Cve16 v Minister for Immigration
[2018] FCCA 2628
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVE16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2628 |
| Catchwords: MIGRATION – Application for review of a decision of the Immigration Assessment Authority – safe haven enterprise visa – procedural fairness – where Authority considered each of the Applicant’s claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 36, 46A, 65, 425, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE |
| Cases cited: CKG16 v Minister for Immigration and Border Protection [2018] FCA 362 |
| Applicant: | CVE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2107 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 7 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Mr Murano |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
There is leave to the Applicant to amend the application in a case filed 4 September 2018 such that the order sought is as follows:-
“Pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth) the order made 4 September 2018 be set aside such that the proceedings commenced by the filing of an application on 29 September 2016 are reinstated”.
The application filed 29 September 2016 is reinstated.
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $2,324.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2107 of 2016
| CVE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made 5 September 2016 in which the Authority affirmed a decision of a delegate of the First Respondent (‘the delegate’) to refuse to grant the Applicant a Safe Haven Enterprise visa (Class XE) (subclass 790) (‘the SHEV’).
The application was filed by the Applicant a considerable period of time ago now, namely on 29 September 2016. There are two grounds of the application, and they are as follows:-
“1. The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.
2. The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant’s credibility was an important factor in the Second Respondent’s decision that he was not a refugee, and an oral interview can give an insight into a person’s credibility that is otherwise unavailable. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell in to error/denied the Applicant procedural fairness.”
The First Respondent seeks dismissal of the application and costs. The First Respondent contends that the decision of the Authority discloses no jurisdictional error.
The Court has before it the evidence as contained in the Court Book filed 29 March 2017 and the submissions of the First Respondent filed 21 August 2018. Although the Applicant was ordered to file and serve written submissions, the Applicant failed to do so. The Applicant was thus given an opportunity this day to make oral submissions and took up that opportunity. The written submissions of the First Respondent were translated to the Applicant by the interpreter provided this day to assist the Applicant.
Background
The Applicant was born in Talaimannar, Mannar, Sri Lanka. He is of Tamil ethnicity and Catholic faith. He has not married and has no children. In his application for the SHEV, he stated he attended formal schooling and completed primary and secondary education in Colombo. His employment history in Sri Lanka as detailed by him was with his family’s dried fish processing business in Kuttiduwa, Negombo. After the death of his father in 2005, he became owner-manager of the business.
In August 2012, with the assistance of people smugglers, the Applicant departed Sri Lanka for Australia. He arrived in Australia on 10 August 2012 as an unauthorised maritime arrival. On 14 January 2013, he participated in an entry interview. On 27 November 2015, the Department of Immigration and Border Protection (‘the Department’) invited the Applicant to apply for the SHEV (by lifting the s.46A(2) of the Migration Act 1958 (Cth) (‘the Act’) bar) and on 19 January 2016, the Applicant lodged an application for the SHEV claiming to fear harm on the basis of his ethnicity, threats made to him in relation to business debts, and because he departed Sri Lanka illegally and claimed asylum in Australia.
On 16 March 2016, the Applicant participated in an interview to discuss his SHEV application. On 30 March 2016, after the Applicant’s interview, the Applicant’s representative provided the Department with written submissions. Those submissions also identified a further claim that the Applicant feared harm on the additional basis of his membership of a particular social group, ‘returnees from the West failed asylum seeker’.
By a decision dated 14 July 2016, the delegate found that the Applicant was not a person to whom Australia owed protection obligations under either ss.36(2)(a) or 36(2)(aa) of the Act and refused to grant the Applicant the SHEV.
By reason of the timing of his arrival in Australia and his status as an “unauthorised maritime arrival”, the Applicant is a person deemed to be a “fast track Applicant” pursuant to s.5(1) of the Act, and therefore subject to the merits review framework and procedure that is set out in Part 7AA of the Act. Accordingly, on 15 July 2016, the Department referred the adverse decision of the delegate to the Authority for review under Part 7AA of the Act. Material was referred by the Secretary of the Department under s.473CB of the Act to the Authority.
On 15 July 2016, the Authority sent to the Applicant a copy of its fact sheet and practice direction which noted, amongst other things, that the Applicant could provide a written submission and new information to the Authority in certain circumstances, but should do so within 21 days of the referral.
