FCCA 727
•10 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRJ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 727 |
| Catchwords: MIGRATION – Immigration Assessment Authority – no jurisdictional error – application dismissed – costs. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DB |
| Applicant: | CRJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 777 of 2016 |
| Judgment of: | Judge Vasta |
| Hearing date: | 10 April 2017 |
| Date of Last Submission: | 10 April 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 10 April 2017 |
REPRESENTATION
The Applicant appearing on his own behalf with the assistance of an interpreter
| Counsel for the Respondent: | Mr Kaplan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application filed 23 August 2016 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to today fixed in the sum of $7,206.00 (inclusive of GST).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 777 of 2016
| CRJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
By application filed in this Court on 23 August 2016, the Applicant, CRJ16, seeks a judicial review of a decision of the Immigration Assessment Authority (“the IAA”) that affirmed an earlier decision by the delegate of the Minister to not grant a protection visa to the Applicant.
The background to this matter is that the Applicant is a national of Sri Lanka. He arrived as an unauthorised maritime arrival on 20 September 2012. He was interviewed on 1 October 2012 after his arrival, and in that interview he claimed to fear persecution in his country of birth on the basis that he was a male Tamil.
He was interviewed again on 8 January 2013, and in that interview he made the same claims for protection. In a letter dated 1 September 2015, the Applicant was told that the Minister had exercised his power to allow the Applicant to make a valid application for a visa which would be a safe-haven enterprise visa.
The Applicant made such an application on 28 September 2015 and included, in that application, was a lengthy statement dated 23 September 2015 in which he set out his claims for protection. On 18 December 2015, he had a further interview with the delegate, and on 7 June 2016, the delegate made a decision to refuse the visa to the Applicant.
The Applicant then undertook a fast-track reviewable decision through the processes of the IAA, and the IAA then made a decision that affirmed the decision of the delegate. That decision by the IAA is fairly extensive.
The reviewer has looked at all of the matters that the Applicant claimed. They were summarised in paragraph 4 of the decision.
“4. The applicant’s claims are contained in the information referred to the IAA. They can be summarised as follows:
· He was a Tamil from the island of Karainagar, Northern Province, Sri Lanka. He was born on 15 March 1989.
· His father fled to Sri Lanka in 1989 because of the imputation that he was in the LTTE and he currently resides in Holland as a refugee. His family was displaced several times due to the civil war but returned to Karainagar after the ceasefire in late 2002.
· During the family’s displacement in Vaddakacchi (Kilinochchi),between 1996 and 2002, he and his elder brothers worked at LTTE camps but were released after their mother paid some money to the LTTE.
· His two elder brothers went to Qatar in 2005 and 2007 to escape the imputations that they were involved in the LTTE and to avoid harassment and military tension in their area.
· From 2012 he worked as a driver taking passengers between Karainagar and Jaffna and would be regularly stopped at navy checkpoints. In August 2012 he was stopped at a checkpoint and Naval officers asked that he bring cigarettes, alcohol and Tamil women to their camp and threatened him if he did not comply. He did not comply with the request to bring Tamil women to them.
· On 9 August 2012 he was beaten by an officer after not stopping at a navel check post. He was then fined for driving whilst using a mobile phone which he denies and claims that this was done to scare and intimidate him.
· On 10 December 2012 and 12 March 2013 men from the EPDP came to his home looking for him.
· His mother made a complaint to the Sri Lanka Human Rights Commission about the fine and because the EPDP were looking for him.
· He will be investigated on return to Sri Lanka because he departed illegally and, as a consequence, the authorities will become aware of his family’s links to the LTTE and the outstanding charge against him which will mean he will face a real chance of serious harm from the Sri Lankan authorities at the airport or on return to his home area.
The IAA thoroughly looked into all of the claims that the Applicant had made, going first through the claim of harassment by Sri Lankan authorities, then looking at this incident that occurred in August 2012 and the subsequent fine. Then the IAA looked at the family links to the LTTE and finally looked at the circumstances concerning the Applicant’s illegal departure and what may happen if he is returned as a failed asylum-seeker.
The Tribunal assessed the claim of the Applicant against the country information and then assessed his claim in relation to the convention criteria as well as in relation to the complementary protection criteria.
In the end the IAA was not satisfied that there were substantial grounds for believing that he met either of those criteria and therefore affirmed the decision not to grant the protection visa.
The Applicant then lodged the present application. The grounds of the application were extremely general and they are as follows:
“1. The Tribunal erred in law by making the decision based upon irrelevant information.
2. The Tribunal erred in law by making a decision not taking into relevant information.
3. The Tribunal failed to apply the Complementary provisions correctly.”
Of course, it is trite to say that such grounds are not particularised and really give little assistance to anyone who is reviewing the decision as to what it is that the Applicant actually complains of.
The Applicant was represented by a Mr Barataraj, who is a barrister who often appears in these Courts dealing with migration matters. Mr Bartaraj and the solicitors for the Minister approached my Chambers on 16 November 2016, with consent orders in relation to the conduct of this matter. I made those orders in Chambers, and the hearing was set down for 10 o’clock today, 10 April 2017.
It appears the next occurrence on the file happened in late March, when the Applicant filed a notice for address of service and filed an affidavit explaining that Mr Bartaraj would not be taking on his case anymore and that he wanted an interpreter and wanted an adjournment.
The Applicant turned up today wanting the services of the interpreter, and because the Court had not arranged one, one was arranged by telephone on short notice and has been an invaluable assistance to the Court.
The Applicant sought an adjournment on the basis that he wanted to find a barrister who would do the matter for free, and he requested an adjournment of six months. I refused the adjournment.
