CSW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1474

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1474

File number:

ADG 245 of 2017

Judgment of:

JUDGE CAMERON

Date of judgment:

25 May 2021

Catchwords:

MIGRATION – persecution – review of Immigration Assessment Authority (“IAA”) decision – Visa – Protection Visa – refusal

ADMINISTRATIVE LAW – allegation that the IAA’s decision affected by jurisdictional error by reason that – no matter of principle

Legislation:

Migration Act 1958 (Cth) ss 5, 5H, 5J, 36, 473BB, 473DB, 473DC, 473DD, 474

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007

Number of paragraphs:

24

Date of hearing:

25 May 2021

Place:

Adelaide

Counsel for the Applicant:

The applicant appeared in person

Counsel for the Respondents:

Mr J. Kay Hoyle

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

ADG 245 of 2017

IN THE MATTER OF CSW17 V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

BETWEEN:

CSW17

Applicant

AND:

MINISTER FOR IMMIGRATOIN, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	25 MAY 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $7,250.

3.The name of the first respondent in the Court record be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

REASONS FOR JUDGMENT

Judge Cameron

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived by boat to Australia in 2012, and it can be inferred he did not have a visa permitting him to enter and stay in Australia.  In November 2015 he lodged an application for a Safe Haven Enterprise Visa (“SHEV”) with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity and the imputation to him of an association with the Liberation Tigers of Tamil Eelam (“LTTE”).  On 4 November 2016 a delegate (“Delegate”) of the first respondent (“Minister”) refused the applicant's application for a visa and referred his matter to the second respondent for review.  The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA's decision. 

2. In this judicial review proceeding the Court's task is to determine whether the IAA's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed. 

   FAST TRACK REVIEW LEGISLATIVE FRAMEWORK

4. On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. 

   Definitions

5. Section 5(1) of the Act relevantly defines a “fast-track applicant” as a person:

   (i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)who has made a valid application for a protection visa in accordance with the determination; 

6. The applicant is a fast track applicant. 

7. Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast-track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast-track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast-track review process, but it has not been suggested that the applicant is such an applicant.

   Fast Track Process and Procedures

8. Part 7AA of the Act sets out the fast track review process and procedures.

9. Section 473CA is found in part 7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast-track review applicant to apply to the IAA for a review.

10. Division 3 of Part 7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken as an exhaustive statement of the natural justice hearing rule in relation to IAA reviews. Division 3 relevantly provides:

    473BB Definitions

    In this Part

    …

    new information has the meaning given by subsection 473DC(1).

    …

    473DB Immigration Assessment Authority to review decisions on the papers

    (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.

    …

    473DC Getting new information

    (1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

    (a)were not before the Minister when the Minister made the decision under section 65; and

    (b)the Authority considers may be relevant.

    (2)The Immigration Assessment Authority does not have a 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.

    …

    473DD Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i)     was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii)     is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

    STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA

11. Since 18 April 2015 the criteria for the grant of a protection visa have been found in s.36 of the Act, supported by the definitions of “refugee” and a “well-founded fear of persecution” set out in ss.5H and 5J of the Act respectively.

    BACKGROUND FACTS

    Protection visa claims

12. In its decision, the IAA summarised the facts alleged in support of the applicant's SHEV application.  As summarised by the IAA, the applicant relevantly made the following claims in that visa application: 

    (a)he is a Tamil from the Northern Province of Sri Lanka;

    (b)he and his family fled to India in 1990 when he was a child and lived in a refugee camp for two years before returning to Sri Lanka;

    (c)his maternal grandfather was a supporter of the LTTE and supplied them with goods.  He was abducted and killed in 2000; 

    (d)one of his close friends and that friend's brother-in-law were members of the LTTE.  In November 2008 the friend's brother-in-law was abducted, shot and killed.  Two weeks later his close friend escaped to India with his family. 

