CYO16 v Minister for Immigration

[2017] FCCA 1250

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYO16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1250

Catchwords:

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority’s findings were inconsistent – whether the Authority failed to have regard to certain documents – whether the Authority should have invited the applicant to comment on adverse information – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: CYO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2762 of 2016

Judgment of: Judge Street

Hearing date: 9 June 2017

Date of Last Submission: 9 June 2017

Delivered at: Sydney

Delivered on: 9 June 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,814.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2762 of 2016

CYO16

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), 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 protection visa.

2. The applicant was found to be a Tamil Hindu from the Eastern Province of Sri Lanka and his claims were assessed against that country. The applicant claimed to fear harm for reasons of his Tamil ethnicity, imputed political opinion and membership of a particular social group.

3. The applicant arrived on Christmas Island on 10 October 2012. The applicant applied for a protection visa on 24 February 2016. The delegate found that the applicant failed to meet the criteria and refused to grant the applicant a protection visa on 18 July 2016.

4. The applicant was found to be a person who was not an excluded fast-tracked applicant.

The Authority’s Decision

Information before the Authority

1. On 19 July 2016, the Authority wrote to the applicant, identifying that the matter had been referred to the Authority for review.

2. The letter explained that the Authority could only receive new information in limited circumstances, and attached a fact sheet and Practice Direction, and provided the applicant with an opportunity to put on submissions and new information. The applicant’s migration agent wrote to the Authority on 8 August 2016 and provided information, including submissions, from the applicant and further country information.

3. The Authority in its decision, on 21 September 2016, identified that it had regard to the material referred to it under s.473CB of the Act. The Authority made express reference to submissions received on behalf of the applicant and that the Authority considered the same not to be new information and had regard to it. The Authority made reference to country information that was before the delegate and found that those documents were not new information.

4. The Authority also made reference to a number of documents submitted by the applicant in relation to his father’s membership of the TMVP. The Authority noted that the issue of the father’s involvement with the TMVP was discussed at length during the Safe Haven Enterprise visa interview. The Authority noted that there had been no reasons provided as to why those documents could not have been produced prior to the delegate’s decision and the Authority was not satisfied there were exceptional circumstances to justify considering those documents. The Authority also noted that it accepted the applicant father’s involvement in the TMVP. The Authority made reference to another document that was before the delegate and it identified the same was not new information and accordingly had regard to it.

Consideration of applicant’s claims

1. The Authority set out the applicant’s claims. The applicant claimed to fear harm from the Sri Lankan authorities and the Karuna Group because of his LTTE involvement and because of his father’s involvement in the TMVP.

2. The Authority did not accept that the applicant was forcibly recruited by the LTTE and subsequently arrested by the army due to his inconsistent account of what occurred in his entry interview and the Safe Haven Enterprise visa application. The Authority did not accept that the CID had been looking for the applicant since he had been in Australia as he claimed. The Authority did not accept the applicant’s claims in relation to his involvement with the LTTE and prior harm from the Sri Lankan authorities and was not satisfied the applicant would face serious harm in the future on this basis.

3. The Authority found that there was not a real chance the applicant would be harmed due to his cousin’s involvement with the LTTE, noting that the applicant had not claimed to be harmed for that reason and the Authority found that there was no credible information to suggest that the applicant would be harmed.

4. Given the inconsistencies which were raised in the applicant’s account of the threats he received from the Karuna Group, the Authority did not accept the applicant or his father or any other member were ever threatened by the Karuna Group or any other unidentified persons before or after the 2012 elections. The Authority did not accept that the applicant’s family had been approached, harmed or threatened since the applicant’s departure from Sri Lanka. The Authority did not accept that the applicant would be harmed on the basis of his involvement with the TMVP, as his father continues to live in his home area and there is no credible information before the Authority to suggest the applicant’s father or any other family member had faced any harm.

5. The Authority considered the applicant’s claim to fear harm on account of being a Tamil from the east of Sri Lanka, who is returning as a failed asylum seeker, but did not accept that the applicant had a profile that would attract adverse attention from the Sri Lankan authorities on the basis of his ethnicity.

6. The Authority did not accept that any brief period of detention would amount to serious harm and found that any treatment the applicant may face for leaving Sri Lanka illegally would be under a law of general application and did not amount to serious harm. The Authority did not accept that the applicant would face any harm as a failed asylum seeker due to his political involvement.

7. Having considered the applicant’s circumstances individually and cumulatively, the Authority found the applicant is a Tamil, who will be returning to Sri Lanka as a failed asylum seeker who departed illegally, and that he and his father has been involved in the TMVP. The Authority was not satisfied the applicant’s claims in their totality give rise to a real chance of serious harm now or in the reasonably foreseeable future. The Authority was not satisfied the applicant had a well-founded fear of persecution.

8. The Authority found the applicant did not meet the requirements of s.5H(1) of the Act and found the applicant did not meet the criteria under s.36(2)(a) of the Act.

