CSD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1416

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1416

File number(s):	SYG 1904 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	24 June 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – whether the Authority misapplied the relevant law –  whether the Authority denied the applicant procedural fairness -  whether the Authority’s reasons lack an evident and intelligible justification – whether the Authority had a  genuine intellectual engagement with the whole of the evidence – no jurisdictional error found – further amended application is dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5AAA, 36(2)(aa), 36(2)(a) , 46A(1), 46A(2), 473CB, 473DC, 473DC(1), 473GB, 473GB(1), 473GB(3), 473DD(a), 473DD , 473DE, 473DE(3)(a), 476.
Number of paragraphs:	43
Date of hearing:	24 June 2021
Place:	Sydney
Solicitors for the Applicant:	In person
Solicitors for the First Respondent:	Mr E Taylor, Mills Oakley

ORDERS

SYG 1904 of 2017

BETWEEN:

CSD17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS THAT:

1.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.

2.The further amended application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $6,800.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Immigration Assessment Authority (“the Authority”) made on 18 May 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Safe Haven Enterprise visa (“the Visa”). 

2. The applicant is a citizen of Sri Lanka and his claims were assessed against that country.  The applicant was found to be a Tamil Hindu from a particular district in the Eastern Province.

   BACKGROUND AND APPLICANTS CLAIMS

3. The applicant arrived in Australia on 20 September 2012 as an unauthorised maritime arrival and participated in an arrival interview on 26 September 2012. In the entry interview on 8 January 2013, the applicant made brief claims to fear harm in Sri Lanka because he had been threatened by unknown government members because he was assisting the opposition party.

4. On 14 August 2013, the applicant lodged an invalid application for a Protection Visa and a statutory declaration, in which the applicant claimed that:

   a.due to the Sri Lankan civil war, one of his relatives was shot dead by the Sri Lankan Army in 1987 and another relative was killed during a shooting when the Indian army came to Sri Lanka in 1990;

   b.in 1998, a relative was taken by the government on suspicion of being a member of the Liberation Tigers of Tamil Eelam (“LTTE”) ;

   c.he and his family supported the Tamil National Alliance (“TNI”) ;

   d.in 2007, the Karuna Group attempted to kidnap him and some friends while they were waiting at a bus stop. The applicant ran away but one of his friends was taken;

   e.        he became an officer of a club in his village and that, as part of his role, he contacted TNA and Sri Lanka Freedom Party politicians in relation to club funding;

   f.        in August 2012, two armed persons attended his home while he was out. They argued with the applicant’s father, accused the father of supporting the TNA and the LTTE, and threatened to kill the father and the applicant. The applicant’s father then arranged for the applicant to depart Sri Lanka.

5. On 12 October 2015, the applicant applied for a Safe Haven Enterprise Visa and in the accompanying statement dated 25 September 2015, the applicant made the following additional claims:

   a.   The Sri Lankan Army controlled the applicant’s village and frequently conducted “search and round up operations” whenever an incident related to the LTTE took place. On many occasions, the applicant was physically assaulted by the SLA. He was also detained and interrogated on at least three occasions.

   b.   In 2010 or 2011, the “Karuna and Pillian” group demanded that the applicant join them and severely assaulted him when he refused. The applicant’s parents paid the group money so that they would stop harassing him. The group subsequently extorted the applicant’s parents.

   c.   In 2011, the applicant’s family opposed a plan by the Sri Lankan government to build another SLA camp in the village. The applicant and his father protested against the camp and were well known to SLA members for doing so.

6. On 18 December 2015, the applicant attended a Safe Haven Enterprise Visa interview. On 20 October 2016, the delegate found the applicant failed to meet the criteria for the Visa.

   DECISION BY THE AUTHORITY

7. On 31 October 2016, the Authority wrote to the applicant explaining that the application for the Visa had been referred to the Authority for review and provided an attached Factsheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions. The applicant did not do so.

8. On 18 May 2017, the Authority in its decision referred to the background of the applicant and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority took into account updated country information and found that there were exceptional circumstances to justify considering this new information.

9. The Authority summarised the applicant’s claims and that the applicant had lived all his life in the same village and that his parents and siblings continue to reside in the family home. The applicant had a relative who was forcibly recruited by the LTTE and disappeared in 1998 and three other relatives killed in shootings in 1987 and 1988. The SLA controlled the applicant’s village and on 3 occasions he was detained and beaten and released on payment of a bribe. The applicant’s family were known as LTTE supporters and continue to be targeted by the authorities.

10. The applicant alleged that in 2007 people in a white van tried to kidnap him and some students and that he escaped. The applicant also alleged that in 2011 he was kidnapped and assaulted by members of the Karuna or Pillayan groups for not joining them and that he was released on payment of bribes that have continued. 

11. The applicant claimed that he assisted the TNA in the 2012 election campaign and that men threatened his father and told him they will kill the applicant. After the applicant left Sri Lanka, he claimed that on 13 December 2013, armed men came to his family home looking for the applicant and assaulted his father and threatened the family.

