DDM17 v Minister for Immigration
[2018] FCCA 3542
•3 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3542 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to exercise its powers under s 473DC of the Act – whether the Authority failed to exercise its discretion to get new information – whether the Authority failed to consider the applicant’s claims or integers of the applicant’s claims – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 476 |
| Applicant: | DDM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 374 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 3 December 2018 |
| Date of Last Submission: | 3 December 2018 |
| Delivered at: | Perth |
| Delivered on: | 3 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Scott |
| Solicitors for the Applicant: | Westside Legal |
| Counsel for the Respondents: | Mr P Hannan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.
DATE OF ORDER: 3 December 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 374 of 2017
| DDM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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 Part 7AA of the Act made on 15 June 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil from the Trincomalee District, Eastern Province, who arrived in Australia on 3 November 2012.
The applicant claimed to fear harm based on his Tamil ethnicity, his former place of residence, his imputed Liberation Tigers of Tami Eelam (“LTTE”) involvement and connections, and/or his imputed or actual wealth, or that of his family. On 9 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
On 11 November 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did not do so.
The Authority in its reasons identified the background to the visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act and took into account country information. The Authority summarised the applicant’s claims and referred to the ‘Statement of Protection Claims’ that had been signed by the applicant on 22 March 2016 in support of his protection claims.
The Authority found the applicant’s evidence that he came to the adverse attention of various armed groups, such as the Criminal Investigation Department (“CID”), the Karuna Group, and the Sri Lankan Army to be unconvincing. The Authority identified eight matters of inconsistencies which it summarised in respect to the applicant’s evidence. Those inconsistencies also included a reference to the applicant’s claims of twice being sexually assaulted when he was detained, but not mentioning this in his entry interview. The Authority referred to the applicant asserting at the entry interview, he was scared to mention the sexual abuse because he had concerns in relation to the confidentiality of that information.
The Authority identified that the applicant had made statements in his previous interviews that were inconsistent. The Authority expressly referred to having listened to the audio of the entry interview. The Authority took into account the applicant’s explanation in relation to shame and/or lack of understanding in respect of sexual abuse, but was not persuaded that those reasons adequately account for the other discrepancies in the applicant’s evidence which the Authority felt were not insignificant.
The Authority concluded that the applicant was not recalling a genuine experience in relation to the events between 2010 and 2012. The Authority noted that the applicant had travelled between Sri Lanka and India on business trips 17 times between 2011 and 2012. The Authority was not satisfied the applicant would have been able to obtain a passport and be free to travel in and out of Sri Lanka without difficulty as he did, if he was of concern to the Sri Lankan authorities on account of imputed LTTE links.
The Authority did not accept that between 2010 and 2012 the applicant was arrested and detained by the CID, the Sri Lankan Army or the Karuna Group, or that he or a friend was sexually assaulted, that there had been people who were personally known to him who were killed, that he was living in hiding, or that he was physically harmed by any of the Sri Lankan authorities due to any imputed LTTE links or for any other reason. The Authority noted that the applicant informed the delegate that he had no prior involvement with the LTTE and on the evidence the Authority was not satisfied the applicant was a person with an adverse profile on account of any imputed LTTE links. The Authority rejected the applicant’s associated claims that after his arrival in the Australia members of his family were approached by the CID, or that his father was told by an MP that he cannot return to Sri Lanka on account of his profile with the CID.
The Authority was not satisfied the applicant is at risk of coming to the adverse attention of the authorities on his return due to scarring. The Authority conclude that the applicant is not a person that faces a real chance of serious harm by virtue of his Tamil ethnicity, his former place of residence, his economic status, on account of actual or imputed LTTE connections, or for any other reason claimed.
The Authority referred to the applicant’s illegal departure. The Authority was not satisfied the applicant faces a real chance of serious harm due to be a failed asylum seeker from Australia, or his scarring, now or in the reasonably foreseeable future, if he returns to Sri Lanka.
The Authority was not satisfied that the prison conditions to which the applicant may be subject for his illegal departure may themselves constitute serious harm as defined by the Act. The Authority was not satisfied the applicant would face a real chance of serious harm during a brief period of time spent in detention. The Authority found there is no real chance of the applicant facing imprisonment.
