DDJ16 v Minister for Immigration

[2019] FCCA 3559

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDJ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3559

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority did not comply with the relevant law – whether the Authority’s decision was legally unreasonable – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: DDJ16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2894 of 2016

Judgment of: Judge Street

Hearing date: 9 December 2019

Date of Last Submission: 9 December 2019

Delivered at: Sydney

Delivered on: 9 December 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr T Hillyard
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 9 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2894 of 2016

DDJ16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 pt.7AA of the Act made on 22 September 2016 affirming the decision of a delegate of the first respondent (“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. On 17 August 2020, the applicant arrived in Australia as an unauthorised maritime arrival.

3. On 20 January 2016, the applicant lodged an application for a Safe Haven Enterprise visa. The applicant claimed to fear harm by reason of being a Tamil from a particular district in the Eastern Province and his association with the Tamil Makkal Viduthalai Pulikal (“TMVP”) political party.

4. The applicant claimed that he worked as a van driver between 2008 and 2010 for the Chief Minister of the Eastern Provincial Council. The applicant claimed that he undertook work for the TMVP as a driver during the election campaigns in 2010 and 2012. The applicant claimed he received a threatening phone call in 2012. The applicant also claimed that unknown armed men came to his house looking for him and threatened him in relation to his work with the TMVP in 2012. The applicant claimed that he was targeted by members of the Karuna Group. The applicant also claimed that he feared harm by reason of his brother having been kidnapped during another election campaign in 2015.

5. On 12 July 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

6. On 13 July 2016, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction which provided the application an opportunity to put on new information and submissions.

7. The Authority in its reasons identified the background to the applicant’s application for a Safe Haven Enterprise visa. The Authority had regard to the material referred by the Secretary under s.473CB of the Act.

8. The Authority identified that the United States Department of State Country Report on Human Rights Practices in Sri Lanka for 2015 dated 13 April 2016 was the more recent version of the report that had been relied upon by the Delegate. The Authority was satisfied that there were exceptional circumstances to justify considering this new information.

9. Under s.473DE(3)(a) of the Act, there is no obligation for the Authority to give the applicant an opportunity to respond to the new country information.

10. The Authority summarised the applicant’s claims. The Authority set out the relevant law, including in a paginated attachment forming part of its decision.

11. Taking into account country information, the Authority accepted that the applicant was threated on two occasions in 2012 as a result of his work for the TMVP. The Authority also accepted it was plausible that the threats were from people associated with the Karuna Group.

12. The Authority referred to the applicant’s claims relating to his brother being kidnapped and that his brother had been working for the TMVP. The Authority identified that there was not enough information before it to satisfy the Authority that the attempted abduction was done by the Karuna Group or was in connection with the brother’s alleged work as a driver for the TMVP or was the result of the applicant not heeding to their earlier warnings.

13. The Authority referred to country information in relation to the Karuna Group being unable to develop a political base in the post-war period in Batticaloa and no party having taken any interest in giving the Karuna Group a seat on the National list. The Authority did not accept the applicant’s claim that the Karuna Group could come to power in another election as this was regarded as speculation and not supported by the country information.

14. The Authority did not accept that the brother’s abduction in 2015 was for reasons of the applicant’s support given to the TMVP. The Authority, taking into the account the applicant’s low profile, was not satisfied that there is a real chance the Karuna Group maintained an interest in harming the applicant because of his work and support for the TMVP as a driver during the elections in 2010 and 2012.

15. The Authority referred to the applicant’s submission that the applicant's motivation to seek a government job will probably continue and he will likely seek to drive vehicles again during future elections. The Authority found that this was inconsistent with the applicant’s own evidence given during the Safe Haven Enterprise visa interview where he said that he could find another job rather than work as a driver for a political party. The Authority also referred to the applicant not claiming that he will seek government employment on return to Sri Lanka or that he will continue to do so by driving for the TMVP. The Authority was not satisfied that there is a real chance the applicant will continue to seek government employment by working for the TMVP as a driver on return to Sri Lanka.

16. The Authority referred to the applicant’s claim that did not have any previous interest in politics. The Authority was not satisfied that the applicant was a TMVP supporter. The Authority was not satisfied that there is a real chance the applicant will support the TMVP on return to Sri Lanka.

17. The Authority was not satisfied that there is a real chance the applicant would face harm from the Karuna Group or any other person or organisation because he previously worked for the TMVP as a driver and he was imputed as being a TMVP supporter.

18. The Authority referred to the applicant being a young Tamil male from the Eastern Province. The Authority accepted that the applicant was never involved with or supported the Liberation Tigers of Tamil Eelam (“LTTE”) and nor did his family. The Authority referred to country information. The Authority found that the security situation has greatly improved since the end of the civil conflict and that the monitoring and harassment of Tamils overall has decreased. The Authority referred to the applicant’s particular circumstances and that the applicant and those in his family were never associated with or perceived to have an association with the LTTE. In these circumstances, the Authority was not satisfied that young Tamil males from the East, on that basis alone, are imputed to be LTTE members or sympathisers by the Sri Lankan authorities.

19. The Authority was not satisfied that the applicant would face a real chance of discrimination or other harm on the basis of his Tamil ethnicity. Therefore, the Authority was not satisfied that the applicant would face a real chance of serious harm on the basis of being a young Tamil male from the Eastern Province.

