CWO16 v Minister for Immigration

[2017] FCCA 599

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWO16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 599

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – fast track applicant – whether the applicant should have been afforded the opportunity to explain inconsistencies – whether the Authority’s reasons were copied and pasted – whether the Authority should have given notice when it departed from the delegate’s findings – no jurisdictional error identified – application dismissed.

Legislation:

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

Immigrants and Emigrants Act 1949 (Sri Lanka)

Applicant: CWO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2706 of 2016

Judgment of: Judge Street

Hearing date: 28 March 2017

Date of Last Submission: 28 March 2017

Delivered at: Sydney

Delivered on: 28 March 2017

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Stephen Hodges Solicitor

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Grant leave to the Applicant to rely on the amended application filed on 16 March 2017.

2. The amended application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2706 of 2016

CWO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 made on 8 September 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant is of Tamil ethnicity and a Hindu. The applicant alleged that he and his family had been supporters of the Tamil National Alliance for many years and in summary the applicant fears that he may be seriously harmed or killed by members of the TMVP who threatened to kill him if he did not join their party and also by reason of being a longstanding supporter of the TNA.

The Delegate’s Decision

1. The delegate found on 26 July 2016 that the applicant is not a person in respect of whom Australia has protection obligations and did not meet the criteria under s.36(2)(a) or s.36(2)(aa). The applicant was found not to be an excluded fast track applicant.

The Authority’s Decision

1. On 29 July 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter identified that the Authority had been provided with all the documents the Department considered relevant to the applicant’s case and that this included the material that had been provided by the applicant to the Department.

2. The letter indicated that the Authority would proceed to make a decision on the applicant’s case on the basis of the information sent to it by the Department unless the Authority decided to consider new information. The Authority, in the letter, explained that it can only consider new information in limited circumstances which were explained in an attached fact sheet. A Practice Direction was also provided identifying a timeframe for submissions.

3. On 25 August 2016, the migration agent on behalf of the applicant provided submissions. Those submissions dealt first with responding to credibility concerns. The submissions referred to the inconsistencies identified by the delegate as being ones that should not be taken to indicate that the applicant’s claims for protection lack credibility. The submission advanced that the inconsistencies should be accorded little weight in the overall process of assessing credibility and that the focus should remain on the fundamental nature of the claims. The submissions also addressed part of the reasoning of the delegate and, in particular, a certain TNA MP’s continued residence in Sri Lanka, and took issue with the adverse findings made in relation to the applicant’s fear of serious and significant harm.

4. The Authority in its decision identified the applicant’s background and that the delegate did not accept the applicant was actively involved with the Tamil National Alliance politician, Mr S, and did not accept the applicant was targeted for harm by members of the TMVP and that the delegate had found that it was not satisfied the applicant faced a real chance of serious or significant harm for any of the applicant’s claimed reasons if he was returned to Sri Lanka.

Material before the Authority

1. The Authority identified having regard to the material referred to it under s.473CB of the Act. The Authority made reference to the submissions provided on behalf of the applicant and that those submissions contained legal argument in response to the delegate’s decision, particularly in relation to credibility, and repeated some of the applicant’s claims. The Authority noted that it did not consider the submission to be new information and accordingly had regard to the submission.

Refugee Criterion Assessment

As a TNA/TMVP supporter

1. The Authority summarised the applicant’s claims for protection. The Authority set out the relevant law. The Authority made reference to the applicant’s claims in relation to his support for the TNA. The Authority found that the work described by the applicant that he did in 2010 was not something that the Authority would consider consistent with the applicant being a prominent person that would attract a lot of support.

2. The Authority noted that the applicant never claimed to be a member of the TNA and the Authority found that not to be consistent with the applicant’s claim that he was an avid supporter for many years. The Authority made reference to the applicant telling the delegate that he was not harmed during the 2010 elections and that sometimes political opponents looked at him harshly. The Authority found that was inconsistent with the applicant receiving death threats via the telephone from a TMVP member as claimed in the applicant’s statement.

