CWP16 v Minister for Immigration

[2017] FCCA 1213

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWP16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1213

Catchwords:
MIGRATION – Immigration Assessment Authority – there is no obligation upon the Authority under Part 7AA to invite the applicant attend a hearing or to comment or respond to adverse findings – the Authority complied with its obligations of procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DA, 473DB, 473DC, 473GA, 473GB.

Applicant: CWP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2714 of 2016

Judgment of: Judge Street

Hearing date: 7 June 2017

Date of Last Submission: 7 June 2017

Delivered at: Sydney

Delivered on: 7 June 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr T Galvin

Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2714 of 2016

CWP16

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 Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA, 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 arrived in Australia in September 2012 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise visa on 15 November 2015. 

3. The delegate found that the applicant did not meet the criteria under the Act and refused to grant the applicant a Safe Haven Enterprise visa. The delegate found that the applicant was not 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 Authority identified that the documents considered relevant by the Department had been provided to the Authority and explained that it could only receive new information in limited circumstances and provided the applicant with an opportunity to put on new information and submissions.

Information before the Authority

1. On 8 August 2016, submissions were provided to the Authority on behalf of the applicant. The Authority identified the applicant’s background and had regard to the information referred under s.473CB of the Act. The Authority referred to the submissions dated 8 August 2016, with the exception of a submission which related to an allegation that the applicant had a past record of transporting goods for the LTTE, the Authority identified that the contents of the submissions were not new information and the Authority had regard to that information. In respect of the alleged past record of transporting goods, the Authority identified this was a new claim which had not been raised before and the Authority was not satisfied there were exceptional circumstances that justified considering that information and the Authority did not do so.

Consideration of the claims

1. The applicant claimed to fear harm on account of his Tamil ethnicity, as an imputed supporter of the Liberation Tigers of Tamil Eelam (“LTTE”), and as a failed asylum seeker who departed Sri Lanka illegally.

2. The applicant claimed that he had been arrested and detained and tortured on several occasions between 1995 and 1997. While the applicant acknowledged he had no LTTE connections, he said that his brother worked as a driver and transported goods for them. The applicant claimed that in 2012, ten soldiers went to his home where he was arrested, detained, threatened and told to confess to being a member of the LTTE. The applicant also claimed that his brother was detained and questioned about the applicant in 2015.

Consideration of the applicant’s claims for protection

1. The Authority accepted part of the applicant’s claims and made adverse credibility findings in relation to other parts of the applicant’s claims.  The Authority found that the applicant was arrested, detained and tortured in 1995. The Authority found that the applicant was not arrested, detained and tortured by the 512 Brigade 1997, as the brigade was based in Jaffna and the applicant lived in Colombo at the time. The Authority noted the applicant had not mentioned this claim at the time of his entry interview. The Authority was prepared to accept that the applicant was detained in an army camp and police station in Colombo in 1997 because those claims were already consistent with the country information.

2. The Authority found it was highly implausible that the applicant would have been detained in 2012, having been of no interest to the authorities since 1997. The Authority accepted that the applicant’s brother had worked as a driver and transported goods for the LTTE but found that the applicant did not claim to have any adverse attention because of that relationship. Because of the applicant’s profile, the Authority did not accept that his younger brother was questioned in the applicant’s absence.

Consideration of refugee convention criteria

1. The Authority found there was no credible evidence to suggest the applicant was of any interest to the authorities and concluded that he would not face harm because of any suspected LTTE connections.  In light of the country information, the Authority did not accept that the applicant would face harm because of his Tamil ethnicity. The Authority noted that there was no evidence that the authorities had ever had any interest in the applicant’s brother and found that the applicant would not suffer harm for that reason.

2. In light of the country information and the applicant’s profile, the Authority did not accept that the applicant would face harm of any kind as a failed asylum seeker. In relation to the applicant’s illegal departure, the Authority found that any experiences or penalties on return would not amount to serious harm. The Authority further found that the applicant would face a non-discriminatory law of general application. The Authority found that the applicant did not meet requirements of the definition of refugee in s.5H(1) of the Act and did not meet the requirement under s.36(2)(a) of the Act.