20. The Authority referred to the applicant being a failed asylum seeker. The Authority was not satisfied that the applicant fits within the profiles identified in the country information as the applicant had no actual perceived links to the LTTE, nor had his family ever been accused or suspected of being a supporter or a member of the LTTE. In these circumstances, the Authority was not satisfied that the applicant would be arrested on return to Sri Lanka or his home area on this basis.

21. The Authority was not satisfied that the applicant would be deemed to be viewed as a traitor or will undergo further minute checks or be perceived to be an LTTE member or sympathiser for having sought asylum abroad and/or for being a young Tamil from the Eastern Province.

22. The Authority accepted that the applicant may be charged with an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka) for departing Sri Lanka illegally. The Authority was not satisfied that the applicant faced a real chance of serious harm whilst being detained and questioned by the authorities on return to Sri Lanka. The Authority was satisfied that being questioned, fined and detained for a short period does not cumulatively rise to the level of serious harm.

23. The Authority found that the Immigrants and Emigrants Act 1949 (Sri Lanka) applies to all Sri Lankans and does not apply in a discriminatory manner. Therefore, the Authority was not satisfied that the loss of liberty the applicant may endure for a few days on return to Sri Lanka amounts to persecution under the meaning of s.5J(4) of the Act.

24. The Authority considered the applicant’s claims cumulatively. The Authority considered the applicant’s profile as a young Tamil male from Batticaloa who has previously been threatened by the Karuna Group because of his work for the TMVP and was imputed to be a supporter of the TMVP who left Sri Lanka illegally and will be returning to Sri Lanka as a failed asylum seeker and found that the applicant did not face a real chance of serious harm.

25. The Authority found that the applicant did not meet the definition of “refugee” in s.5H(1) of the Act. Accordingly, the Authority found that the applicant did not satisfy the criteria is s.36(2)(a) of the Act.

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

27. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 24 October 2010.

2. On 23 February 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, no submissions were put by the applicant. The Court informed the applicant that, if he put no submissions, as the first respondent’s submissions were the written submissions which the applicant said he had read, the Court would not invite the first respondent to put further submissions. The applicant confirmed that he did not wish to put submissions. When the first respondent confirmed that it wished to rely upon its written submissions, the applicant confirmed that he did not wish to put submissions.

Ground in the Application

1. The ground in the application as follows:

   1. The Immigration Authority Assessor relied on information that was not put to the applicant for comment.

   Particulars

   a) The decision was made without interviewing the applicant.

   b) At 14, the Assessor relied on information namely “UNP distraught over ward demarcation” (footnote 9) that was not placed before the applicant in the interview conducted by the Department as part of the decision taken on 12 July 2016 to refuse the applicant's application for a Safe Haven Enterprise Visa.

2. The review under pt.7AA of the Act is identified under s.473BA of the Act as intended to be one where the Authority does not hold hearings and is required to review the decision on the papers that are provided to it subject to the provisions of the part. Section 473DA of the Act identifies that, subject to certain provisions, the division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. Under s.473DB of the Act, subject to the provisions of the part, the Authority is required to conduct the review without accepting or requesting new information and without interviewing the referred applicant.

3. Section 473DC of the Act provides that the Authority may get new information. The requirements of s.473DD of the Act must be met before the Authority considers any new information. The requirements of s.473DE of the Act, in relation to new information obtained by Authority, has no application to country information under sub-s.473DE(3)(a) of the Act.

4. Taking into account the scheme of the Act and the opportunity that was given to the applicant by the Authority by the letter dated 13 July 2016 to put on new information and submissions, the absence of an express consideration by the Authority to exercise the powers under s.473DC of the Act cannot be said to lack an evident and intelligible justification.

5. That evident justification is the opportunity the applicant was given to put on new information and submissions in circumstances where the applicant had been found by the Delegate not to meet the criteria for the grant of a Safe Haven Enterprise visa and the practice direction invited the applicant to put on submissions engaging with the Delegate’s decision.

6. There is no new issue of a claim which has been identified that would require the Authority to give express consideration to the powers under s.473DC of the Act where the applicant submits that he was not the subject of an interview.

7. In the circumstances, the statutory scheme under pt.7AA of the Act does not give rise to any legal unreasonableness in the circumstances where the applicant had an opportunity to put on new information and submissions. The applicant’s observation that he did not have an interview with the Authority does not identify any jurisdictional error in this case.

8. The only information identified by the applicant as having been information that should have been put to him is country information falling within s.473DE(3)(a) of the Act. That provision means that there is no obligation upon the Authority to comply with the requirements of s.473DE(1) of the Act. Further, it is apparent that the earlier version of the same type of country information report had been relied upon by the Delegate and the Authority was taking into account updated country information. The taking into account of that updated country information did not, in the circumstances of the present case, give rise to any legal unreasonableness in the absence of an express consideration of the powers under s.473DC of the Act given the opportunity that the applicant had been given by the letter dated 12 July 2016 to put on new information and submissions.

9. No jurisdictional error as alleged in ground 1 is made out.

10. The applicant put no other submissions to identify any other alleged jurisdictional error.

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

I certify that the preceding forty-two (42) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 9 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  5 March 2020