3. The Authority made reference to the applicant’s claim to the delegate that the TNA was a single party and made reference to the country information quoted by the delegate that the TNA is an alliance of pro-Tamil political parties and not a single party. The Authority found that these difficulties in the applicant’s evidence undermined the credibility of the applicant’s claims that he had a prominent role within the TNA and with Mr S.

4. The Authority made reference to documents provided in support of the applicant’s claims. The Authority found the priest’s letter dated 15 June 2012 was not a credible document and found that the provision of the document by the applicant impacted on the applicant’s credibility. The Authority made reference to the letter purportedly from Mr S, on parliamentary letterhead, dated 16 December 2012. The Authority was not persuaded that the letter from Mr S was a credible document and gave no weight to it. The Authority also made reference to the prevalence of fraudulent documents being able to be obtained in Sri Lanka as identified in DFAT country material.

5. The Authority made reference to a card from the Human Rights Commission purporting to record that the applicant made a complaint on 12 June 2012 that he was threatened. The Authority made reference to the fact that the applicant had made no claims of making a complaint to the Human Rights Commission in his statement and that he did not discuss any such claim in his temporary protection visa interview. The Authority found that if the applicant had genuinely made a complaint to the HRC he would have raised that in his TPV statement. The Authority was not persuaded that the HRC card was a credible document and gave no weight to it and again took into account the country information in relation to the prevalence of document fraud in Sri Lanka.

6. The Authority made reference to the applicant’s claims of an incident on 6 June 2012 when two Tamil men in civilian clothing came to his house in search of the applicant and the men wanted the applicant’s motorbike and that the applicant got into an argument and that one of the men pulled out a pistol and threatened to shoot the applicant. The applicant alleged that two days later he was informed that his motorbike had been damaged. The applicant alleged that on 10 June 2012, two armed Tamil men came to his house in search of the applicant.

7. The Authority made reference to the proposition that notwithstanding the applicant claimed to have received death threats in 2010 to join the TMVP and notwithstanding that he had already made a complaint to Mr S and the priest and even though armed men connected to the TMVP had twice threatened him in the past week, the applicant claims he voluntarily went to the TMVP office on the evening of 11 June 2010 and took his wife with him because he was afraid. The Authority found this part of the applicant’s claim very difficult to accept as being plausible. The Authority did not accept that a person who considered themselves to be at risk of harm so serious as to have made complaints to the priest and politician would then voluntarily go to the TMVP office with his wife. The Authority found that this was implausible and undermined the applicant’s credibility in relation to his claims.

8. The Authority, taking into account all of the evidence before the Authority, considered the difficulties, inconsistencies and implausibilities with the applicant’s non-persuasive explanations that were identified in the Authority’s reasons outweighed the otherwise consistent parts of the applicant’s claims and outweigh the corroborative evidence from the country information regarding election violence.

9. The Authority rejected that the applicant or his family were ardent supporters of the TNA. The Authority accepted that the applicant was a low‑level supporter of the TNA. The Authority rejected that the applicant was a close friend to Mr S and rejected that he did campaign work. The Authority rejected that the applicant received telephone death threats in 2010 from a TMVP member. The Authority rejected that members of the TMVP damaged the applicant’s motorbike or threatened the applicant in 2012. The Authority rejected that members of the TMVP ordered the applicant to attend their office and the Authority rejected that the applicant attended the TMVP office with his wife and rejected the applicant’s claim that he was beaten or threatened by members of the TMVP at the TMVP office. The Authority rejected that the applicant made any complaint to Mr S or the priest or the Human Rights Commission. The Authority rejected that members of the TMVP had been to the applicant’s home since he left Sri Lanka and rejected the evidence that they had threatened the applicant’s family. The Authority found that the applicant had fabricated these claims entirely as a basis upon which to apply for protection.

10. The Authority found that the applicant was a low-level supporter of the TNA and considered it only to be a remote or speculative chance and, therefore, not a real chance, that the applicant faced serious harm from the TMVP or any other political opponent or paramilitary group because of his pro‑TNA political opinion now or in the reasonably foreseeable future if the applicant returned to Sri Lanka.

