CUP16 v Minister for Immigration
[2017] FCCA 2438
•20 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUP16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2438 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of the Immigration Assessment Authority – whether the IAA erred in its assessment of “new information” submitted by the applicant – whether the IAA failed to consider the applicant’s claims – whether the IAA erred in its interpretation of the terms “intentionally inflicting” and “intentionally causing” within the meaning of s.5(1) of the Migration Act 1958 (Cth) – whether the IAA erred in its findings about what might occur to the applicant in light of his legal departure – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 46A, 473BB, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, div.3 of pt.7AA Other materials cited: |
| Cases cited: SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 SZTAL v Minister for Immigration & Border Protection [2017] HCA 34 |
| Applicant: | CUP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2641 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 3 August 2017 |
| Date of Last Submission: | 3 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2641 of 2016
| CUP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who arrived in Australia at Christmas Island by boat on 21 September 2012. He did not have a visa and so became an unlawful non-citizen upon arrival. This meant that, subject to the exercise by the Minister of a discretionary power to allow him to do so, the applicant was prevented from making a valid application for a visa.
On 30 November 2015, the Department of Immigration and Border Protection (Department) informed the applicant by letter that the Minister had exercised his power, under s.46A(2) of the Migration Act 1958 (Act), to permit him to apply for a Safe Haven Enterprise (subclass 790) visa (SHEV), a type of protection visa.
On 21 January 2016, the applicant made an application for a SHEV. In the circumstances, the applicant came within the definition of “fast track applicant” in s.5(1) of the Act.
The applicant claimed that he feared harm on the basis of his Tamil ethnicity, and as an illegal departee and asylum seeker.
On 22 July 2016, the delegate of the Minister made a decision to refuse to grant the applicant a SHEV. In light of the reasons for that decision, which need not be described in any detail for the purposes of these reasons, that decision was a “fast track reviewable decision” within the meaning of s.473BB of the Act, and so was referred to the Immigration Assessment Authority (IAA) for review under pt.7AA of the Act.
On 15 August 2016, the applicant’s migration agent sent to the IAA a number of documents including submissions. In those submissions, the agent stated amongst other things that the applicant had obtained a document from his uncle’s family indicating that his uncle was a chief policeman in the Liberation Tigers of Tamil Eelam (LTTE). The agent submitted that the information was credible personal information which was not previously known and may have affected the delegate’s consideration of the applicant’s claims had it been known. The agent sent further information to the IAA on 30 August 2016.
On 5 September 2016, the IAA made a decision to affirm the decision of the delegate.
The IAA accepted that the applicant had been detained in 2010 and 2011 by the Central Investigation Department (CID) and questioned about his uncle who may have been suspected of LTTE involvement. However, it did not accept that the applicant had been slapped or threatened with death as claimed. It found that the applicant had not been questioned after 2011 and was not of adverse interest to the authorities when he left Sri Lanka in September 2012. The IAA did not accept that the authorities had made inquiries about the applicant since his departure and found that he did not have a well-founded fear of harm simply for being a young Tamil male from the East, or as an illegal departee or failed asylum seeker.
For those reasons the IAA made a decision to affirm the delegate’s decision.
The applicant now seeks judicial review of the IAA’s decision.
Consideration
Ground 1: The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority; failed to ask correct questions and/or asked incorrect questions and irrational/illogical and/or denied procedural fairness
This rather, incoherently, expressed ground takes issue with the way in which the IAA dealt with certain information given to it by the applicant’s migration agent.
The “information” the subject of this ground is not specified in the amended application. In his written submissions the applicant refers to documents which, he argues, “went to some critical matters and thus were relevant considerations”. He argues that the IAA had not considered whether the reason for the lateness of this claim, being fear from the family members, could constitute exceptional circumstances as the information related to the applicant personally.
In order to understand this ground, it is necessary to set out first the relevant statutory provisions and then the passages in which the IAA dealt with the documents sent to it by the applicant’s agent.
As already noted, the IAA operates under pt.7AA of the Act. Division 3 of that Part (ss.473DA – 473DF) provides for the manner in which the review is to be conducted. Section 473DB(1) of the Act provides:
(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.
In spite of the limitation imposed by that provision, the IAA may get “new information” in certain circumstances and, subject to what follows, consider it for the purposes of making a decision on the review.
“New information” is information referred to in s.473DC(1) of the Act which provides:
(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.
(Emphasis in original)
The circumstances in which the IAA may consider any “new information” are defined in s.473DD of the Act which provides:
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.
(Emphasis in original)
In its statement of reasons, the IAA included a section dealing with the information that was before it and set out which of that information it had considered: see [2] – [8]. In this section, the IAA referred to the information provided by the applicant’s agent on 15 and 30 August 2016. It considered the information concerning the applicant’s uncle at [6]:
The applicant submits that he did not have any documentary evidence to put to the delegate at the SHEV interview that his uncle was possibly involved and had a high position in the Liberation Tigers of Tamil Eelam (LTTE) but has now supplied the 1999 police personnel file note. He says he was only recently able to convince his uncle’s family to provide the file note as they were concerned about getting into trouble with the Sri Lankan authorities. At the SHEV interview he said he suspected, but didn’t know, that his uncle may have been in the LTTE and he suspected possibly a high position. What the applicant has not addressed is why he did not and could not put the information about his uncle being in the LTTE police to the delegate without documentary evidence. I do not accept that waiting to obtain a piece of documentary evidence that you believes support a known but previously undisclosed claim amounts to exceptional circumstances. I am not satisfied that there are exceptional circumstances that justify considering the 1999 police personnel file note (and English translation) or the claimed that the applicant’s uncle was in the LTTE police.