    (e)he was suspected by Sri Lankan intelligence officers of being a member of the LTTE because of his association with his friend.  One month after his friend fled to India five officers from the Sri Lankan army intelligence came to his home and took him to a military camp for interrogation.  He was asked about his friend's whereabouts, slapped across the face several times, and interrogated for more than five hours without access to food or water.  His family informed the local Roman Catholic bishop about his detention and the bishop secured his release; 

    (f)he was required to report to camp authorities every Wednesday for over an hour each time for six months.  Each time he reported, he was verbally abused and made to buy the officers alcohol and cigarettes with his own money; 

    (g)around 2009 he was told by a CID camp leader and another army person that if he paid them about 100,000 rupees they would withdraw his case.  This was roughly one year's worth of his income, and after paying it he had no problems for about 10 months; 

    (h)in April 2010 the camp leader was replaced and the new camp leader went to the applicant's shop in his home.  The applicant was out working so the camp leader abused the applicant's wife and told her that the applicant had to contact him.  The applicant went to the camp leader later that day and was interrogated for over an hour and told to buy alcohol and cigarettes and to report to the camp leader every week;

    (i)in November 2011 he closed his shop because he could not cope with the harassment any longer; 

    (j)in 2012 the camp leader asked the applicant for 300,000 rupees to stop reporting and threatened him with imprisonment if he failed.  He did not have the money and knew payment would not end the harassment.  He could not bear the treatment anymore and made arrangements to leave Sri Lanka; 

    (k)he fears he will be imprisoned if he returns to Sri Lanka because:

    (i)he left at a time when he had to continue to report to the military camp;

    (ii)he is suspected of having links with the LTTE because of his close relationship with an LTTE member;

    (iii)he did not pay the camp leader the bribe; and

    (iv)he fled the area and the country; and

    (l)he fears the authorities so cannot receive help from them, and is unable to relocate because he is on a suspect list and his identifying card shows his address in Sri Lanka. 

    The IAA’s decision and reasons

13. After discussing the claims made by the applicant and the evidence before it, the IAA was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (2)(aa) of the Act. In its reasons, the IAA relevantly summarised the following facts in support of its decision:

    (a)the IAA accepted that the applicant was a Tamil born in the Northern Province of Sri Lanka and that he had travelled with his family to India in 1990.  The IAA also accepted that the applicant's maternal grandfather had supported the LTTE, had supplied it with goods and as a result had been abducted, shot and killed.  However, after assessing the evidence, including country information, the IAA was satisfied that the applicant would not face a real chance of harm in Sri Lanka because he is a young Tamil from the North; 

    (b)the IAA noted that the applicant had not claimed that he or any other members of his family had supported, assisted or joined the LTTE and that the claims regarding his interrogation relate to his close friendship with a person suspected of being an LTTE member and not his maternal grandfather.  In his SHEV interview the applicant clarified that he had had no difficulties with Sri Lankan authorities between 2000 and 2008; 

    (c)the IAA was satisfied that the applicant's grandfather's support of the LTTE and killing in 2000 did not, of itself, lead to the applicant facing a real chance of harm; 

    (d)the IAA accepted that the applicant had experienced detention, interrogation, physical harm and extortion, and accepted that detention and interrogation had occurred in 2008 and later in 2010.  However, the IAA noted that the applicant did not claim to have been arrested or detained for a long period of time or charged with any offence relating to the LTTE, terrorism or Tamil separatist activities, and this indicated to the IAA that the Sri Lankan authorities did not suspect the applicant of being a member or active supporter of the LTTE irrespective of his friendship with an LTTE member, his grandfather’s support of the LTTE and being a Tamil from the north of Sri Lanka; 

    (e)the IAA did not accept the applicant's claim that he left Sri Lanka at a time when he had to continue to report to the military camp or his claim that he was on a suspect list.  The IAA found that the applicant's requirement to report to the military camp was opportunistic harassment and extortion by a corrupt official and not an official reporting requirement because of suspected involvement with the LTTE; 

    (f)the IAA noted that on the applicant's evidence no one from the CID, the military or any other Sri Lankan authority had inquired about him since he had left Sri Lanka and it was satisfied that the applicant was not imputed by the Sri Lankan authorities with links to the LTTE; and

    (g)the IAA found that as a failed asylum seeker from Australia, the applicant would face charges for having left Sri Lanka illegally.  However, it was not satisfied that the applicant had a profile that would raise concern with Sri Lankan authorities upon his return and found that the applicant would probably be fined.  The IAA was satisfied that the relevant laws and penalties were of general application and not applied in a discriminatory manner. 

