CVV16 v Minister for Immigration

[2018] FCCA 3451

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVV16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3451

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether there was a constructive failure by the Authority to exercise jurisdiction – whether the Authority misconstrued or misapplied s.473DD(b) – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant: CVV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 455 of 2016

Judgment of: Judge Street

Hearing date: 26 November 2018

Date of Last Submission: 26 November 2018

Delivered at: Perth

Delivered on: 26 November 2018

REPRESENTATION

Counsel for the Applicant: Mr M Crowley

Solicitors for the Applicant: AUM Legal

Counsel for the Respondents: Mr PJ Hannan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 26 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 455 of 2016

CVV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 23 September 2016 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil from Jaffna Northern Province of Sri Lanka and arrived in Australia as an unauthorised maritime arrival on 13 October 2012.

3. The applicant claimed to fear harm on account of his Tamil ethnicity, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and his membership of certain social groups comprising failed Tamil asylum seekers and persons who have illegally departed Sri Lanka.

4. On 25 July 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. Part of the applicant’s claims involved a particular incident on 17 January 2010 at which time the applicant alleged he was detained and tortured. After 12 days, the applicant alleged he returned to a bus station and that his father was contacted by an unknown person and that when his father arrived, the applicant was taken to hospital. 

5. In support of that claim, paragraph 24 of the applicant’s statement of protection claims at page 48 of the Court Book, referred to that alleged incident, and claimed that he tried to get a medical assessment done so he could give it to the Australian government and that he has a human rights letter that he will bring to the interview.  The applicant also alleged in paragraph 25 that people informed his father and that they took him to the Human Rights Commission of Sri Lanka. It is apparent from the delegate’s decision that the delegate did not accept that the applicant was abducted by unknown persons, tortured and held captive for 12 days before being released. 

6. On 26 July 2016, the Authority wrote to the applicant and provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information. The Authority in its reasons identified the background to the visa application and had regard to the material referred by the Secretary under s.473CB of the Act.

7. The Authority identified the new material provided by the applicant which included a description of a complaint receipt confirmation dated 29 January 2010 from the Human Rights Commission of Sri Lanka at Vavuniya addressed to the applicant’s father. In relation to the new material provided, the Authority identified that the applicant had provided no submissions with the further documents supplied to the Authority, nor an explanation given as to the relevance of any of the documents submitted, including the untranslated documentation. The Authority referred to there being nothing in the record of the applicant’s interview with the delegate on 23 June 2016, or in the other material before the Authority to indicate the relevance of the untranslated documentation. The Authority referred to there being no explanation as to how the documentation could not have been provided to the department prior to the primary decision made on 25 July 2016 as required under s.473DD(b)(i) of the Act.

8. The Authority found in the absence of explanation as to its relevance, that it was not satisfied that the untranslated materials constitute credible personal information that may have affected consideration of the applicant’s claims, as required under s.473DD(b)(ii) of the Act. The Tribunal identified that in those circumstances, it had not considered the information associated with the untranslated documentation provided. 

9. The Authority then turned to the documentation containing English language texts relating to the Human Rights Commission Sri Lanka and appearing to connect the applicant’s claim in relation to his father making a complaint to the body on 29 January 2010. This was clearly a reference by the Authority to the substance of the applicant’s alleged abduction and detention identified and rejected by the delegate, and referred to by the applicant in his statement of protection claims. The Authority proceeded to identify having regard to the totality of the evidence before the Authority, that the Authority was not satisfied there were exceptional circumstances to justify considering this new information as required under s.473DD(a) of the Act. The Authority also referred to the fact there was no explanation that had been proffered as to why the information could not have been provided to the Minister before the decision was made. 

10. The Authority then proceeded to deal with other new information, being a letter from a church.  The Authority noted the applicant had listed his religion as Hindu and made no mention previously of any involvement with a Christian church. The Authority found, having considered the totality of the evidence, that the Authority was not satisfied there were exceptional circumstances that would warrant consideration of this new information. The Authority also took into account that the applicant had not provided any explanation as to how the information/documentation could not have been provided to the department prior to the delegate’s decision.

