CYQ16 v Minister for Immigration

[2017] FCCA 3193

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYQ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3193

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred by failing to find the applicant had a well-founded fear of persecution – whether the  Authority erred by not inviting the applicant to attend an interview, comment on or respond to adverse information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 424A, 425, 473DA, 473DB, 473DC, 473DD, 473DE, pt.7AA

Immigrants and Emigrants Act (Sri Lanka)

Cases cited:

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Applicant: CYQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2765 of 2016

Judgment of: Judge Smith

Hearing date: 21 November 2017

Date of Last Submission: 21 November 2017

Delivered at: Sydney

Delivered on: 21 November 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Mr B Kaplan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2765 of 2016

CYQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat and without a visa on 17 September 2012.  That meant that he was unable to apply for a protection visa unless the Minister exercised a non-compellable power to allow him to do so.  The Minister exercised that power and on 17 December 2015 the applicant applied for a Safe Haven Enterprise Visa.  In that way, the applicant became a fast-track applicant within the meaning of the Migration Act 1958 (Cth) (Act). 

2. The applicant’s claims in support of his protection visa application are summarised in [8] of the delegate’s decision which I set out below:

   8.The applicant’s detailed written claims are on the Department of Immigration and Border Protection (the Department) file CLD2015/23915045 from folios 40-43.  In summary, the applicant claims:

   •He is a Sri Lankan Tamil Hindu born on 5 January 1994 in Jaffna district, Northern Province, Sri Lanka. He fears returning to Sri Lanka.

   •In August 2011, while returning from a friend’s house from studying, at approximately 9pm, he was arrested by four Sri Lankan Army soldiers who questioned him if he knew who the ‘grease man’ was. He denied any knowledge of the ‘grease man’.

   •He was severely beaten by one of the Sri Lankan Army soldiers with a wooden pole, with bare hands and was kicked with boots. He was detained for approximately three hours and thereafter released.

   •The following day while studying at a friend’s house in Karainagar at approximately 10pm, two army soldiers came and interrogated them. They asked them what they were doing late at night. They eventually left the area.

   •Such incidents continued until it reached a point where he did not want to live in Sri Lanka anymore.

   •At that time, the army set up camp close to his house and as a young Tamil male, he feared he could be targeted at any time.

   •As his life was in danger, his mother made arrangements for him to leave Sri Lanka.

   •He believes he will be seriously harmed by the Sri Lankan army and Tamil paramilitary groups as he is a young Tamil male from the North.

   •The government fears LTTE resurgence, which is why the authorities persecute young Tamil males, particularly students. The authorities continue to target young Tamil males like him to this day.

   •He will be seriously harmed by the authorities for fleeing Sri Lanka illegally and claiming asylum in Australia because Sri Lankan authorities view Tamil asylum seekers to be LTTE supporters.

   •He would attract adverse attention no matter where in Sri Lanka he goes because he is a young Tamil male from the North, he does not speak Sinhala and does not have any family members outside of the Northern Province.

3. On 11 August 2016, the delegate made a decision to refuse to grant the applicant protection visa.  The delegate also found that the applicant was not an excluded fast-track-review applicant.  Accordingly, the decision was referred to the Immigration Assessment Authority (Authority). 

4. In a submission to the Authority, the applicant stated that he was willing to attend a hearing and also stated that he would obtain proof that he was a student leader at his school to give credibility to his student activities in Sri Lanka.  On 9 September 2016 the Authority received, by email from the applicant, a document from a college in Sri Lanka dated 9 September 2016 stating as follows: 

   To Whom It May Concern

   This is to certify that (applicant) was a student of our school and The President of our school Advanced level Students’ Union in 2011.  He had the leadership qualities and moral values.  So I wish him for his successful future. 

   This is given on the request of his parents. 

5. A week later, on 16 September 2016, the Authority made its decision affirming the decision of the delegate not to grant the applicant a protection visa.  In its statement of reasons, the Authority explained that it had neither obtained new information for itself, nor considered the certificate dated 9 September 2016: see [4]-[9] of the Authority’s reasons.  I will return to those paragraphs later in these reasons. 

