CWS16 and Ors v Minister for Immigration and ANOR and CWX16 v Minister for Immigration and ANOR

[2019] FCCA 816

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWS16 & ORS v MINISTER FOR IMMIGRATION & ANOR and CWX16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 816

Catchwords:
MIGRATION – Applications for judicial review – appeal of Immigration Assessment Authority decision – unreasonable exercise of discretion – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36(2)(a), 36(2)(aa), 473DB, 473DC(3), 473DD Part 7AA

Cases cited:

DFW16 v The Minister for Immigration [2018] FCA 746

DPI17 v The Minister for Immigration [2018] FCCA 2039

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32

First Applicant: CWS16

Second Applicant CWT16

Third Applicant CWU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2159 of 2016

Applicant: CWX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2161 of 2016

Judgment of: Judge Riethmuller

Hearing date: 1 October 2018

Date of Last Submission: 29 October 2018

Delivered at: Melbourne

Delivered on: 1 April 2019

REPRESENTATION

Counsel for the Applicants in MLG2159/2016 and MLG2161/2016: Mr McBeth

Solicitors for the Applicants in MLG2159/2016 and MLG2161/2016: Ravi James Lawyers

Counsel for the First Respondent  in MLG2159/2016 and MLG2161/2016: Mr Knowles

Solicitors for the First Respondent in MLG2159/2016 and MLG2161/2016: DLA Piper Australia

ORDERS

1. The Applications be dismissed.

2. The Applicants pay costs as agreed or otherwise assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2159 of 2016

CWS16

First Applicant

CWT16
Second Applicant

CWU16
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

MLG 2161 of 2016

CWX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

REASONS FOR JUDGMENT

Procedural background

1. The applicants in these matters form a family unit of a husband, and wife and two children. The application by CWS16 is that of the father, and the two children are included on that application. The application with respect to CWX16 is the application of the wife and mother in her own right. If either party succeeds the entirety of the family unit would be entitled to the relevant visas.

2. The family arrived in Australia by boat in October 2012. They applied for a temporary protection visa in August 2015 after the statutory bar against applications was lifted. Those applications were refused by a delegate of the Minister on 21 July 2016 in two separate decisions. The delegate’s decisions were referred to the Immigration Assessment Authority (‘IAA’) under part 7AA of the Migration Act1958.

3. The IAA affirmed the delegate’s decisions with respect to the parties on 13 September 2016.  The parties then sought judicial review in this Court.  Whilst there are two applications for judicial review in this Court, the matters were heard together and are suitable for a single judgment dealing with both matters. 

Background

1. The applicant husband sought protection on the basis that he was at risk of harm from the Sri Lankan Authorities as he is a Tamil male from the north who had been forced to help the Liberation Tigers of Tamil Eelam (“the LTTE”) during the war. He relied upon a scar on his leg as corroboration of a claimed assault by the authorities. He would not be returning with a valid passport after a considerable period abroad, and thereby drawing attention to himself. Also, his details had been disclosed as part of a significant data breach by the Department in February 2014. The applicant husband also claimed to fear being abducted by the Eelam People’s Democratic Party (“the EPDP”) in Jaffna, whom he said worked closely with the government in identifying LTTE supporters.

2. The applicant relied upon a number of events including that he and his fishing crew were forced to assist the LTTE in transporting members and goods in 1994 and that he was forced to do manual labour for the LTTE when he and his wife resided in an LTTE camp between 1995 and 1998.

3. He said that in mid-2006 he was arrested by the Sri Lankan Army or the Sri Lankan Police because of his previous connection with the LTTE and taken to an army camp where he was assaulted and interrogated. He said he was only released when his wife’s parents paid a bribe.

4. The fears of the applicant wife were based on the same facts and circumstances. In addition, both parties were fearful that the applicant wife may be sexually abused by the EPDP or others on return to Sri Lanka.

5. The delegate did not accept that the parties were able to satisfy the criteria in section 36(2)(a) of the Act, nor that Australia had protection obligations to them pursuant to section 36(2)(aa) of the Act.

6. When the matter was considered by the IAA, the Authority had regard to the applicants’ submissions made on 31 August 2016, and was satisfied that the new information regarding the applicants’ residence in a particular location and about the applicants’ daughter met the requirements of section 473DD of the Act. As a result, the IAA considered this new information.