11. The Authority identified that it had not considered the new information that the applicant had sought to introduce to the Authority.

12. The Authority summarised the applicant’s claims and evidence including expressly referring to the alleged kidnapping on 14 January 2010 and being held for 12 days. The Authority expressly referred to the applicant being taken to a Human Rights Commission of Sri Lanka by his father and that he has a human rights letter regarding this event. The Authority referred to the applicant staying with his mother for three months and then obtaining work in a bike shop.

13. The Authority accepted that the applicant’s father had been a retailer and head of a shopkeeper association and that in this role the applicant had assisted his father with a particular memorial day.  The Authority did not accept the applicant’s involvement in any activity at the university in 2005 and 2006. The Authority found the applicant’s level of involvement at university was low-level and a matter that the applicant had conceded with the delegate at his interview. The Authority found the applicant would not be subsequently targeted in the manner described. The Authority found the applicant does not face a real chance of serious harm upon return to Sri Lanka now and in the reasonably foreseeable future.

14. The Authority did not accept the applicant’s claims to have been targeted in a shooting in 2008 when he was on his way home from school at an external campus. The Authority found there were significant inconsistencies in that regard. The Authority did not accept the applicant’s claim in May 2009 that three armed persons visited his home accusing him of being an LTTE member.

15. The Authority did not accept the applicant’s claim that he was kidnapped, tortured and detained for 12 days in January 2010.  The Authority found there was a want of plausible reasons why the event may have occurred and found there were a number of inconsistencies between the applicant’s statement of protection claims and his evidence provided at his interview to the delegate. The Tribunal identified the inconsistencies in that regard.  The Tribunal found the applicant had invented significant aspects of his claim relating to the kidnapping.

16. The Tribunal took into account country information. The Tribunal did not accept the applicant’s claims in relation to the 2009 home visit or the 2010 abduction and detention. The Authority did not accept that the applicant’s home was visited in 2012 as claimed. The Authority did not accept the applicant faces a real chance of significant harm upon return to Sri Lanka on the basis of any imputed pro-LTTE political opinion. 

17. The Authority found the applicant’s Tamil ethnicity and race would not give rise to the applicant facing any serious harm upon return to Sri Lanka. The Authority was not satisfied the applicant faces a real chance of harm by reason of being a failed returned asylum seeker. The Authority was not satisfied the applicant faces a real chance of harm due to being a failed asylum seeker now or in the reasonably foreseeable future if he returns to Sri Lanka. 

18. The Authority accepted the applicant departed Sri Lanka illegally. The Authority found any questioning and detention the applicant may experience would be brief and would not constitute serious harm as defined in the Act. The Authority found the provisions of the Immigrants & Emigrants Act 1949 (Sri Lanka) are laws of general application that are applied equally and not in a discriminatory manner. The Authority was satisfied the process or penalty which the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purpose of the Act. 

19. The Authority found the applicant not to be of adverse interest to the Sri Lankan authorities on the basis of being a Tamil or being suspected of having LTTE links. The Authority found the applicant’s claims in their totality do not give rise to a real chance of serious harm now or in the reasonably foreseeable future. The Authority found the applicant does not have a well-founded fear of persecution.

20. The Authority found the applicant failed to meet the requirements of the definition of “refugee” in s.5H(1) of the Act. The Authority found the applicant failed to meet the criterion in s.36(2)(a) of the Act and found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that the applicant would face a real risk of significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision of the review.

The ground

1. The ground in the amended application is as follows:

   1. The Immigration Assessment Authority’s (IAA) decision was vitiated by a constructive failure to exercise jurisdiction, or a denial of procedural fairness, because the IAA misconstrued or misapplied paragraph 473DD(b) of the Migration Act 1958 (Cth) resulting in the IAA refusing to consider ‘new information’.