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

Proceedings before this Court

1. On 9 February 2017, a Registrar of this Court made orders providing an opportunity for the applicant to file an amended application, affidavit evidence, and submissions. The applicant filed an amended application and affidavit evidence. The affidavit evidence by the applicant annexed material that was not before the Authority and went to the merit of the applicant’s claims.

2. Objection was taken to the admissibility of that material on the grounds of relevance. The Court rejected the affidavit material on the grounds it was not before the Authority and accordingly not relevant to establishing any jurisdictional error as alleged in the applications.

Grounds of the amended application

1. The applicant filed an amended application identifying the following grounds:

   Ground one-

   The IAA has committed jurisdictional error in my case as it has accepted my central claims of my past adverse experience at the hands of the Sri Lankan 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 and particulars

   The IAA's decision has been affected by a jurisdictional error because the IAA has failed to have regard to the following documents submitted by me to the Immigration. They are:

   President of Sri Lanka Mahinda Rajapaksa has written a letter to my father.

   The Complaint made to the Human Rights

   Sri Lankan Police entry

   TMVP's general secretary has sent me a letter confirming that I had problems in Sri Lanka.

   The letter from the Justice of the Peace is confirming the problems to me.

   Proof of 200,000.00 salaries earning in Sri Lanka at a Dialog company indicating I am not an economic refugee and had to feel the reasons said in my refugee claims.

   The CID is still visiting my home in search of me due to the reasons that my cousins were in the LTTE in a key position and they are still being in search of the Sri Lankan security forces. This was not taken into account by the IAA.

   There is independent and reliable evidence before the IAA that I was in the LTTE. The IAA has failed to regard this fact in their decision making.

   The new information has annexed with this was not before the IAA but this evidence substantiates my refugee claim and the above said documents before the IAA which were potentially cogent to my refugee claims to fear of my harm in Sri Lanka. The IAA failed to have regard to these documents.

   Ground-3

   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 including the current country 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 in paragraphs 44 and 45 of the IAA's decision of 21 September 2016 and relied on this to refuse my protection visa in relation to my referred application with the IAA.

   (Errors in original)

Consideration of claims

1. 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 error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that 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, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed.

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

Submissions from the bar table

1. From the bar table, the applicant repeated the substance of his claims and made assertions that the Authority had not taken into account material that was in the Court book.

2. There is no basis for finding the Authority failed to have regard to the material to which the Authority referred. In the reasons of the Authority, a number of the documents referred by the applicant were expressly referred to. It was not necessary for the Authority in its reasons to refer to every piece of evidence that was tendered.

3. The applicant maintained that he had told the truth and that because the decision had failed to accept that Australia owed him a protection obligation, it must be incorrect. In substance, the applicant’s submissions from the bar table invite the Court to engage in impermissible merits review. The Court has no power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1

1. In relation to ground 1, the assertion that the applicant’s central claims were accepted is not correct. The substance of ground 1, in essence, is a disagreement with the Authority’s adverse finding in relation to the applicant not having a well-founded fear.

2. Ground 1 is, in substance, an invitation to this Court to engage in impermissible merits review. This Court does not have power to make fresh findings of fact. No jurisdictional error is made out by ground 1.

Ground 2

1. Ground 2, in substance, repeats the submissions made by the applicant from the bar table, asserting that the Authority did not have regard to documents that were before it.

2. Not all of the particulars referred to by the applicant identify material that was before the Authority. There is no reference to the applicant’s 200,000 salary, albeit there were submissions put that he was on a decent salary.

3. The letter written to the applicant’s father was referred to by the Authority in its reasons. There is no obligation on the Authority to refer to every piece of evidence that was before it. On the face of the material before the Court, there is no basis to find that the Authority did not have regard to the whole of the material referred to it under s.473CB as well as the Authority expressly referring to the submissions and further material that was provided to the Authority in respect of which it found it could have regard.

4. The substance of ground 2 is, in essence, to invite the Court to engage in impermissible merits review. The Authority did not accept that the CID was visiting the applicant’s home after he came to Australia. The adverse finding by the Authority that the applicant did not have any previous involvement with the LTTE was open on the material before the Authority and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 2.

Ground 3

1. Ground 3 contends that the applicant should have been invited to comment or invited to attend a hearing in relation to adverse information. The scheme of Part 7AA is to provide an efficient and quick review of fast-track reviewable decisions. Subject to the powers given to the Authority under Part 7AA, the Authority does not hold hearings and is required to review the decisions on the papers that are provided to it.

2. I accept the first respondent’s submission that s.473DA(1) provides that Part 7AA Division 3 is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. There is no obligation upon the Authority in the present case to invite the applicant to appear or to comment on the Authority’s concerns or adverse information.

3. The Authority complied with the statutory requirements under Part 7AA and with the dictates of procedural fairness in the sending of a letter of 19 July 2016, providing the applicant with an opportunity to put on submissions and provide new information, an opportunity which the applicant engaged with in the present application.

4. The Authority expressly referred to taking into account information provided by the applicant in response to that letter, which the Authority found was not new information. Accordingly, no jurisdictional error is made out by ground 3 of the amended application.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2017