CTG18 v Minister for Home Affairs

[2018] FCCA 3313

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTG18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3313

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether it was unreasonable for the Authority to decline to exercise its powers under s 473DC of the Act – whether there was a requirement for the Authority to expressly refer to s 473DD(a) of the Act – whether the Authority should have given the applicants the ‘benefit of the doubt’ – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 473DD, 476

First Applicant: CTG18

Second Applicant: CTJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1481 of 2018

Judgment of: Judge Street

Hearing date: 31 October 2018

Date of Last Submission: 31 October 2018

Delivered at: Sydney

Delivered on: 31 October 2018

REPRESENTATION

Counsel for the Applicants:	Mr G Foster
Direct basis

Solicitors for the Respondents: Mr J McGovern
Clayton Utz

ORDERS

1. Grant leave to the applicants to rely upon the amended application dated 19 October 2018 and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

3. The first and second applicants to pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 31 October 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1481 of 2018

CTG18

First Applicant

CTJ18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 14 May 2018 affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.

2. The applicants are husband and wife and were found to be citizens of Sri Lanka and their claims were assessed against that country. The applicants were found to be Hindu Tamils and arrived in Australia as unauthorised maritime arrivals on 3 November 2012. On 12 September 2017, the delegate found the applicants failed to meet the criteria for the grant of Safe Haven Enterprise visas.

3. The applicants claimed to fear harm on the basis of the first applicant’s actual or imputed links or affiliation with the Liberation Tigers of Tamil Eelam (“LTTE”), his past adverse encounters with the Sri Lanka Navy (“SLN”), including as a fisherman, the Indian and Sri Lankan Criminal Investigation Department (“CID”), and other members of the “white van” network.

4. The second applicant also claimed to fear harm as a result of beatings, threats and intimidation she experienced as a result of incidents involving the first applicant and his actual or imputed affiliations.

5. The Authority wrote to the applicants on 19 September 2017, informing the applicants that the application of the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicants an opportunity to provide new information and submissions. The applicants did put on new information and submissions dated 8 October 2017, which were expressly referred to in the Authority’s reasons. The Authority found insofar as the submissions take issue with the delegate’s decision and the evidence relied on before the delegate, it was not new information and had regard to the same.

6. The Authority in its reasons identified the background to the visa application and had regard to the material provided by the Secretary under s 473CB of the Act. The Authority identified a number of new claims about the first applicant and found the same to be new information and addressed the nature of that new information and referred to the submissions advanced in support of why the Authority should take into account the new information as meeting the criteria under s 473DD of the Act. Ultimately, the Authority was not satisfied the new information met the requirements of s 473DD(b) of the Act and was, accordingly, unable to consider the same.

7. The Authority turned to a request addressed in the submission advanced on behalf of the applicants, concerning inviting the applicants to attend an interview. The Authority referred to the fact that this is a fast track review under the Act and that the Authority is not obliged to invite an applicant to provide new information, whether in writing or at an interview, simply because a person requests it. The Authority referred to the new claims and the fact that that new information was the subject of the restriction found by the Authority under s 473DD of the Act. The Authority expressly referred to taking into account all the circumstances in respect of which the Authority referred to the opportunities given to the applicants to advance their claims and the answers given at the time of the interview. It was in those circumstances the Authority declined to exercise its power under s 473DC of the Act.

8. The Authority summarised the applicants’ claims from the viewpoint both of the first applicant husband and the second applicant wife. The Authority did not accept the first applicant was jailed for two years in India and spent a further one year period in a CID camp, or that he was identified to the Sri Lankan authorities through media articles about his arrest. The Authority did not consider it credible that the first applicant would be unable to state with some consistency both location and duration of his detention. The Authority found the evidence of the first applicant in his Safe Haven Enterprise visa interview about this claim to be vague, generalised and unconvincing. The Authority did not accept as plausible that the Chennai police would be able to find the first applicant in M given his illegal status and secondly, that the first applicant would be unable to state with some specificity what he had been convicted of.

9. The Authority referred to the documents provided in relation to the first applicant’s time in India and formed the view that they did not assist. The Authority addressed the documents in that regard, identifying problems with the same, as well as referring to a Department of Foreign Affairs and Trade (“DFAT”) country information report noting the prevalence of document fraud in Sri Lanka. The Authority did not accept that the first applicant’s name was published in the newspaper report provided alleging that he was a member of the LTTE or that his name was reported on television or otherwise published in Sri Lanka, or that because of that the authorities were alerted to his involvement in terrorist related activities.