The matter had been set down for nearly 5 months. There was nothing that the Applicant had done to further the matter. Submissions had not been filed by him or any amendment to the originating application which could have particularised those grounds of review. In all of the circumstances, I was of the view that this was a matter that needed to be dealt with and dealt with now.
The Applicant was asked what he wanted to say to me about this matter. He said to me that he knew that a letter that he had given was not looked at by the IAA. That submission would seem to relate to ground number 2. He also said that he cannot get evidence of the harm that he suffered in Sri Lanka and that he found it difficult to put into words everything that he had suffered through his life so as to make meaningful submissions to me.
As I explained to him at the beginning of this matter, those sorts of concerns, while obviously quite important to him, can play no role in my decision here as to whether or not there has been a jurisdictional error committed by the IAA. Such submissions are meant to be emotive and to tug on the heartstrings of judges and to seek to emotionally influence what needs to be a very detached examination of the conduct of the IAA.
So as regards to those matters, I cannot see that there is any merit in grounds 1 and 3. I accordingly reject those grounds.
With regard to the Applicant’s contention that he had given a letter to the IAA which was not considered, there is some merit in what it is that the Applicant has said. Very helpfully Mr Kaplan, who appears for the Minister, has detailed what had occurred.
The Applicant had a letter dated 10 February 2014 from a psychologist that detailed, amongst other things, that the Applicant suffers from anxiety and depression and suffers from symptoms which include inability to concentrate. That letter was given to the delegate.
Pursuant to s.473CB of the Migration Act 1958 (Cth) (“the Act”), which deals with the IAA, there must be material provided to the IAA. Section 473CB relevantly states:
“(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
The letter from the psychologist was not given to the IAA at the same time as all of the other material that is referred to under s.473CB. It seems that the Secretary had to ask the representatives of the Applicant for another copy of that letter.
On the material before me it shows that the letter was given to the Secretary. The Secretary was then able to upload that to the IT platform used by the IAA, which made then that letter accessible to the IAA.
What is clear is that the letter became accessible on the platform at 9.28 am on 29 July 2016. At 10.10 am the reviewer gave the decision. It was at 10.19 am that an email was sent to that reviewer, within the IAA platform, that contained a copy of that letter. It follows then that the actual letter was not seen by the reviewer until nine minutes after the reviewer had made their decision.
Therefore the first question is whether there has been compliance with s.473CB. That is, had material, provided by the Applicant, been provided to the IAA before the decision was made?
As the Applicant had provided the letter to the delegate, that letter needed to be given to the IAA. The question is whether the “IAA” in s.473CB means in effect “the corporate entity that is the IAA” and not the individual who makes the decision. Or does the “IAA” mean the actual reviewer or decision-maker?
It seems to me that as a matter of statutory interpretation and proper construction of the section, the “IAA” in s.473CB must refer to the corporate entity that is the IAA. Otherwise it would not make sense. When I say “the corporate entity” there is, in the provisions in setting this authority up, a provision that allows for persons from the Administrative Appeals Tribunal to assist the IAA in their statutory functions. Therefore I am of the view that having uploaded the letter at 9.28 am on 26 July 2016, that s.473CB was complied with and that material was provided to the IAA.
The next question is then “Was that material considered?”. That involves an interpretation of s.473DB, which says:
“(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…”
The question is “Has the material been considered by the IAA when the actual letter has not been seen by the reviewer?”. It is instructive then to look at the other material that was actually before the IAA. More particularly the findings are made by the delegate, which is contained in the material that was provided pursuant to s.473CB(1)(a).
In that material the delegate had said this at paragraph 39:-
“39. I have had regard to all dealings between the applicant and the department, including biodata interview, entry interview and information relating to his application for protection. During the interview the applicant was asked about his circumstances and events prior to leaving Sri Lanka and since, and why he fears returning to Sri Lanka. The applicant’s responses were willingly given in most instances and he provided detail about his history, home and family in what appeared to be a spontaneous and genuine manner. The applicant provided a letter dated 10 February 2014, which states he is suffering from anxiety and depression. The letter states the applicant suffers from symptoms which include inability to concentrate. The information provided in this letter was acknowledged and considered in assessing the application. On some matters of importance however, the applicant was not able to recall details such as day, date or time of events or who was there, and this did raise questions about the veracity of some of the claims made.”
That paragraph being part of the material considered by the IAA does demonstrate to my mind that the content of the letter was therefore considered by the IAA. There were other matters in that letter that went to the question of other persecutions that the Applicant was facing in Sri Lanka and therefore did not have much to do with the psychologist’s letter at all, but those claims were repeated in other parts of the material.
This letter was not germane to the issues being considered. The IAA did not make any findings that would have been different if the actual letter, rather than the summary of the letter in the reasons of the delegate, been before it.
It is my view therefore, that pursuant to section 473DB, the IAA had considered the review material, notwithstanding that it did not have the actual letter before it.
This is because the pertinent parts of that letter and the cogent parts that would have affected an assessment of the Applicant were already before the IAA in the form of the reasons given by the delegate of the Minister.
Whilst there may be an argument that all of the material, pursuant to s.473CB, must be present before the IAA can consider the review material, such an interpretation would lead to an absurdity. This is illustrated by the fact that under s.473CB the material that has to be disclosed includes the last address for service. If the last address for service was not before the reviewer, one could not say that that would in any way invalidate the review given by the IAA.
Therefore I am of the view that the IAA has considered all relevant material and has complied with s.473DB. That having occurred, there can be no finding of a jurisdictional error.
As there is no jurisdictional error, this application must be dismissed. The Minister should have his costs in the sum of $7,206.00.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 19 April 2017
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