12. The Authority identified the relevant law including in an attachment of applicable law incorporated in the reasons.

13. The Authority found the applicant’s new claims to contain internal inconsistencies and to be implausible. The Authority accepted that the applicant may have been subject to non-targeted round ups on a number of occasions, however the applicant was not charged and was not subject to reporting requirements or motoring. The Authority took into account that the family home had not been searched and that none of the applicant’s relatives have been questioned or harassed in relation to the applicant or other family member’s LTTE profile. The Authority did not accept that the applicant was identified, detained and tortured as he claimed and did not accept that the detention incident occurred.

14. The Authority also rejected the applicant’s claim about being kidnapped by the Karuna and Pillayan group due to inconsistencies and implausibility’s. The Authority did not accept the applicant’s claims as to a petition to oppose an SLA camp in 2011 which caused the applicant’s family to be targeted. The Authority found the applicant’s claims as to an adverse profile were not credible and was not satisfied that the applicant faces a real chance of serious harm from the alleged detention and torture be the SLA, alleged kidnapping by the Karuna/Pillayan groups or an adverse profile from an alleged petition.

15. The Authority was not satisfied that the applicant has been or will be imputed with any support for the LTTE because of his association with a relative who was forcibly recruited and disappeared in 1998. The Authority was not satisfied that the applicant’s family are known as LTTE supporters. The Authority was satisfied the applicant has not been and will not now be imputed with any support for the LTTE because of his alleged familial associations. The Authority found that the applicant does not face a real chance of serious harm by reason of being a Tamil from the Eastern Province.

16. The Authority accepted that the applicant and his father were threatened by unknown armed men in the context of the 2012 elections because of their involvements with the TNA and not because of involvement with the sporting club. The Authority accepted that a further visit to the family home occurred in 2013. The Authority took into account the applicant’s low profile, the time between events and lack of ongoing harassment or intimidation of the applicant’s relatives and the more settled political landscape. The Authority was not satisfied that the applicant continues to face a real chance of serious harm on the basis of his past political opinion or support for the TNA, should he re-join the sports club, continue with political activities or continue support for the TNA. The Authority was not satisfied the applicant’s low level profile and political activities has or will lead to any imputed support for the LTTE, pro -Tamil , anti-government or separatist activities.

17. The Authority found that the applicant’s attempted abduction in 2007 was random and opportunistic and was not individually targeted. The Authority found that the applicant does not face a real chance of serious harm arising from this incident.

18. The Authority took into account Department of Foreign Affairs and Trade (“DFAT”) country information and found that the applicant will not be imputed to be a political activist or to have connections with pro-Tamil/anti-government activities by reason of being a young Tamil male or Tamil male from the East.  The Authority found the applicant does not have a profile as a result of any real or imputed support for, membership of, or, association with the LTTE including familial associations or arising from his support for the TNA. The Authority was satisfied the applicant does not face a chance of serious harm on the basis of being a Tamil, a young Tamil male, a Tamil form the East or a Hindu.

19. The Authority accepted that the applicant departed illegally and took into account the finding that the applicant does not have any adverse profile with the Sri Lankan authorities. The Authority found that there is not a real chance the applicant would be subjected to harm because he is a returning asylum seeker.

20. The Authority found the questioning and detention that the applicant may experience because of his illegal departure would be brief and would not constitute serious harm. Having considered the applicant’s claims cumulatively, the Authority found the applicant did not meet the definition of refugee and did not meet the criteria under s 36(2)(a) of the Act.

21. The Authority then turned to consider whether the applicant met the complementary protection criteria and took into account the findings made and did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, that there is a real risk that he will suffer significant harm. The Authority found that the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

    BEFORE THE COURT:

22. These proceedings were commenced on 20 June 2017. 

23. On 21 September 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.  The applicant, at that stage represented, filed an amended application and then, on 15 November 2017, a further amended application.  The original solicitors for the applicant appear to have withdrawn from the proceedings in 2019 and a new solicitor came on the record in 2019. 

24. The matter appears to have remained in the National Migration docket until transferred to this Court in May 2021.

25. On 12 May 2021, a Registrar of the Court made orders fixing the matter for hearing today. 

26. The applicant’s representatives withdrew from the proceedings.  At the commencement of the hearing today, the Court explained to the applicant the nature of the hearing.  The applicant confirmed he understood the explanation given by the Court.  The applicant referred to the situation in Sri Lanka and recent country information in respect of a particular Minister. 

27. The Court is not in a position to receive fresh evidence in respect of the applicant’s claims.  The recent events involving a Minister are not capable of identifying any jurisdictional error by the Authority. 

28. The applicant made reference to seeking to obtain further information that he wished to put before the Authority if the matter was remitted to the Authority.  The applicant also made reference to the difficulty in obtaining information in support of his claims and that the Authority had accepted some of his claims. The Court is not able to revisit the merits and the desire to put on further information if remitted does not identify any error by the Authority in the conduct of the review.