6. In respect of the applicant’s claims for protection, the Authority did not accept that the applicant had come to the attention of the army in 2011 for questioning over the greasemen incidents or his claim to have been imputed by the army with a Liberation Tigers of Tamil Eelam (LTTE) profile.  It found that inconsistencies between the applicant’s account and available country information were significant enough for the Authority to doubt those claims. 

7. The Authority did not accept that the applicant was imputed with an LTTE profile in 2011 and 2012 and regularly questioned by the army.  However, it did accept that the army was present in his area at the time, that the applicant had to pass an army camp on the way to school each day, and that he was occasionally questioned by the army.

8. The Authority accepted that as a young Tamil male the applicant may have come to the attention of the army in 2011 and 2012, but due to the change in conditions in Sri Lanka, it was not satisfied that he faced a real chance of harm on return to Sri Lanka now as a young Tamil male from the north.  Further, it found that he did not face a risk of harm on the basis of having sought protection overseas and although he would come to the attention of the authorities under the Immigrants and Emigrants Act (Sri Lanka) on return, because he had departed Sri Lanka illegally, the applicant would neither face persecution nor significant harm as a consequence.  For those reasons, the Authority found that the applicant did not satisfy the criteria for the grant of a protection visa and affirmed the decision under review. 

Consideration

1. There are two grounds in the applicant’s amended application. 

First Ground – the Authority failed to find the applicant had a well-founded fear of persecution despite accepting his central claims of past adverse experience

1. The first ground is that the Authority had committed jurisdictional error, because it had accepted the applicant’s central claims of past adverse experience at the hands of the Sri Lankan security forces and yet found that he did not have a well-founded fear of persecution.  The applicant says that there is independent and reliable country information that circumstances that he feared in Sri Lanka have not materially changed. 

2. This ground suggests at one level, that there was only one reasonable decision which the Authority could have reached on the material before it; namely, the conclusion that the applicant satisfied the definition of a “refugee” within the meaning of the Act. If that were right, the Authority would have fallen into jurisdictional error similar to the conclusion arrived at by the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62. However, on a proper understanding of the ground that is not what is intended to be alleged. Rather, the applicant only seeks to assert that the Authority ought to have accepted that he was a refugee. That is an attack on the merits of the Authority’s decision and does not give rise to, or evoke any jurisdictional error.

3. I would add that it is not correct to say as is asserted in the ground, that the Authority accepted the central claims of past adverse experience at the hands of the Sri Lankan security forces.  As I have observed, the Authority rejected the applicant’s central claims which related to the attention of the army in respect of questioning over the greasemen incidents.  The Authority’s conclusions in that respect were based upon an analysis of the country information concerning the greasemen phenomenon which occurred for a short time in Sri Lanka, and an unfavourable comparison between those circumstances and  the claims made by the applicant.  For those reasons, the first ground is not made out. 

Second Ground – the Authority erred by not inviting the applicant to attend an interview, comment on or respond to adverse information

1. The second ground is that the Authority erred by not inviting the applicant to attend for an interview or providing him with an invitation to comment on or respond to adverse information.  The ground appears to be based upon an obligation that might arise in respect of the Administrative Appeals Tribunal (Tribunal) under s.360 or s.425 of the Act. There is no similar provision in pt.7AA of the Act, which is the part of the Act which governs the review of decisions by the Authority. Further, as s.473DB makes clear, the Authority is subject to the part required to consider the review material without interviewing the applicant.

2. As to an invitation to give information, an obligation does arise under s.473DE, which in some respects is similar to an obligation on the Tribunal under ss.359A and 424A, but is limited in this case to new information. There was no new information which could be the subject of s.473DE, and so there was no obligation under that provision. There was otherwise no common-law obligation on the Authority to invite the applicant to a hearing or to comment on adverse material in light of sub-s.473DA(1) and (2) of the Act. For that reason ground 2 in the application is not made out.

3. In his written submissions the applicant also argues that the Authority’s findings and/or reasons appear to be in the absence of evidence.  However, any reading of the Authority’s reasons suggests that that is not correct.  To the extent that the Authority did not accept the applicant’s claims, or made findings adverse to him, it relied upon and referred to information from sources such as the Department of Foreign Affairs and Trade and the United Nations High Commissioner for Refugees. 