In light of the statutory scheme, the applicant’s first ground can be understood to be:
a)in considering whether there were exceptional circumstances to justify considering the claim concerning the applicant’s uncle, the IAA ought to have, but did not consider the “circumstances of fear from family members”; and
b)the IAA ought to have considered the documents sent to it by the applicant’s agent because they had a direct bearing on the claims.
It is convenient to deal with the second of these first.
The fact that documents sent by the applicant to the IAA have a direct bearing on his or her claims does not, without more, mean that the IAA is bound to consider those documents. If the documents were also sent to the IAA by the Department under s.473CB of the Act, then the IAA must consider them: s.473DB(1). By contrast, if the documents constitute “new information” within the meaning of s.473DC of the Act, the IAA must not consider them for the purposes of making a decision in relation to a fast track reviewable decision except in the circumstances provided for in s.473DD. This part of the first ground ignores these statutory provisions and must be rejected in light of them.
The first part of ground 1 must also be rejected in light of the statutory provisions and in light of the facts of the case.
There are two parts to s.473DD of the Act. The first must be satisfied in the case of all “new information”, regardless of how it was obtained by the IAA. The requirement is that the IAA be satisfied that there are “exceptional circumstances to justify considering the new information”.
The second part relates to “new information” given, or proposed to be given to the IAA by the applicant. Under this part, the applicant bears the onus of satisfying the IAA of one of two matters:
a)first, that the information “was not, and could not have been” given to the Minister before his decision was made; or
b)secondly, in the alternative, that the “new information” is “credible personal information” which satisfies two further criteria:
i)it was not previously known; and
ii)had it been known, it may have affected the consideration of the applicant’s claims.
Here, the IAA addressed only the first requirement in s.473DD of the Act. In doing so, it expressly referred to the agent’s submission that the applicant was only recently able to convince his uncle’s family to provide the file note as they were concerned about getting into trouble with the Sri Lankan authorities. Given that express reference, it cannot be that the IAA overlooked it in connection with its consideration of s.473DD of the Act.
The fact is, however, that the IAA arrived at its conclusion by focusing on the underlying information, namely: the uncle’s position in the LTTE police, rather than the document said to support the existence of that information. It was the applicant’s failure to raise a claim of which he was aware even without supporting documentation that led the IAA not to be satisfied that there were exceptional circumstances justifying consideration of the information.
The first ground is rejected.
Ground 2: The Authority fell into error by failing to take into account/ignoring relevant considerations being the relatives and/or giving meaningful consideration of the Applicant’s claims thereby committing jurisdictional error
The particulars to this ground, reveal that the claim said to have been ignored by the IAA, was that the applicant’s cricket team members had been questioned about the applicant and his potential association with the LTTE.
The applicant claimed that the authorities had asked members of his cricket club about him after he had left Sri Lanka. Under the heading “Incidents after his departure”, the IAA expressly referred to this claim at [19] of its reasons. However, it rejected that claim given the nature of questioning about the applicant in 2010 and 2011: [21].
If, by “ignore”, the applicant means that the IAA failed to consider the claim, he is obviously incorrect. If, on the other hand, the applicant means that the IAA did not accept the claim, than he is correct in a factual sense, but he is incorrect insofar as he asserts that it amounts to jurisdictional error. This ground is rejected.
Ground 3: The Authority fell into error by failing to assess the actual link between the Applicant’s uncle who is a former high ranking LTTE police officer
The IAA accepted the applicant’s evidence that in 2009 the authorities started looking for his uncle and that, while he did not know the reason for the interest in him, speculated that his uncle may be suspected of some involvement in the LTTE. It also accepted that the applicant and his family had not been in touch with his uncle since he went missing at the end of the war in 2009.
The IAA also accepted that in 2010 the applicant was questioned by the CID about why he visited his uncle in 2006, what his uncle did, if he had received any training, and on whether he knew certain people in photographs shown to him. It also accepted that the applicant was detained by the CID in 2011 and asked about his uncle. However, the IAA found that the authorities had not questioned the applicant after he was released in 2011 and before he left Sri Lanka in September 2012 because they no longer had any adverse interest in the applicant after that time: see [18] of its reasons.
Later in its reasons, at [35], the IAA referred to information concerning people with links to the LTTE and found at [36], that the applicant had no actual links to the LTTE, other than a suspicion that his uncle may have, or that his uncle may be suspected by the authorities of having a connection to the LTTE. After examining in more detail the applicant’s link to his uncle, it stated at [36]:
… I do not accept, given his age at the time, the brevity of the visit and the lack of contact after that visit, and the resolved investigation already conducted by the authorities, that he would be viewed by the Sri Lankan authorities as having sufficient family links to or as a close relative of a suspected LTTE member. The applicant, whether due to his residence in LTTE controlled areas, his uncle or for those reasons together, does not have a profile that country information suggests he is at risk. …
The IAA also referred to these findings later in its reasons: [45].