As a Tamil Born in the Eastern Province

1. The Authority was not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities for an imputed pro‑LTTE or anti-Sri Lankan Government political opinion or because of his age, because he is a Tamil, because he was born in the Eastern Province or worked in the Northern Province and/or because he lived in an area of Sri Lanka that was once under LTTE control now or in the reasonably foreseeable future if he returns to Sri Lanka.

As a Failed Asylum Seeker

1. The Authority was not satisfied the applicant faced a real chance of serious harm from the Sri Lankan authorities, due to being a failed asylum seeker, now or in the reasonably foreseeable future if he returns to Sri Lanka.

As an Illegal Departee

1. The Authority accepted that the applicant departed Sri Lanka illegally. The Authority found that the applicant was likely to be charged and fined under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the IAEA”) and then released. The Authority found that the imposition of any fine, surety or guarantee would not, of itself, constitute serious harm. The Authority found that there is not a real chance that the applicant would face a period of detention or imprisonment. The Authority considered the risk of the applicant being detained for several days and accepted that the conditions in the prisons were poor, due to lack of resources, overcrowding, and poor sanitation. The Authority found the questioning and detention that the applicant may experience would be brief and would not constitute serious harm, as defined in the Act. The Authority was satisfied that the provisions and penalties of the IAEA are laws of general application that apply to all Sri Lankans equally. The Authority found the law is not discriminatory on its terms and is not applied in a discriminatory manner or selectively enforced.

2. Having considered the applicant’s claims singularly and cumulatively, the Authority was not satisfied that the processes or penalties that the applicant may face as a person who left Sri Lanka illegally and returned to Sri Lanka would amount to serious harm. The Authority was satisfied that any process or penalty the applicant may face on return to Sri Lanka, because of his illegal departure, would not constitute persecution for the purpose of the Act.

3. The Authority was not satisfied the applicant has a well-founded fear of persecution from the TMVP, other political opponents, other paramilitary groups, and/or Sri Lankan authorities for a reason, or a combination of reasons, within s.5J(1)(a), now or in the reasonably foreseeable future, if the applicant returns to Sri Lanka. The Authority found that the applicant did not meet the requirements of s.36(2)(a) and was not a refugee within s.5H(1).

Complementary Protection Assessment

1. The Authority considered the applicant’s entitlement to protection on the grounds of complementary protection. The Authority made reference to the processes to which the applicant may be exposed upon return to Sri Lanka as an illegal departee. The Authority found that there is no real risk that the applicant will be arbitrarily deprived of his life or be tortured. The Authority found that the conditions of Sri Lankan prisons where the applicant may be remanded upon return, while poor, did not reflect an intention to inflict pain or suffering or extreme humiliation. The Authority found that the poor prison conditions to which the applicant may be subject to do not, of themselves, constitute significant harm as defined under the Act. The Authority was not satisfied, individually or cumulatively, that the processes or penalties to which the applicant would be exposed under the IAEA would constitute significant harm within s.36(2A) and s.5 of the Act.

2. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Proceedings Before this Court

Grounds of the Application

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

   Ground 1

   The IAA failed to put the applicant on notice that an integer of the applicant's claim that was accepted by the delegate would not be accepted by the IAA. See: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63.

   Particulars

   1. The delegate stated at paragraph 67, in the protection visa decision record,

   ...I accept that the applicant may have had altercations with unidentified men in relation to the use of his bike as claimed and I consider it to be a one off incident and a criminal in nature.

   The delegate further stated at paragraph 68, in the protection visa decision record,

   ...I accept that the applicant as a low level supporter of the TNA may be afraid of criminal activities associated with people belonging to TMVP and Karuna however country information states no information was found in relation to persons currently or previously aligned with the TMVP or the Karuna group being involved in criminal activity ....

   2. It is submitted that the delegate failed to consider if the “unknown men” who threatened to shoot and kill the applicant in the past were in fact members of the Tamil paramilitary group TMVP and Karuna. Nevertheless the delegate did accept that the applicant had “altercations with unidentified men” and considered such altercations to be “criminal in nature”

   3. The IAA rejected the claim that the applicant received threatening phone calls from a TMVP member and the claim that TMVP members took and damaged the applicant's motorbike and threatened the applicant in 2012 [17].