10. The Authority did not accept that after the first applicant returned to Sri Lanka, he and the second applicant experienced a number of incidents involving authorities, which led to their decision to leave Sri Lanka for Australia.

11. The Authority did accept that the first applicant was in a refugee camp in India for some time and that the second applicant visited him there in 2011. The Authority found when the first applicant returned home and resumed working and that he experienced no issues with the authorities for the next four months until July 2012, which the Authority found undermines the claim that he was a person of interest and was being searched for all that time.

12. The Authority referred to the second applicant’s evidence about her experiences in Sri Lanka and the first applicant being arrested in India on a terrorist case and that if the first applicant returned home they would cut off the first applicant’s head and hang it in her home. The Authority found it not plausible that if that had happened the second applicant would have forgotten to mention in her Safe Haven Enterprise visa interview that such a gruesome threat had been made by the CID.

13. The Authority identified a number of concerns in relation to the credibility of the evidence of the second applicant and summarised those inconsistencies and discrepancies and found that they were significant.

14. The Authority also placed weight on the fact that the applicants both departed Sri Lanka legally using their own passports and the Authority did not accept that the first applicant would have been able to leave on a non-genuine passport and secondly, that if he was genuinely a person of interest to the point where the CID were searching for him as claimed, he would have been permitted to depart Sri Lanka.

15. The Authority found the issues go beyond minor discrepancies that could be attributed to factors such as the passing of time, problems with recall, difficulties with dates, misunderstandings in interpreted material, cultural communication issues, or lack of cohesive narrative due to trauma, all of which the Authority accepted can impact on the ability to present a cohesive narrative. Taking into account the numerous changes, inconsistencies, implausibilities and credibility issues in the applicants’ evidence, the Authority was satisfied they have exaggerated, embellished and fabricated parts of their evidence in order to bolster their claims for protection.

16. The Authority did not accept the applicants were of interest to the authorities at the time they left Sri Lanka and did not accept that the authorities were searching for either of the applicants. The Authority did not accept that an incident asserted by the first applicant involving a friend occurred.

17. The Authority found that after the applicants returned to Sri Lanka from India, neither applicant was singled out for adverse attention from authorities for any reason in the seven months before they left for Australia. The Authority found the chance that the first applicant being seriously harmed because of his ethnicity, his status as Tamil male from the north, travel to India, imputed political opinion, or previous work as a fisherman and engagement with the SLN to be remote. The Authority was not satisfied there is a real chance that the first applicant would be perceived as affiliated with, or a supporter of, the LTTE, or to hold views supporting a separate Tamil state, or that the second applicant is at risk of harm because of her association with the first applicant.

18. The Authority was not satisfied that the applicants have any increased risk of harm on re-entry to Sri Lanka due to the Department’s data breach.

19. The Authority referred to the applicants legally travelling on valid Sri Lankan passports and found that the applicants would not be at risk of prosecution for illegal departure. The Authority was satisfied that there is nothing in either applicant’s background that would arouse suspicion of the authorities or elevate their profiles. The Authority found that any short period of detention, and the questioning it entails, does not amount to a threat to the applicants’ liberty and is not otherwise serious harm. The Authority was not satisfied the applicants are at risk of serious harm on the basis they are returning asylum seekers from a Western country.

20. The Authority was not satisfied there is a real chance of the applicants being seriously harmed by Sri Lankan authorities, now or in the reasonably foreseeable future, for any of the reasons claimed.

21. The Authority found the applicants failed to meet the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicants do not meet the criteria in s 36(2)(a) of the Act.

22. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Sri Lanka from Australia, there is a real risk that the applicants will suffer significant harm. The Authority found the applicants do not meet the criteria in s 36(2)(aa) of the Act and affirm the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   11. The IAA committed jurisdictional error when it decided not to invite the applicant for an interview (para 8).

   Particulars

   i. At para 4 the IAA recorded details of Applicant 1’s 5 new claims;

   ii. At para 5 the IAA noted the explanations proffered by the applicant in his statement to the IAA as to why the claims were not put forward earlier to the Department;

   iii. At para 7 the IAA stated Applicant 1 had not satisfied [the IAA] ‘the information could not have been given to the Minister prior to the decision being made nor that the new information in the submission is credible personal information which was not previously known and had it been known, may have affected consideration of the applicant’s claims. The new information does not meet the requirements of s.473DD(b) and I am unable to consider it.’

   iv. At para 8, the IAA recorded ‘Applicant 1 states he is willing to attend an interview relating to “my new protection visa claims” explaining why the new information could not have been given to the Department before it made the decision and/or why the claims are credible. …I am not satisfied the circumstances of this case require me to invite Applicant 1 to attend an interview.’

   v. The IAA did not invite the Applicant 1 when it ought to have done so, and accordingly acted unreasonably in refusing the opportunity for the applicant 1 to explain the very matters upon which the IAA refused to consider the new information contrary to the principles in Minister for Immigration v Li (2013) 249 CLR 332 (cited in DZU v Minister for Immigration & Anor [2017] FCCA 851 at [120], thereby committing jurisdictional error.