As noted by the Authority in its Decision and Reasons (‘the Decision Record’) at paragraph 3, the Authority received a legal submission from the Applicant’s representative on 14 August 2016. That submission was directed primarily at making “comments” on the delegate’s decision, but additionally contained extracts from, and items of, country information, that it was said supported the Applicant’s claim to fear harm as a returnee and as a Tamil. The country information was information published in June and July 2016, which was not before the delegate at the time the decision was made, in addition to information included in an earlier submission to the delegate dated 30 March 2016. The new information was published less than a month prior to the delegate’s decision and the Authority was satisfied that in the circumstances of the Applicant’s case, it could not have been provided to the Minister before the decision was made. Both reports, the Authority noted, were 2016 updates of reports either cited by the delegate or in the representative’s submission to the delegate, and as more recent versions of material before the delegate, the Authority was satisfied that there were exceptional circumstances to justify considering that new information.
The Authority identified the Applicant’s claims for protection in paragraph 4 of the Decision Record. Those claims were summarised by the Authority as follows:-
“…
The applicant was born in Thalaimannar, Mannar. In 1983 the area on which his family’s land was situated was declared a high security zone, the properties were destroyed and converted into a Navy camp and the family moved to Colombo. In 2009 the applicant and his mother returned to Thalaimannar to enquire about retrieving their land but were unsuccessful. The government did not assist the applicant with his queries or allow him to access the land. The applicant believes this is because of his Tamil ethnicity.
The applicant has experienced harassment by the police as a result of his Tamil ethnicity. He has been stopped, identified as a Tamil, accused of being a terrorist and asked about whether he was connected to the LTTE or carried or used arms. He was held for half an hour and only allowed to go when he spoke Sinhala, cried and pleaded. The police believe all Tamils are LTTE sympathisers and terrorists. The majority of the Sri Lankan authorities are Sinhalese and the applicant sees a difference in their treatment of his Sinhalese friends. The applicant is distrusted because he is Tamil.
The applicant’s father owned a dry fish business in Colombo. In 2000 the government destroyed the applicant’s father’s shop, along with others. Sinhalese shop owners were subsequently able to rebuild but the Tamil shop owners were not. The disrespect from the government contributed to the applicant’s father committing suicide in 2005. The applicant and his mother continue to pursue the matter in the courts and have made ongoing efforts to seek compensation. In 2010 they were given permission to re-erect the shop but were prevented from doing so by members of parliament. In 2014 they were again given permission but there was a demonstration over the issue which turned violent. The applicant fears he could be caught up in a similar event in the future.
After his father’s death the applicant took over the dried fish business which had by then moved to Negombo. The business ran into trouble because the applicant owed approximately 15 laks to suppliers who had sold him bad fish which he could not sell. From August 2012, he began receiving threats that he would be killed if he did not pay the money he owed. He encountered one of the suppliers in the market who accused him of not paying the debt and injured the applicant’s eyes. On the morning before the applicant left Sri Lanka, four men came to his house and threatened that he would be killed. That evening the applicant went to a party, heard that a boat was leaving for Australia and departed that same night.
The applicant will be unable to survive if he returns to Sri Lanka. He has received death threats and is fearful his life will be taken by the shop owners. He will not be protected by the authorities because of his ethnicity. He cannot relocate because he would be living in hiding and would be recognised as a Tamil wherever he went.
The applicant fears harm from the authorities who affect his ability to subsist. They discriminate against and do not support the livelihood of Tamil shopkeepers and do not respect the rights of Tamils to sustain a livelihood and wealth. He has suffered degrading treatment and this will continue.
The applicant also fears harm because he left Sri Lanka illegally and sought refuge in Australia, on the basis of being imputed as a terrorist and LTTE sympathiser, and because he is Tamil.”
The Authority then proceeded to set out the relevant law concerning the assessment required under ss.36(2)(a) and 36(2)(aa) of the Act and proceeded to carefully and in a comprehensive way consider each of the claims raised by the Applicant, exhibiting clear and accurate reasoning processes in respect of the Authority’s assessment of the evidence before it, leading to conclusions based on that logical process in the course of the Decision Record.