   4. The IAA failed however to assess and or consider the real risk of significant harm the applicant may face if returned to Sri Lanka which may emanate from the unidentified men.

   Ground 2

   The IAA failed to put the applicant on notice that an important piece of documentary evidence (i.e. a complaint card issued by the Human Rights Commission of Sri Lanka) that was before the delegate and impliedly accepted by the delegate would not be given weight by the IAA [15].

   Particulars

   1. The IAA refused to consider and gave no weight to contents in the complaint card issued by the Human Rights Commission of Sri Lanka which stated that a complaint had been made on 12 June 2012 indicating that the applicant was threatened.

   2. The IAA pointed out that the delegate did not question the applicant about the complaint card issued by the Human Rights Commission of Sri Lanka.

   3. The fact that the delegate did not question the applicant and was silent about the complaint card issued by the Human Rights Commission of Sri Lanka, would indicate that the delegate did not have concerns with regard to the document and impliedly accepted the document as a credible document and its contents to be true.

   4. The IAA erred by failing to put the applicant on notice that the complaint card and its contents would not be given weight.

   Ground 3

   Considering claims that were not made / put forward by the applicant would indicate the decision maker (the IAA in this instance) merely copied and pasted contents in a decision making template or another decision.

   Particulars

   l. At (21] the IAA states,

   ... I am not satisfied on the evidence before me the applicant's limited connection to the LTTE would be such that the applicant would have a profile which would bring him to the attention of the Sri Lankan authorities ....

   2. The applicant's written claims, does not refer to the applicant having any connection to the LTTE, limited or otherwise.

   3. It is submitted that paragraph [21] does not relate to the applicant.

   Ground 4

   The IAA committed error by failing to afford the applicant an opportunity to explain inconsistencies in his evidence and by failing to ask the applicant to expand upon and explain aspects of his account which it considered open to doubt.

   PARTICULARS

   (i) The IAA denied the applicant procedural fairness by failing to provide the applicant an opportunity to explain inconsistencies in his evidence

   (ii) The IAA also failed to ask the applicant to expand upon the aspects of his account which it considered open to doubt, and to ask the applicant to explain why his account should be accepted:

   (iii) At [14], the IAA noted that the applicant has never claimed to be a TNA member, which the IAA considered inconsistent with a claim that he was an ardent supporter for many years. However, the IAA did not put this to the applicant or allow the applicant an opportunity to explain this.

   (iv) At [14] the IAA stated that the applicant's assertion to the delegate that he was not harmed during the 2010 elections is inconsistent with his TPV statement where he declared that he received death threats via telephone from a TMVP member. However, the IAA did not put this inconsistency to the applicant.

   (v) At [16], the IAA made the following finding: “I do not accept a person who considered the risk of harm to himself to be so serious that he made complaints to the Priest and a politician, would also then voluntarily go to the TMVP office with his wife."  However, the IAA did not ask the applicant to expand on his account or explain why it should be accepted. This aspect of the account was undoubtedly crucial to the IAA's decision, as the IAA found, at [16], that “this implausibility undermines the credibility of the applicant's claims.”

   
   
   

   (vi) The IAA summarised at [17]: “Weighing up all of the evidence before me. I consider the difficulties. inconsistencies and implausibilities and the applicant's non-persuasive explanations that I have identified above outweigh the otherwise consistent parts of the applicant's claims ...” However, as the examples above illustrate, it is not obvious what these allegedly 'non-persuasive' explanations are, as the applicant was not given the opportunity to provide explanations

   (Errors in original)

Ground One

1. In relation to ground 1, Mr Hodges, solicitor for the applicant, pointed out that the delegate had accepted that there had been altercations by the applicant with unidentified men and that those altercations were criminal in nature. Mr Hodges submitted that in these circumstances the Authority was required to give the applicant an opportunity to give evidence and make submissions prior to making a finding contrary to that of the delegate. Mr Hodges also submitted that the Authority had failed to consider whether the applicant faced a real risk of significant harm from the unidentified men.