   1.1 The IAA erred in refusing to consider a document (CB249 [7]) ‘appear[ing] to connect to the applicant’s claim’, by reasoning that there were no ‘exceptional circumstances to justify considering this new information, as required under paragraph 473DD(a), but not considering whether the new information was also ‘credible personal information’ under paragraph 473DD(b)(ii), and to that extent capable of informing the ‘exceptional circumstances’ requirement.

2. Mr Crowley of counsel on behalf of the applicant, confirmed that ground 1 particular 1.2 was no longer pressed and was abandoned. Mr Crowley’s submissions focused on the requirements of s.473DD of the Act in respect of the complaint document the subject of the Authority’s reasons in paragraph 7 and identified at pages 225 to 228 of the Court Book.

3. Mr Crowley submitted that the Authority failed to take into account s.473DD(b)(ii) of the Act. Mr Crowley submitted that the Court should infer that the Authority had not taken into account the second limb of s.473DD(b)(ii) of the Act as it was not expressly referred to in paragraph 7 of the Authority’s reasons. Mr Crowley also sought to emphasise that the reference to s.473DD(b)(ii) of the Act in paragraph 6 of the Authority’s reasons supported an inference being drawn that the Authority had not had regard to the whole of the provision in considering the new information under s.473DD of the Act the subject of paragraph 7.

4. Mr Crowley drew the Court’s attention to the requirement for reasons in s.473EA of the Act and submitted that the Authority had engaged in a jurisdictional error by reason of misconstruing or misapplying s.473DD of the Act in respect of the new information.

5. Mr Crowley also referred the Court to the applicant’s statement of protection claims in which there was a reference to there being communications with the Human Rights Commission Sri Lanka. It is clear from the delegate’s reasons that the document the subject of the alleged notification to the Human Rights Commission Sri Lanka was the subject of an adverse finding by the delegate in respect of the alleged incident.

6. The Authority was correct to identify the human rights complaint material as being new information. The Authority’s reasons are not to be read with a keen eye for error and must be read as a whole. It is patent on the face of the Authority’s reasons in dealing with the new information that the Authority understood and took into account the whole of the provisions of s.473DD of the Act. I do not accept that it was necessary in the context of considering the new information the subject of the human rights complaint for the Authority to make any express finding in relation to s.473DD(b) of the Act. I do not accept that the Court should infer in the circumstances of the present case where the Authority clearly referred to the whole of the provision in the context of considering new information, that the Authority had not taken into account the whole of the provision in its determination under s.473DD(a) of the Act referred to in respect of paragraph 7 in respect of the complaint material the subject of that paragraph.

7. The Authority referred to the totality of the evidence before it, in the context of having identified the nature of the letter and the adverse findings that have been made by the delegate in respect of the particular incident. The Authority also identified the applicant’s statement of protection claims, including the assertion in respect of the Human Rights Commission Sri Lanka letter in the third-last dot point of paragraph 10 of the Authority’s summary of the applicant’s claims. This means that there is no basis to infer that the Authority failed to take into account the information before the Authority in considering the application of s.473DD of the Act. It was not necessary for the Authority to expressly refer to and make a finding under s.473DD(ii) of the Act.

8. In the circumstances of this case, it was apparent that the incident the subject of the alleged letter had been the subject of an adverse finding by the delegate. It is also apparent that the Authority understood the nature of the information before it in that regard. I do not accept that the Authority misconstrued or misapplied s.473DD of the Act. The Court finds on the face of the material before the Court, that the Authority took into account the whole of the provision in s.473DD of the Act in its determination in respect of the human rights complaint material the subject of paragraph 7. The omission of express reference to s.473DD(b)(ii) of the Act in paragraph 7 is not a proper basis to infer that the Authority did not take into account the whole of the provision in its determination in that regard. Further, there is no inadequate reasoning by the Authority in respect of the new information. No jurisdictional error as alleged in ground 1 is made out. 

9. Accordingly, the amended application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  1 February 2019