4. The applicant also says in his written submissions that he has country information to convince the Court that failed asylum-seekers were detained and abused by Sri Lankan authorities but immediately concedes correctly that the Court has no power to take the information into account.  He suggests in light of that concession however, that if the Court sends the case back to the Authority, it can be provided to the new member when the Authority freshly looks at the case.  That may well be the case, but in light of the concession, which as I observed is correct, it gives rise to no jurisdictional error and may be left to one side. 

5. I return to the consideration by the Authority of the certificate provided by the applicant and set out [6] to [9] of the Authority’s reasons.

   6.The IAA must not consider any new information unless exceptional circumstances justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant's claims.

   7.The certificate is dated 9 September 2016 and on this basis it could not have been made available to the Minister as it was written after the delegate’s decision. However, the information it provides dates from the applicant’s time as a student at the college and in that regard there is no reason to believe that the applicant could not have obtained a certificate outlining this information earlier and provided this to the Minister. I note that the applicant had the benefit of representation to assist with his SHEV application.

   8.I accept that this certificate contains credible personal information about the applicant. However, I find that this information would not have affected the consideration of the applicant’s claims. The applicant’s attendance at this college is not in dispute. The applicant has not advanced any protection claims about his schooling, his study or any related activities as a student that would lead me to accept that this information would have affected the consideration of his claims.

   9.I am not satisfied that the information contained in this certificate could not have been obtained and provided to the Minister. I am not satisfied that the personal information contained in the certificate would have affected the consideration of the applicant's claims. Nor am I satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.

6. Here the Authority is addressing the question of whether it should consider the certificate in light of s.473DD of the Act. Section 473DD relevantly states:

   473DD Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

7. There appear to be two issues that arise in the consideration of the certificate. The first is that having accepted that the certificate contained credible personal information about the applicant, the Authority found that the information “would not have affected the consideration of the applicant’s claims”. The word “would” here is to be contrasted with s.473DD(2), in which the operative word is “may”. The question is first whether the Authority misunderstood the test posed by sub-s.473DD(2)(b)(ii) and secondly, if it did, whether that amounted to jurisdictional error.

8. I raised this issue with Counsel for the Minister at the hearing, and while he was able to provide a concise answer to the question, it is fair to say that he was not given a full opportunity to consider the issues that arose.  However, I accept one submission made by the Minister, namely that the information in the certificate and the certificate itself was of such a quality that the failure to consider it did not give rise to jurisdictional error. 

9. I will explain why that is so briefly in a moment, but first I would note that this conclusion means I will not consider the anterior question of whether there was a misunderstanding of s.473DD(2). The information in the certificate was as the Authority noted, concerned with the applicant’s schooling, his activities as a student and moral values and leadership qualities. The Minister contended the information about those matters is stated at a high level of generality, which does not, on its face, address any of the claims made by the applicant or indeed more generally his credibility.

10. While the analysis in this respect is similar to that found pertinent by Robertson J in the Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317, it may be noted here that the Court has the benefit of the Authority’s own thought processes concerning the relevance of the information. Those thoughts included that the attendance at college was not in dispute and that the applicant had not advanced any protection claims that accepting the material would have affected the consideration of his protection claims. In those circumstances the use of the word “would” in [8] instead of the word “may” does not give rise to any jurisdictional error.

11. The second issue that arises is the potential bifurcation by the Authority of the certificate and the information contained in it. The question is whether the Authority actually dealt with the certificate as distinct from the information, and if it did, whether that amounted to jurisdictional error. The question arises because in s.473DC, the term “new information” appears to relate to both documents as well as information, thus when the term “new information” is used in s.473DD, it may be arguable that the Authority must consider the application of that provision in respect of both the certificate itself and the information contained in it. That would be a highly technical outcome but I cannot exclude the possibility of it given the remarkable complexity of pt.7AA.

12. Nevertheless, even if the Authority had failed to consider the certificate separately from the information contained in it, essentially for the reasons I have given in respect of [8] of the Authority’s reasons, I do not consider there is any jurisdictional error. For that reason, while I acknowledge the Minister’s submission that the word “documents” in s.473DC(1) of the Act must have some content; in other words, must include the information contained within it, I do not need to determine that issue.

Conclusion

1. For those reasons, I am not satisfied that the way in which the Authority considered the certificate gave rise to any jurisdictional error.  I considered the balance of the Authority’s reasons and the way in which it conducted the review and can see no other error in it. 

2. The application will be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       18 December 2017