29. Pursuant to s 5AAA of the Act, it is for the applicant to provide sufficient evidence to establish his claims.  The applicant made reference to the situation currently and maintained that the decision was accordingly unlawful. For the reasons already given, the situation currently was not before the Authority and cannot make out any relevant error in the conduct of the review.

30. The assertion that the the decision was unlawful was not supported by any identifiable basis and in substance reflects a disagreement with the decision. It does not make out any relevant error.

31. The Court has considered whether there is any apparent jurisdictional error in the conduct of the review or in the reasons of the Authority. On the face of the Authority’s reasons, the Authority made dispositive findings that were open to them in respect of the applicant’s claims.  The adverse findings by the Authority cannot be said to lack an evident and intelligible justification for the reasons given above.  The Authority’s reasons as referred to above, reflect a genuine intellectual engagement with the whole of the applicant’s claims and evidence. 

32. The Authority correctly identified the relevant law and there is no basis, on the face of the Authority’s reasons, to find that the Authority misapplied the relevant law or misconstrued the relevant law.  The applicant’s submission that the decision is unlawful, in substance, invites impermissible merits review. 

33. The applicant maintained that he could not return to Sri Lanka and that his life would be in danger.  Contrary to the applicant’s submissions in this regard, the Authority found the applicant did not face a real chance or real risk of significant harm or serious harm if returned to Sri Lanka.  Nothing said by the applicant identified any jurisdictional error. 

    THE GROUNDS

34. The two grounds in the further amended application are as follows:

    Ground 1

    The Tribunal fell into jurisdictional error in failing to find that a purported s 473B certificate was invalid and that the consequent failure to put the material purportedly covered by the certificate to the applicant for comment constituted a denial of procedural fairness.

    Particulars

    The certification in the purported s473GB certificate did not relate to a matter permitted under s473GB(1) of the Act, with the result that it was invalid. The non-disclosure of material before the Tribunal constituted a denial of procedural fairness.

    Ground 2

    The Tribunal fell into jurisdictional error in finding there were exceptional circumstances to justify considering the DFAT report of 24 January 2017.

    Particulars

    Section 473DD of the Act only applies to new information that is provide by the referred applicant; and

    s473DD does not permit the IAA to consider new information in exceptional circumstances that is not provided by the referred applicant.

    GROUND 1

35. Ground 1 alleges a denial of procedural fairness by failing to exercise powers under s 473DC of the Act, by inviting the applicant to comment on the certificate dated 27 October 2016 and the information the subject of the certificate.

36. The information, the subject of the certificate, was an identity assessment form and included the applicant’s name in its title. The certificate recorded that information in the documents should not be disclosed to the applicant or his representative because its disclosure would be “contrary to the public interest because it would disclose information about the workings of the Department.”

37. The Authority did not disclose to the applicant the certificate or the information the subject of the certificate. The Authority did not provide reasons for not excising powers under s 473DC or in relation to s 473GB(3) of the Act.

38. Given the provisions of Part 7AA of the Act, there was no common law obligation to invite the applicant to comment of the certificate or the information the subject of the certificate. Nor does the Authority have to provide reasons for not exercising procedural powers unless the circumstances are such that legal unreasonableness requires an evident and intelligible justification.

39. The information, the subject of the certificate, was not material to the review as there was no issue concerning identification and accordingly the applicant suffered no practical injustice by reason of the existence of the certificate or the information the subject of the certificate. Accordingly no jurisdictional error is made out by ground 1.

    GROUND 2

40. Ground 2 asserts error by the Authority’s finding that there were exceptional circumstances to justify considering an updated country information report by DFAT dated 24 January 2017 because it is alleged that s 473DD of the Act permitted the Authority only to consider information provided by the applicant. This proposition that s 473DD of the Act is confined to information provided by the applicant is wrong.

41. This ground misconceives the operation of Part 7AA of the Act. The Authority was empowered by s 473DC(1) of the Act to get information that was not before the delegate at the time of the delegate’s decision and that it considered may be relevant. Such information constituted “new information”. This is a term that must be read consistently throughout s 473DC, s 473DD, and s 473DE of the Act. The meaning of new information is not confined to new information from the applicant or referred applicant. It is only the second limb in para (b) of s 473DD of the Act that is confined to new information provided by the applicant. This confinement does not limit the Authority from considering new information obtained by the Authority that the Authority finds meets the requirements of para (a) of s 473DD of the Act. That is what occurred in the present case. Further, the new information was updated country information which the Authority may obtain without the steps that otherwise apply in respect of adverse information pursuant to s 473DE(3)(a) of the Act.

1. In the present case, the Authority found that there were exceptional circumstances to justify considering the new information, being the updated country information and it was open to the Authority to do so. There was no misconstruction or misapplication of the statutory provision.  Accordingly, no jurisdictional error is made out by Ground 2.

2. No jurisdictional error is found. Accordingly, the further amended application is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 24 June 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       22 September 2021