2. It is apparent from the Authority’s reasons that the Authority rejected the applicant’s claims in relation to the unidentified men and the incidents alleged in 2012. Those adverse findings by the Authority were open on the material before the Authority and cannot be said to lack an evident and intelligible justification.

3. I accept the first respondent’s submissions that Part 7AA and in particular, s.473DA, exclude any requirement upon the Authority to give the applicant an opportunity to put further submissions and give further evidence when departing from a finding made by the delegate. Moreover, in the present case, it is apparent that the Authority provided the applicant with the opportunity to put submissions or to adduce new evidence, and in that regard, that the applicant through his migration representative put submissions expressly in relation to the applicant’s credibility.

4. The Authority was not bound by the findings of the delegate. It was open to the Authority in its review to make findings that were reasonably open. For the reasons given, the adverse findings by the Authority were reasonably open. Ground 1 fails to make out any jurisdictional error.

Ground Two

1. In relation to ground 2, Mr Hodges submitted that there had been no questioning of the applicant by the delegate about the Human Rights Commission card. Mr Hodges submitted that in circumstances where the delegate had not questioned the applicant about the Human Rights Commission card, the Authority erred by failing to put the applicant on notice that the complaint card and its contents would not be given weight.

2. It was a matter for the Authority to determine what weight to give the evidence adduced before it in the conduct of the review. For the same reasons as given in relation to ground 1, Part 7AA in the conduct of the review does not require the Authority to identify to the applicant that it proposed to give no weight to the Human Rights Commission card.  I reject the submission that the delegate impliedly accepted that the card was genuine. It is not necessary for the delegate or for the Authority to refer to all pieces of evidence adduced in relation to the review. Ground 2 fails to make any jurisdictional error.

Ground Three

1. In relation to ground 3, it was open to the Authority to take into account a potential claim arising on the papers, given the applicant’s Tamil ethnicity. It was open to the Authority to consider whether the applicant would be imputed to have an LTTE connection. I do not accept that the reference in paragraph 21 of the Authority’s reasons to whether the applicant had an LTTE connection gives rise to any proper basis to find that the Authority engaged in the exercise of copying and pasting in the decision-making process.

2. On the material before the Court, the Authority’s reasons reflect an orthodox approach to the determination of the review and reflect a real and genuine consideration of the applicant’s claims. I reject the submission that the finding of the Authority did not relate to the applicant. I reject the submission that there was any copying or pasting by the Authority in relation to the potential for the applicant to have an LTTE connection. No jurisdictional error as alleged by ground 3 is made out.

Ground Four

1. In relation to ground 4, Mr Hodges, solicitor for the applicant, argued that the scheme of the Act under Part 7AA was such that the applicant should be given an opportunity to explain inconsistencies before the Authority makes its determination. In substance, Mr Hodges submitted that the applicant should be asked to expand upon the account of concern and given an opportunity to explain why that account should be accepted.

2. Mr Hodges took the Court through the statutory provisions including, in particular, the statutory discretion found in s.473DC(3) of Part 7AA. Mr Hodges took the Court to the reasoning of the Authority in its adverse finding as to the applicant’s credibility and, in particular, the proposition that the applicant voluntarily attended the TMVP office with his wife. Mr Hodges submitted that this was a crucial and critical part of the Authority’s reasoning in relation to the undermining of the applicant’s credibility and that the applicant should have been given an opportunity to provide an explanation.

3. As the Authority indicated, the applicant was given the opportunity to put submissions and to advance new information. The applicant, in fact, took advantage of that opportunity and put submissions. I find that those steps taken by the Authority complied with the Authority’s obligations of procedural fairness in the conduct of the review. I accept the first respondent’s submission that the Authority was not required to give the applicant an opportunity to respond in relation to considering and making findings upon the material that was provided to the Authority under s.473CB.

4. The first respondent identified that it is only where there is new information that an obligation is imposed upon the Authority under s.473DE. Given the scheme of Part 7AA and, in particular, s.473DA, I find that there is no obligation upon the Authority to provide the applicant with an opportunity to explain the inconsistencies critical to the Authority’s adverse findings on credibility from the material that was provided under s.473CB. No jurisdictional error is made out by ground 4.

5. The amended application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 April 2017