The Authority accepted that the Applicant had a business debt; that his eyes were injured by a supplier; and that on one occasion men came to his house and made threats against him. The Authority, however, was not satisfied on the Applicant’s evidence that he would face a real chance of serious harm in relation to this debt. The Authority noted it was now approximately four years since the Applicant departed from Sri Lanka and the Applicant’s evidence was that the suppliers of the business had not contacted his mother, or undertaken any other follow-up activity since his departure from Sri Lanka on the same day that he was threatened by the suppliers at his home. The Authority noted that the Applicant’s evidence was that his mother still lived in Colombo and it was evident, from the Applicant’s SHEV application, that he was in regular contact with her.
The Authority accepted that the Applicant’s family land had been reclaimed in 1983 and that subsequent attempts made by the Applicant and his mother to retrieve their land or seek compensation had been unsuccessful. The Authority was also satisfied that the Applicant’s claims regarding the destruction of his father’s shop in Colombo was credible and that a disturbance had taken place in 2014 connected with attempts to reconstruct the shop. The Authority accepted it was unlikely that the Applicant would be able to reclaim land or obtain compensation in the reasonably foreseeable future, and that the situation with respect to the shop would continue into the future. The Authority was not however satisfied, that the ongoing denial of a remedy would threaten the Applicant’s capacity to subsist and was not satisfied, given the lack of any retribution against the Applicant in the past, that there was a real chance he would face harm in the future related to his pursuit of the issue of the family land and the shop.
In respect of the Applicant’s claim that he would be imputed with LTTE association or support and suffer harm or suffer other harm as a Tamil, the Authority accepted the Applicant’s claim concerning an interaction with police during which he had been identified as a Tamil and questioned about using or carrying arms and accused of being a terrorist, as claimed by the Applicant. The Authority noted that the Applicant experiencing such an incident was entirely consistent with country information, that under the previous government and during a civil war the police conducted cordon and search operations in Colombo and monitored and harassed Tamils, particularly young men from the north, and the Authority accepted that it had occurred as claimed. However, the Authority did not accept that the Applicant was suspected of having any association with the LTTE as, on the Applicant’s evidence, after this incident he was allowed to go and there were no other incidents, and police did not follow up after the incident.
The Authority was not satisfied that the Applicant was in any way a person of interest to the Sri Lankan authorities and was not satisfied there was a real chance that he would be imputed with a pro-LTTE or anti-government opinion on the basis of his Tamil ethnicity or that he would otherwise be suspected of any association with the LTTE. The Authority was also not satisfied the Applicant would experience monitoring and harassment on return to Colombo (the area being highly integrated with roughly equal populations of Sinhalese, Tamils and Muslims) or that he would be impacted by any language barriers due to his ability to speak Sinhala. The Authority also discounted the possibility that the Applicant would experience discrimination or other harm in respect to future attempts to earn a livelihood.
The Authority accepted that by manner of his return, the Sri Lankan authorities would know or infer the Applicant made a claim for asylum and he would be subject to background checks on arrival. However, having regard to country information and considering the Applicant’s “circumstances as a whole”, the Authority was not satisfied there was a real chance that an investigation into the Applicant on return would lead to any adverse interest or otherwise lead to harm. The Authority found that the short period of detention at the airport and any questioning it entailed did not amount to serious harm.
The Authority found the Applicant would be charged on return and might be held in custody at the airport and potentially over a weekend pending appearance before a magistrate owing to his illegal departure from Sri Lanka. The Authority found there was not a real chance of a custodial sentence being imposed on the Applicant or of him otherwise facing a lengthy term of imprisonment. The Authority found that a fine, which could be paid by instalment, did not amount to serious harm.
The Authority, again having regard to country information and its earlier findings that the Applicant had no adverse background, was not satisfied there was a real chance of the Applicant being subject to torture or other mistreatment while on remand. The Authority acknowledged the country information indicated that prison conditions in Sri Lanka did not meet international standards but found on the basis that any period of detention would be brief, that this would not rise to the level of threat to life or liberty or to significant physical harassment or ill treatment or otherwise amount to serious harm. The Authority found that the investigation, prosecution and punishment of the Applicant under the Immigrants and Emigrants Act 1949 would be the result of a law of general application and did not amount to persecution within the meaning of s.5J(4) of the Act.