7. The IAA accepted that the applicant had a low-level connection with the LTTE given his involvement with that organisation between 1994 and 1998.  They also accepted that he had been arrested, detained and harmed by authorities in 2006, and that he had been interrogated about his previous support for the LTTE.  However, the IAA was not satisfied that the applicant was of any continued interest to authorities on either an actual or imputed political opinion on the basis of supporting the LTTE but are relying, in particular, on the fact that he was issued a genuine passport in 2007 by the Sri Lankan government.

8. The IAA also took into account the increased demilitarisation of the north-east of Sri Lanka, more recent elections and decreases in abductions and ransoms: see, generally, [35] to [38]. The IAA was not satisfied that the generalised risk of gender-based sexual assault upon the applicant’s daughter, which did not stem from any particular incidents, was sufficient to justify granting a visa.

9. With respect to the data breach claim, the IAA was satisfied that no asylum claims were published which would put the applicant at risk with the Sri Lankan Authorities: see [45].

10. The IAA considered whether the applicant or his family would be harmed on return to Sri Lanka as failed asylum seekers and without a valid passport but concluded that they would only face, potentially, some discrimination or harassment.  The IAA also accepted that they had left legally on lawful and valid passports.  As a result, the applicants were not able to make out this part of their claim.

11. During the proceedings before the IAA, the applicants made the claim that when they were in Malaysia between 2007 and 2012 the United Nations High Commissioner for Refugees assessed them to be refugees within the treaty guidelines.  This forms the basis of the first ground for judicial review.

Ground 1

1. Ground 1 was framed as:

   1.The IAA acted unreasonably in the exercise of its discretion, or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under section 473DC to get information from the Department of Immigration and Border Protection, the UNHCR or the Malaysian Authorities that formed an integral part of the applicant’s claim, namely information regarding the assessment conducted by the UNHCR in Malaysia which determined the applicant and her family to be refugees within the meaning of the Refugees Convention.

2. The equivalent ground was set out with respect to the male applicant.

3. The IAA has power to invite a person to provide new information in writing or to provide information at an interview under section 473DC(3) of the Act. It is accepted that this discretion must be exercised reasonably and that, in appropriate circumstances, the IAA must consider whether to exercise its power: see, for example, Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32.

4. In this case, the IAA was aware of the claims relating to the UNHCR assessment, saying at paragraph 30:

   It was submitted to the IAA that the UNHCR's assessment conducted in Malaysia which found the applicants to be refugees should stand, and that only an application of a cessation clause under the Refugees Convention and Protocol should change their protection status. It was also submitted that although the applicants provided their consent, the delegate did not obtain or verify the applicants' information with the UNHCR. However, on the evidence, no further information has been provided by the applicants or their representative about this UNHCR process or the information given therein. Given this, and that the current assessment is being conducted under the Migration Act, I am not satisfied that the previous UNHCR determination is determinative of this review.

5. It is clear that the IAA approached the matter on the basis that the applicants had not provided to the IAA any further information with respect to the UNHCR assessment or its potential effect (as a result of Australia being a signatory to the treaty).  The IAA was not satisfied that the UNHCR determination was determinative of the application that was before the IAA, being an assessment conducted under Australian legislation, the Migration Act 1958.  As a result, the IAA did not pursue that issue further.

6. During the course of the hearing, issues were raised as to precisely what material was before the IAA at the time that it conducted its review.  As a result, the parties filed further affidavit material and made post-hearing submissions. Exhibit 1, tendered at the hearing, is a consent form signed by the parties giving consent to the UNHCR to the release of and sharing of information with the government of Australia.  This consent was given expressly for:

   … the purpose of making enquiries about the granting of any immigration status (including prior protection, refugee, asylum, temporary or permanent resident) –

7. There is also evidence of a letter written by the applicants’ then solicitor on 7 September 2013 enclosing the consent forms and sending them to the Department. 

8. As a result, the Minister obtained evidence from a departmental officer who examined the Department’s files with respect to the applicants and concluded that: 

   a)the consent documents formed part of an invalid protection visa application made by the applicants around 7 September 2013;

   b)the documents were not contained in the file of the Department with respect to the relevant temporary protection visa applications made on 19 August 2015 (which are the applications relevant to these proceedings); and

   c)the documents were not in the file of the second respondent (the IAA) with respect to the applicants.

9. Counsel for the applicants argued that the facts and circumstances in two decisions, DFW16 v The Minister for Immigration [2018] FCA 746 and DPI17 v The Minister for Immigration [2018] FCCA 2039, indicates that there is a practice on the part of the secretary of the Department to forward to the IAA the contents of invalid protection visa applications as well as the protection visa application in the particular proceedings. The particular cases do not provide great assistance in this matter. DWF16 concerned an expectation by an applicant that a previous invalid protection visa application would not be considered by the Authority, and DPI17, the delegate told the applicant that documents from a previous application had been considered, however those documents were not mentioned in the decision.