Consideration of complementary protection criteria

1. The Authority found the applicant did not satisfy the complementary criteria. The Authority referred to the consequences of the applicant’s illegal departure and found that the experiences that the applicant would encounter on return would not amount to significant harm.  Accordingly, the Authority affirmed the decision under review. 

Before this Court

1. On 2 February 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.

2. The grounds of the application are as follows:-

   Ground one-

   The IAA has committed jurisdictional error in my case as it has accepted my claims of my past adverse experience at the hands of the Sri Lank.an security forces but it declined its jurisdiction by failing to find that my fear of persecution is still well-founded. There is independent and reliable country information (E.g. DFAT Report) before the IAA that the circumstances in which I feared to live in Sri Lanka have not materially changed.

   Ground-2

   When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me for a hearing/invitation to comment on or respond to the adverse information on which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments relating to the issues raised including the issue of accepting that my older brother supported the L TTE and transported goods for them and that I did not claim to have experienced any adverse interest in connection with my brother and relied on this to refuse my protection visa in relation to my referred application with the IAA.

   I will provide the particulars of these grounds in my Amended Application when it is required by this Court.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that in summary this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, this decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the applicant’s application would be dismissed.

4. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Applicant’s submissions from the bar table

1. From the bar table, the applicant submitted there was an error in suggesting that he had been living in Colombo in 1997 and detained by the 512 Brigade. The Authority did not accept that the applicant was detained in 1997 by the 512 Brigade which was in Jaffna.  The Authority found the applicant was in Colombo. There was no error identified by reason of anything said by the applicant from the bar table and no error in the Authority’s understanding of the applicant’s claims and evidence.

2. The applicant asserted that a lot of mistakes were made but no other issues were identified by the applicant. The applicant identified that his family was still living in Jaffna. The applicant handed up a copy of a registration of civilians residing in 512 Brigade area, 2009, signed and dated in March of 2009 referring to the applicant and his family. The applicant submitted that that document had not been properly considered by the Authority. It is apparent on the face of the material that the Authority accepted the applicant’s evidence that he was living in Jaffna from 2001 until 2010. The document does not in any way otherwise advance any of the applicant’s claims to fear harm. There was no obligation on the Authority in these circumstances to expressly refer to the document. 

3. The applicant maintained, from the bar table, that he could not go back because of the threats to his life. In substance, the applicant’s submissions invite the Court to engage in an impermissible merits review. This Court does not have jurisdiction to revisit the merits.  Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1, this in substance reflects a disagreement with the adverse findings made by the Authority. The Authority correctly identified the relevant law. On the face of the material before the Court, the Authority complied with its statutory obligations. On the face of the material before the Court, the Authority complied with the obligations of procedural fairness applicable to the conduct of the review under Part 7AA by sending the applicant the letter dated 29 July 2016, by providing the applicant with an opportunity to put on submissions, and an opportunity to provide new information.

2. The Authority identified and expressly took into account the submissions with the exception of what the Authority found was excluded under s.473DB of the Act. There was no error in the Authority’s approach to the applicant’s submissions in that regard. The adverse findings by the Authority were open on the material before the Authority. Those adverse findings were the subject of rational and reasonable explanation by the Authority. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant took issue with the failure of the Authority to request the applicant to attend a hearing or to comment or respond on the adverse information. There is no obligation upon the Authority under Part 7AA to provide an opportunity for the applicant to attend a hearing. Nor was there any obligation, in the circumstances of the present case on the Authority to invite the applicant to comment or respond to adverse findings that the Authority might make. 

2. I accept the first respondent’s submission that the Authority was not under a duty to get, request or accept any information or to exercise its powers under s.473DC of the Act in the circumstances of the present case. I accept the first respondent’s submission that s.473DA of the Act in Division 3 of Part 7AA, together with s.473GA and s.473GB of the Act are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. Accordingly, there is no obligation on the Authority to invite the applicant to comment or to appear and no jurisdictional error is made out by ground 2.

Conclusion

1. I note that no amended application was provided, as identified, at the end of the applicant’s application. The application fails to disclose any jurisdictional error. No jurisdictional error is made out and the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2017