These findings dealt conclusively with the applicant’s claims that he might be at risk of harm on return to Sri Lanka by reason of his connection to his uncle and his uncle’s possible connection to the LTTE. This ground is rejected.
Ground 4: The Authority committed jurisdictional error when it failed to take into account that the Applicant’s detention in poor prison conditions would constitute persecution complementary protection provisions and thereby applied the wrong test in relation to s 5 and s 36(2A) of the Migration Act 1958 and/or failed to address an integer/claim regarding the detention claim
The applicant claimed to satisfy the criterion for the grant of a protection visa in sub-s.36(2)(aa) of the Act on the basis that, if returned to Sri Lanka, he would be placed on remand in unsatisfactory prison conditions. The risk arose because, when he left Sri Lanka, the applicant did so in contravention of Sri Lankan law.
Sub-section 36(2)(aa) of the Act provides that a criterion for the grant of a protection visa, is that the applicant is:
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
Section 36(2A) of the Act provides that a person will suffer “significant harm” for the purposes of sub-s.36(2)(aa) if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
There is no issue that the circumstances relied on by the applicant could only have satisfied sub-pars.(d) or (e) of s.36(2A) of the Act. Those sub-paragraphs are subject of the following further definition in s.5(1) of the Act:
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
(Emphasis in original and added)
In SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 (SZTAL) Kenny and Nicholas J held at [59], that the natural and ordinary meaning of “intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct.”
In rejecting the applicant’s claims concerning sub-s.36(2)(aa) of the Act and prison conditions, the IAA applied the same reasoning as that of the majority of the Full Court of the Federal Court in SZTAL. The IAA explained, at [60] of its reasons for decision:
The applicant may be subjected to questioning on his arrival and poor prison conditions during any brief detention. Country information indicates that the poor prison conditions are due to overcrowding, poor sanitation and lack of resources. I am not satisfied, on the evidence, that there is an intention to inflict pain or suffering or extreme humiliation in any questioning or brief detention. These circumstances do not amount to the death penalty, an arbitrary deprivation of life or torture. I am not satisfied that being questioned, arrested, finger printed and photographed, any bail surety imposed and the poor prison conditions, to which the applicant may be briefly subjected, of themselves constitute significant harm as defined under s.36(2A) of the Act. For these reasons, I am not satisfied the applicant will face a real risk of significant harm during any questioning and processing at the airport or brief period of detention.
Special leave to appeal from the decision in SZTAL was granted by the High Court and judgment on the appeal was given on 6 September 2017: SZTAL v Minister for Immigration & Border Protection [2017] HCA 34. The appeal was dismissed by majority, the Court finding that the reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective intention: [26] (Kiefel, Nettle and Gordon JJ) and see [101] and [114] (Edelman J).
For those reasons, there was no error in the way in which the IAA dealt with the applicant’s claims arising out of the prison conditions in Sri Lanka.
Ground 4 is rejected.
Ground 5 – The Authority committed jurisdictional error when it applied the wrong test and/or failed to address an integer/claim regarding the detention claim upon return to Sri Lanka
The particulars of this ground reveal that the applicant’s concern is that the IAA failed to address the potential impact of the applicant’s links to his uncle if the applicant were to return to Sri Lanka. This ground fails because it is, in essence, nothing more than a different way of stating the argument in ground 3.
Ground 6: The IAA committed jurisdictional error when it presumed that a family member would be able to assist with the question of bail. These findings are not based on evidence
The question of bail arose in the context of the applicant’s claim that he would face prosecution under the laws of Sri Lanka for having left illegally in September 2012. The IAA accepted that the applicant had left Sri Lanka illegally and that under the Immigrants and Emigrants Act 1949 (Sri Lanka) there were penalties for such a departure. The IAA considered information concerning the fate of those people returning to Sri Lanka when they had departed illegally. It noted relevantly at [43] of its reasons:
… If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the Magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. …
The IAA then turned to make findings about what might occur to the applicant in light of his legal departure. It stated at [47] of its reasons:
Once before the Court, and if not dealt with on the spot if the applicant were pleading guilty, the applicant would ordinarily be released unconditionally or be bailed to return to Court at a later date. …
Contrary to the applicant’s submission, the IAA made no presumptions about bail at all. Critically, it made no finding that the family of the applicant would be required to do anything in respect of bail. Rather, its findings were based upon country information which stated, unequivocally, that bail was granted on personal surety. The information also stated that a family member may be required to act as guarantor. The IAA did not make a finding about that, but if it had, it would have been open to it. This is because the applicant said that he had family in Sri Lanka and made no claim that they would be unable to guarantee his return to Court in the event that he were charged for illegally departing Sri Lanka.
This ground is rejected.
Conclusion
The applicant has failed to establish that the IAA’s decision is affected by jurisdictional error. The application must be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 20 October 2017
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