10. I am not persuaded that these two authorities show any particular practice of the IAA.  Even if they did indicate a practice, I am persuaded by the evidence given by the departmental officer on affidavit that these particular documents were not in the file provided to the IAA.  Even if there were a practice of providing files of previous invalid applications to the IAA, on the evidence of the departmental officer in this case no such file was not provided. 

11. On the material before me I am satisfied, on the balance of probabilities, that the IAA did not receive copies of the authorities signed by the applicants directed to the UNHCR for the sharing of information, nor the letter from the applicants’ previous solicitor in 2013 enclosing those documents for the attention of the Department.

12. In considering this ground it is important to start with a consideration of the operation of Part 7AA as a whole. Importantly, section 473DB of the Act sets out that the IAA is to conduct a fast track application without interviewing an applicant or seeking further information, subject only to its powers and directions that appear later in the part. The power of the IAA to invite further information is set out at section 473DC(3) of the Act.

13. In this case, submissions were made to the IAA by the applicants setting out that the UNHCR had made a positive refugee assessment with respect to the applicants and noted that this information had not been obtained by the delegate despite the delegate having been requested to do so and consent having been given:  see items 7 and 8 of the submission which appears at CB 824. 

14. The applicant argues that this assessment by the UNHCR should carry significant weight in any assessment carried out by the delegate or the IAA: see paragraph 18 of the applicant’s submissions. Counsel for the Minister pointed out that the findings by the UNHCR would not be determinative of the IAA’s review as it was a matter for the IAA to form its own views as to the facts and circumstances of the particular case. It was also apparent on the decision of the delegate (at paragraph 19, CB 374) that the delegate had not had regard to the UNHCR assessment, and therefore the applicant could have attempted to submit it to the IAA under section 473DD of the Act.

15. As counsel for the Minister argues, it is the applicant’s responsibility to make his case by way of providing evidence to the IAA. The IAA was under no obligation to exercise a power to obtain information simply because an applicant requested that it do so. This type of information was unlikely to be determinative of the outcome, it was simply the assessment of another administrative decision maker which is not binding on the IAA.

16. On the evidence before me, there is nothing to indicate what would actually be in the UNHCR records that may or may not be of assistance, nor that any request by the IAA to the UNHCR would have, in fact, yielded any useful result. As counsel for the Minister points out, neither the Minister’s delegate nor the IAA had any obligation to assist the applicant to gather evidence, as is provided for in section 5AAA of the Act which says:

    Non-citizen's responsibility in relation to protection claims

    (1)This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

    (2)For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

    (3)The purposes of this Act include:

    (a)the purposes of a regulation or other instrument under this Act; and

    (b)the purposes of any administrative process that occurs in relation to:

    (i)  this Act; or

    (ii)  a regulation or instrument under this Act.

    (4)To remove doubt, the Minister does not have any responsibility or obligation to:

    (a)specify, or assist in specifying, any particulars of the non-citizen's claim; or

    (b)establish, or assist in establishing, the claim.

17. Whilst the applicant signed a standard form of authority, there is no evidence before the Court that the applicant relied upon this and did not pursue his own enquiries to obtain the information.  Indeed, such a case would be difficult to make out given that the delegate made clear that he had not pursued such information, providing effective notice to the applicant that he must pursue it directly prior to the IAA hearing if he sought to rely upon it.  There is no evidence before me that the applicants could not, themselves, access the UNHCR material should they have sought to place it before the delegate or the IAA.

18. The real usefulness of the material from the UNHCR would lie in accessing any evidence or materials held by the UNHCR which were not available to the IAA when it was undertaking its task. There is no suggestion of any particular materials that were available to the UNHCR and were not before the IAA. Rather, the case is largely argued on the basis that the decision of the UNHCR officer to accept the claims is, of itself, a matter of significant weight to the IAA. Whilst the ordinary litigant may take great comfort in a different administrator having made the decision in their favour, this is neither binding nor, without more, persuasive upon the decision-maker in these proceedings.

19. The obligation upon a decision-maker to seek out information themselves has always been interpreted as being very limited. Significant to the exercise of the discretion to seek information is the question of the weight that that information may provide. Importantly, information such as a further medical report would rarely, if ever, be of such determinative significance as to enliven an obligation on the decision-maker to seek out the information. In addition, the proceedings before the IAA are much more truncated than before the AAT, and place severe limits upon the capacity of an applicant to provide further information.