   12. The IAA did not consider s. 473DD according to law when it decided it was prevented from considering new information, and so committed jurisdictional error.

   i. At para 4 the IAA recorded details of Applicant 1’s 5 new claims;

   ii. At para 5 the IAA noted the explanations proffered by the applicant in his statement to the IAA as to why the claims were not put forward earlier to the Department;

   iii. At para 7 the IAA stated Applicant 1 had not satisfied [the IAA] ‘the information could not have been given to the Minister prior to the decision being made nor that the new information in the submission is credible personal information which was not previously known and had it been known, may have affected consideration of the applicant’s claims. The new information does not meet the requirements of s.473DD(b) and I am unable to consider it.’

   iv. The IAA did not consider s 473DD (a) in determining whether or not s 473 (b) i or ii were or were not met, contrary to principles discussed in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [201]. In so doing the IAA failed to perform its statutory obligation or otherwise filed to consider relevant matters.

   13. The IAA committed jurisdictional error when it did not give him the benefit of the doubt as to the basis upon which he did not make the new claims before the Delegate.

   Particulars

   i. At para 4 the IAA recorded details of Applicant 1’s 5 new claims;

   ii. At para 5 the IAA noted the explanations proffered by the applicant in his statement to the IAA as to why the claims were not put forward earlier to the Department;

   iii. At para 7 the IAA stated Applicant 1 had not satisfied [the IAA] ‘the information could not have been given to the Minister prior to the decision being made nor that the new information in the submission is credible personal information which was not previously known and had it been known, may have affected consideration of the applicant’s claims. The new information does not meet the requirements of s.473DD(b) and I am unable to consider it.’

   iv. In light of the above the IAA should have accepted the reasons as to why the applicant did not previously disclose the new claims and accepted them as genuine and true or given him the benefit of the doubt as to that. Such acceptance would be reasonable and affected the assessment of his claims.

2. Mr Foster of counsel, who appeared on behalf the applicants, properly conceded that ground 13 was interdependent on ground 12. In that regard, Mr Foster had submitted in respect of the new claims that the applicants should have been given the benefit of the doubt in respect of the new claims. Mr Foster accepted in that regard that this would have required the Authority to make a favourable finding in respect of the power under s 473DD of the Act in respect of considering those claims. That was a proper concession by counsel to make in that regard.

Ground 11

1. In relation to ground 11, Mr Foster of counsel took the Court to the new claim material in the Court book that had been provided by the applicants and also to the Authority’s reasons, specifically in paragraph 8, declining to exercise the power under s 473DC of the Act. Mr Foster sought to emphasise the importance of the material to the applicants in respect of the new claims.

2. The Authority in its reasons summarised the nature of the new information in respect of the new claims and found all the new claims predated the delegate’s decision. The Authority noted that the first applicant stated in his submission to the Authority that he did not put forward his true claims to the Department because he was afraid he would be sent back to Sri Lanka or detained in Australia, and he had heard that people linked to the LTTE were sent back or detained and that the first applicant now realises this is his last opportunity to tell his true claims. The Authority referred to the first applicant’s explanation that he did not reveal the information because he did not come to Australia willingly, but to protect his life and that the first applicant was so scared he might be deported to Sri Lanka or jailed and he did not want to experience the hardship suffered in jail again, previously.

3. The Authority noted that the applicants were made aware at the beginning of the Safe Haven Enterprise visa interview of the importance of providing all their claims and information in support as soon as possible, as they may not have another opportunity to do so. The Authority found both applicants attended the Safe Haven Enterprise visa interview with their representative, a lawyer who had stated he explained everything to them about the process and, when they were asked, stated there was nothing in their application that they wanted to correct.

4. The Authority noted that the applicants provided additional documents in support during the Safe Haven Enterprise visa interview and afterwards their representative provided the delegate with a detailed post-interview submission and another lengthy document which compiled country information about Sri Lanka.