    PROCEEDINGS IN THIS COURT

14. In the application commencing this proceeding, the applicant alleged:

    The applicant was denied procedural fairness by the Immigration Assessment Authority to address part of the applicant’s claim and this failure to take into account for a relevant consideration. 

    CONSIDERATION

15. The allegation pleaded by the applicant is not particularised and, without some identification of the elements of the alleged denial of procedural fairness, lacks material substance.  As a general point, it should be observed that the claims that the applicant made and which were summarised earlier in these reasons were considered by the IAA. 

16. In his address to the Court, the applicant agreed that his allegation was to the effect that the IAA had failed to consider matters associated with his visa application but, when pressed, raised issues associated with the merits of his visa application rather than matters which might disclose jurisdictional error on the part of the IAA.  Perhaps of most significance is that the applicant did not at that point embrace certain submissions which had been made by the Minister in the discharge of his obligation as a model litigant. 

17. Although the applicant's claims to fear harm in Sri Lanka relate to his ethnicity, his home area and his association with others who were active supporters for the LTTE, written submissions supplied by his representatives to the IAA included references to the following matters: 

    (a)at para.35, that the applicant:

    "was reading a human rights degree at the University of Colombo at the time of his departure to Australia".

    (b)after para.35:

    "The applicant is perceived to belong to the social group the LTTE and is suspected of a crime, he has been arrested and detained and he has been persecuted by way of sexual abuse by the SLA.  His brother, who was arrested along side him has successfully sought asylum in Canada.  He is a [sic] seen as a traitor as he has sought asylum in Australia". 

    (c)at para.37:

    "The latest UNHCR guidelines specifically lists [sic] media personalities and ex-policemen as 'at risk profiles' (the applicant belongs to both groups) that have to be given careful consideration to, when assessing their asylum claims". 

18. Those matters were described in paragraphs 6, 7 and 8 of the IAA's decision as being new information for the purposes of the Act. In his written submissions the Minister pointed to those matters and the IAA's treatment of them as potentially evidencing jurisdictional error on the IAA's part.

19. I will return to those submissions in a moment, but at this point it is important to note, again, that the applicant did not embrace those matters as being ones which the IAA should have considered but failed to consider. 

20. In relation to the possibility that the rejection of those matters from the IAA's consideration, on the basis that they were new information which did not meet the tests under s.473DD of the Act, the primary question is whether failure to consider the information is demonstrative of error. Given the nature of the applicant's claims over time, there is no reason to think that the information in question related to the applicant and rather, based on the Minister's written submissions, reason to suspect that it concerned other visa applicants and had been included in the applicant's written submissions to the IAA by the negligence of his representative.

21. The question is whether the decision to exclude that information caused the Authority's decision to be affected by jurisdictional error. In that regard, the Minister accepted that the Authority had not applied section 473DD of the Act correctly, that is to say in the manner described and explained by the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007. However, a procedural error will not lead to jurisdictional error unless it was material to the decision on the review. There is no reason to be confident that the information in question related to the applicant and I am not persuaded that it did. That being so, its exclusion from consideration could have had no material effect on the outcome of the IAA's review and so did not cause the IAA's decision to be affected by jurisdictional error.

22. As a secondary issue, in the circumstances, the fact that the IAA did not pursue the anomalous facts under s.473DC of the Act, whether with the applicant or with other sources, could not be considered to have been unreasonable or material to the outcome of the review.

    CONCLUSION

23. For those reasons, I find that jurisdictional error on the part of the IAA has not been demonstrated. 

24. Consequently, the application will be dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate: 

Dated:  30 June 2021