Considering the Applicant’s circumstances as a whole, the Authority was not satisfied that the Applicant met the criterion in s.36(2)(a) or the criterion in s.36(2)(aa) of the Act.
Consideration
In oral submissions this day, the Applicant was unable to elaborate upon his grounds of judicial review by any particularisation of them. Each of the Applicant’s two grounds are, in essence, concerned with alleged failures by the Authority to afford to the Applicant procedural fairness.
Rather, the Applicant’s oral submissions were addressed to re-agitate factual matters determined by the Authority and included a statement that he is frightened to return to Sri Lanka. The Applicant claimed that the Authority had not considered everything he had submitted, that the Authority did not give him a visa, and further, that he could not go back to live in Sri Lanka.
The Authority did consider each and every claim raised by the Applicant, setting out in the Decision Record firstly what those claims were, and thereafter proceeding to give each claim individual attention under the relevant headings as set out in the Decision Record. The Applicant disagrees with the findings of the Authority.
In respect of the grounds of judicial review which both go to a denial of procedural fairness, the Court notes that the Authority’s obligation to afford procedural fairness to the Applicant is circumscribed by Part 7AA of the Act. In s.473DA(1) of the Act, there is an exhaustive statement of the requirements of the natural justice hearing rule in Part 7AA. Section 473DA(2) of the Act provides that nothing in Part 7AA:-
“…requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Subject to Part 7AA, the Authority must review a fast-track reviewable decision by considering the “review material” and without accepting or requesting “new information”.[1] New information is defined as being documents or information that were not before the Minister when the Minister made the decision under s.65 of the Act, and which the Authority considers may be relevant.[2] The Authority is prohibited from considering any new information unless certain conditions are satisfied, as set out in s.473DD of the Act.
[1] Migration Act 1958 (Cth) s 473DB.
[2] Migration Act 1958 (Cth) s 473DC(1).
Also relevant to this codified scheme is that the Authority is (“subject to this part” being a reference to Part 7AA of the Act) required to review a fast-track reviewable decision without interviewing the referred Applicant,[3] and is only required to invite an Applicant to comment on “new information” in writing or at an interview, if two preconditions are met, being that:-
a)the Authority considered the new information; and
b)the “new information” will be the reason or a part of the reason for affirming the decision.[4]
[3] Migration Act 1958 (Cth) s 473DB(1)(b).
[4] Migration Act 1958 (Cth) s 473DE.
Whilst the Authority is required, in performing a review under Part 7AA of the Act, to comply with s.473DE of the Act, in the circumstances of this case, no obligation arose in respect of this provision. That is because the only “new information” considered by the Authority was the country information identified on the Applicant’s behalf in the Authority submissions. That country information did not answer the statutory description of new information that “would be the reason or a part of the reason for affirming a fast-track reviewable decision”. The information was not adverse to the Applicant’s interests as it was put before the Authority in support of the Applicant’s claim. It was not relied upon by the Authority to make dispositive findings as submitted by the First Respondent and as identified in the Authority’s reasons at paragraphs 13 to 19 of those reasons. In any case, the Authority was not obliged to identify the new country information of the Applicant or to invite him to comment on its significance because, as set out in s.473DE(3)(a) of the Act, the new information was “not specifically about the referred Applicant and is just about a class of persons of which the referred Applicant is a member”.[5]
[5] CKG16 v Minister for Immigration and Border Protection [2018] FCA 362, 14-15.
Likewise, as submitted by the First Respondent, Part 7AA does not contain a provision analogous to s.425(1) of the Act (the Tribunal must invite an Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review). The Authority was not required to identify for the Applicant “critical matters” and to afford him a separate opportunity to provide a response to such matters.
Nothing in respect of the Applicant’s factual matters as before the Authority, and the material referred to the Authority, required the Authority to depart from the legislative imperative that the review be undertaken without interviewing the Applicant.
Contrary to what the Applicant appears to assert in the grounds of judicial review, the Applicant’s credibility was not ultimately dispositive of the matter. Rather, it was the Authority’s assessment of the Applicant’s evidence (which for the most part was accepted by the Authority) in combination with country information that led the Authority to reject the claims of the Applicant to be a refugee and/or a person to whom Australia owed complementary protection.
The application cannot succeed. No jurisdictional error attends the decision of the Authority. The application must be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 18 September 2018
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