20. In these circumstances, a reasonable exercise of the power to seek further information will also call for consideration as to whether or not an applicant has had a reasonable opportunity to put material before the IAA.  For example, in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, the determination at the delegate level did not address the issue of the availability of a relocation to the applicant, and the Authority’s decision turned upon that question. As the case unfolded in the process before the IAA, it became apparent that the applicant had never had an opportunity to address the relocation issue as it was not an issue before the delegate.

21. In this case, it is clear that the applicant was aware from the decision of the delegate that the UNHCR material had not been obtained by the Minister or the delegate. The applicant had, at that point, an opportunity to seek that information him or herself and place it before the IAA, by way of seeking the IAA’s exercise of the discretion to admit that additional material.  No material was placed before the IAA. 

22. The UNHCR material, on the facts, and circumstances and claims presented to the Minister and the delegate, was not likely to be determinative but, at best, evidence of a different administrative decision-maker’s views of the facts and circumstances of the case, and the possibility that some other evidence which the applicant was unaware of may be before the UNHCR. The latter point is speculative, at best, and akin to fishing for evidence that one does not know exists.  More significantly, the UNHCR decision in this case was eight years ago, and prior to the end of the civil war in Sri Lanka – there have been the most significant changes in circumstances in Sri Lanka in the relevant period.

1. Given the nature of the possible material that could come from the UNHCR, it does not appear to me to have been of sufficient significance to call for the IAA to specifically address exercising its powers to seek out that information in the context of this case.  In these circumstances, I therefore am not persuaded that this ground is made out and I therefore dismiss ground 1.

Ground 2

1. The second ground for judicial review is framed as follows:

   The IAA failed to give proper consideration to a claim arising from the material before it namely that the data breach that revealed the applicant's identities may prompt the Sri Lankan authorities to make inquiries into the applicant's circumstances that they otherwise would not have made and thereby expose her to persecution or to a real risk of significant harm.

2. The relevant parts of the decision by the IAA are at paragraphs 10, 45 to 47, 49 and 60 which provide as follows:

   10.The applicant's claims are contained in the information referred and subsequently given to the IAA. They can be summarised as follows:

   • He is a Tamil Hindu from Jaffna, Northern Province, Sri Lanka.

   • He finished school at age 12 and began working as a fisherman.

   • Around 1994, he and his fishing crew were forced to assist the LTTE by transporting members and goods (including parcels which may have contained weapons).

   • For several years from 1995 he stayed in an LTTE run camp and was subject to forced manual labour. In 1998 he and his wife moved to her home village in an army controlled area.

   • Around mid-2006 he was arrested in connection with his previous transport support for the LTTE. He was taken from the fish market by five men in civilian clothes who refused to identify themselves but whom he believed were Sri Lankan Army (SLA) or CID. They took him to an Army camp for one month where they repeatedly physically assaulted him (beaten, kicked, stabbed) and interrogated him about helping the LTTE and his life in the L TTE controlled Vanni region. His wife's parents paid money for his release.

   • After his release he went into hiding, moving between his mother's and other relative's houses. His relatives and neighbours helped him avoid getting caught in the regular SLA round-ups and helped him evade the SLA after they questioned his cousin about his whereabouts. His relatives also helped to support his family during this time.

   •Around mid-2007, with the help of his father-in-law and an agent who arranged passports (without requiring him to visit the passport office), he left Sri Lanka for Malaysia with his wife and daughter. His son was born in Malaysia.

   • The UNHCR in Malaysia assessed them to be refugees but they did not receive visas and life was difficult. They stayed five years and then came to Australia. They do not have a right to re-enter Malaysia.

   • While in Malaysia, a distant relative was shot by the SLA- the family was never given an explanation but they believe it was because they suspected the relative had helped the LTTE. This made him even more fearful.

   • He fears being harmed (abducted, arrested, detained, assaulted, killed) by the Sri Lankan authorities because he is a Tamil male from the North, he was forced to help the LTTE during the war and has a scar on his leg, because he would not be returning with a valid passport, and because he has spent considerable time abroad, because his details were disclosed as part of the Department of Immigration and Border Protection's (the Department) data breach of February 2014 and would be returning as a failed asylum seeker.

   • He also fears being abducted by the Eelam People's Democratic Party (EPDP) paramilitary group in Jaffna, who work closely with the government, identifying previous L TTE supporters.