5. The Authority also noted at the entry interview, the first applicant was asked specific questions about whether he or any of his members of his family had been associated or involved with any political group or organisation and whether he or any family members had been involved in activities or protests against the government, and that the first applicant answered no.

6. The Authority also noted in the statutory declaration submitted with the Safe Haven Enterprise Visa application, the first applicant stated he had never had any links with the LTTE. The Authority noted in the Safe Haven Enterprise visa interview the first applicant stated he lived in an area that had always been under the control of the army and did not know anything about the LTTE and its recruitment practices, and said he was put in prison in India on suspicion of LTTE activities but when he was arrested he did not know what the case was against him.

7. The Authority referred to the first applicant’s claimed fear of disclosing the information and noted that when first interviewed, the applicants had recently arrived and did not have legal representation. The Authority referred to them having been released and having had the benefit of legal assistance to prepare the Safe Haven Enterprise visa application.

1. It was in those circumstances that the Authority noted that when the applicants were advised at the end of the Safe Haven Enterprise visa interview that any further information provided could be considered up to the date of the delegate’s decision, the first applicant stated that they had given all their evidence to the delegate.

2. The Authority also noted a period of some three months elapsed following the Safe Haven Enterprise visa interview, which the Authority considered more than adequate for the applicants to raise with their representative any concerns they had about being sent back to Sri Lanka or detained for a longer period if they had disclosed the alleged LTTE connections of the first applicant. The Authority found no credible explanation had been provided for why the applicants waited until being informed of the delegate’s decision to raise this important new claim.

3. The Authority also placed weight on the fact that the first applicant stated under oath at the Safe Haven Enterprise visa interview that he knew nothing about the LTTE. The Authority referred to the new information directly contradicting the earlier sworn evidence of the first applicant.

4. The Authority found the first applicant had not satisfied the Authority that the information could not have been provided to the Minister prior to the decision being made. Nor that the new information in the submission is credible personal information which had not previously been known or, had it been known, may have affected consideration of the applicants’ claims. The Authority found the new information did not meet the requirements of s 473DD(b) of the Act and held it was unable to consider the same.

5. It was in this context that the Authority turned to consideration of the exercise of power under s 473DC of the Act as summarised above. The Authority’s reference to the circumstances of the case not requiring the Authority to exercise the power under s 473DC of the Act clearly include the circumstances referred to above in the reasons of the Authority, as well as what was said by the Authority in the finding that the new claims were new information that did not meet the requirements under s 473DD of the Act, as well as taking into account the nature of the Act in respect of a review under Part 7AA of the Act. In those circumstances, the Authority’s reasons for not exercising their power under s 473DC of the Act cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 11 is made out.

Ground 12

1. In relation to ground 12, Mr Foster submitted that the Authority had failed to expressly refer in its reasons to s 473DD(a) of the Act and, in particular, that there was no express reference to exceptional circumstances.

2. The provisions of s 473DD of the Act are cumulative. There is no need for expressed reference to s 473DD(a) of the Act in the circumstances of the present case. It is apparent that the submissions advanced and on the information in the submission document to the Authority, at 251 to 253 of the Court Book that the applicants were seeking to address why the new information should be taken into account under s 473DD of the Act. In that regard, there was an explanation advanced as to why the claims were not put forward and a submission contending that the claims were credible.

3. The Authority’s reasons should not be read with a keen eye for error. The Court is not prepared to infer that the Authority failed to take into account s 473DD(a) of the Act in its deliberations. Further, having found that the applicants do not meet the criteria under s 473DD(b) of the Act, there was no requirement for the Authority to expressly refer to s 473DD(a) of the Act. I do not accept that the absence of express reference to exceptional circumstances meant that the Authority had misconstrued or failed to take into account the whole of the statutory provision in s 473DD of the Act in considering the new information. No jurisdictional error as alleged in ground 12 is made out.

Ground 13

1. In relation to ground 13, as earlier identified this ground was, in substance, acknowledged to be dependent upon ground 12. As the Court has found that the Authority did not engage in any misconstruction or jurisdictional error in its determination of whether the new information met the requirements of s 473DD of the Act, ground 13 cannot succeed.

2. The substance of ground 13 concerned an argument that the applicant should have been given the benefit of the doubt in the final deliberations, taking into account the new information. The Authority provided reasons why the new information was not something that the Authority could take into account. Accordingly, there was no circumstance for the Authority to apply any principle concerning giving the applicants the benefit of the doubt. No jurisdictional error as alleged in ground 13 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, accordingly, the amended application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 December 2018