   • He fears his wife and daughter will vulnerable as Tamil women and will be sexually abused by the EPDP or others upon return, and will not be protected by authorities.

   …

   45.I am satisfied that the applicant would not be perceived to be L TIE members or to have LTTE supporter profiles, even when taking into account their extended absence from Sri Lanka. DFAT advises that re-entry procedures are applied without discrimination on the basis of ethnicity and I find this indicative that the authorities do not impute failed Tamil asylum seekers as being LTIE members or supporters. On the evidence I am not satisfied that the applicants have engaged in any activities with the Tamil diaspora in Malaysia or Australia that would contribute to any risk or bring them to the adverse attention of authorities. There is also no indication that they have openly criticised the Sri Lankan government, or openly shared information which would embarrass authorities and I have not accepted above that the applicant daughter's outlook or appearance would bring her to the adverse attention of authorities upon return. In the temporary publication of the applicants' details through the Department of Immigration's data breach, I am satisfied that no asylum claims were published and the Sri Lankan authorities therefore would not know the reasons put forward in their applications. Country information also does not support that persons who have been in immigration detention in Australia or failed asylum seekers are imputed as having committed a crime, apart from potentially, illegally departing (discussed below).

   46.I found above that the applicant was not considered by authorities to be an LTIE member and their interest in him as a supporter decreased over time and diminished by the time he and his family obtained passports and lawfully departed. I am satisfied that the applicants have not subsequently become of interest due to their considerable time abroad or any activities they have undertaken while away. I am not satisfied that their profiles are such that the applicants will be at risk of harm upon return on the basis of the Departmental data breach, being failed asylum seekers who spent considerable time abroad, nor for the applicant's previous support or his profile as a Tamil male from the North. I am not satisfied that the applicants have a well-founded fear of persecution on the basis of any imputed LTIE support or links.

   47. With the exception of the applicant son who was not yet born, the family departed Sri Lanka lawfully through an approved port (Colombo Airport). While they are no longer in possession of those passports, I am satisfied that through the normal entry procedures described above, the lawful mode of the family's departure and the applicant son's recent birth will be apparent. That is, they will not be treated as having left illegally and will not therefore face a chance of harm on the basis of illegal departure. I am also satisfied that country information does not indicate the son's subsequent birth will present risks to any member of the family upon return.

   …

   49.I have considered the risk of harm to the applicant, a Tamil male from the Northern Province who was arrested in 2006 on for previous LTTE support and who was temporarily of some low level interest to the authorities in 2006-07, has some familial connections to suspected LTTE members or supporters and has spent extended time abroad. By the time of his departure in 2007 I found the authorities no longer suspected him of LTTE membership or support and I am not satisfied that he would be suspected as such on return to Sri Lanka. Even with these previous circumstances and that authorities would (from the Departmental Data Breach and his mode of return) be aware that the applicant has sought asylum in Australia and spent considerable time (nine years) abroad, I am not satisfied that these circumstances cumulatively give rise to a well-founded fear of persecution.

   …

   60.I have considered the applicants' circumstances in their totality. I have considered the risk of harm to the applicant (and his children), in relation to his profile as a Tamil male from the North, who has some familial connections to persons suspected of LTTE membership or support and who resided in Millar Kudiyiripu, was arrested in 2006 in connection to LTTE support and was subsequently monitored after his release and would be returning as a failed asylum seeker who has spent considerable time abroad and whose details were published in the Departmental Data Breach. I have also considered the applicant daughter's profile and his son's overseas birth. However when considered cumulatively, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that any of them will suffer significant harm.

3. The substance of the findings by the IAA are that: 

   a)the applicants’ names were contained within the information published on the internet as part of the data breach;  and

   b)the nature and circumstances of their application and claims was not published on the internet.

4. The applicant argues that the IAA failed to consider the claim from the perspective that the applicant’s name being upon a list of names contained in the data breach may have prompted the Sri Lankan Authorities to reconsider their views with respect to the importance of the applicant and his perceived LTTE links, thus creating a greater degree of risk and therefore a risk sufficient to show that he was entitled to a visa.

5. The arguments raised by the applicant are squarely dealt with in paragraph 49 of the decision.  The IAA has looked at all of the previous circumstances of the applicant, and considered his risk if he were to be returned to Sri Lanka when his mode of return and the data breach are considered “cumulatively”.  I am not persuaded that the IAA has failed to consider and deal with this issue as required according to law. 

6. In the circumstances, I therefore dismiss the applications.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  1 April 2019