The Authority found the Immigrants and Emigrants Act 1949 (Sri Lanka) are laws that apply to all Sri Lankans and are not applied in a discriminatory manner. The Authority was satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purposes of the Act. The Authority found the applicant does not face a real chance of serious harm from the Sri Lankan authorities due to his illegal departure, travel to Australia or for any other reason.
The Authority found the applicant does not have a well-founded fear of persecution under the meaning of s 5J of the Act.
The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant failed to meet the criterion in s 36(2)(a) of the Act.
The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found the applicant does not meet the criterion in s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds in the amended application as follows:
1A. The Second Respondent (IAA) failed to get new information from the Applicant pursuant to s 473DC of the Migration Act.
Particulars
a. On or about 30 March 2016, the Applicant lodged an application for a Safe Haven Enterprise (subclass 790) visa (the SHEV Application) with the Department of Immigration and Border Protection (Department).
b. On Wednesday 20 July 2016, the Applicant was interviewed by the Department in relation to his SHEV Application (SHEV Interview).
c. The SHEV Interview was translated from the Tamil language to English by an interpreter with the TIS identity number 5199 (Interpreter).
d. The SHEV Interview contained a claim by the Applicant that he was detailed in 2010 for his 'sexual orientation problem' or 'sexual preference'.
e. Later in the SHEV Interview the Interpreter attempted to refine his earlier translation concerning the Applicant's 'sexual orientation problem' and translated that the Applicant said he was not transgender or gay.
f. The delegate of the Department took no steps to clarify the nature of the Applicant's claims.
g. The IAA did not consider whether to exercise its discretion to get new information from the Applicant as to whether he was making a claim on the basis of his sexual orientation.
h. The IAA knew, or should be taken to have known, that the Applicant was likely to have information regarding his sexual orientation.
i. In declining to consider whether it should have exercised its discretion to get information from the Applicant in relation to his claim based on his sexual orientation the Authority acted unreasonably.
j. The IAA's error or errors in this regard constituted jurisdictional error.
1B. Further and in the alternative, the Second Respondent (IAA) failed to consider a claim by the Applicant made ' squarely' before it.
Particulars
a. The Applicant refers to and repeats particulars a - f above.
b. The IAA did not consider whether the Applicant had made a claim for protection based on his sexual orientation or preference.
c. The IAA knew, or should be taken to have known, that the Applicant had made a claim regarding his sexual orientation or preference the nature of which could be misunderstood or misconstrued.
d. The IAA failed to consider a claim squarely made.
e. The IAA's error or errors in this regard constituted jurisdictional error.
Ground 1A
In relation to ground 1A, Ms Scott counsel on behalf of the applicant, contended that the Authority, having listened to the interview, should have identified uncertainty as to whether the applicant was or was not advancing a claim of sexual orientation. Ms Scott contended that in the circumstances it was legally unreasonable of the Authority not to exercise its powers under s 473DC of the Act to invite the applicant to attend an interview or to provide further information.
Ms Scott in particular focused upon a part of the transcript of the interview at page 5. That interview was one purporting to record the problems the applicant faced having been detained in 2010. There is a reference in that regard between lines 20 to 33 to sexual orientation and sexual preference. It is clear from the interpreter that the applicant was contending in the context of the incident that he was concerned he would be suspected to have links with the LTTE. Nothing in the passage on page 5 between 20 to 30 or 30 to 43 identifies a claim that the applicant feared harm on the grounds of sexual orientation or sexual preference.
Further in the interview, on page 11, if there had been the slightest uncertainty, it was made crystal clear that the applicant was referring to the incident in which he had been the subject of rape and sexual assault and that the applicant was not advancing that he was transgender or gay. There was no claim as to sexual orientation or sexual preference that fairly arose on the listening to the recording that the Authority engaged in by reason of which the Authority should have exercised its powers under s 473DC of the Act.
No submissions had been advanced to the Authority or new information provided by the applicant when given the opportunity to do so. Of more significance, it is apparent that the Authority listened to the recording and in light of the listening to the interview and taking into account the transcript before this Court, it is not apparent that any claim was being advanced by the applicant that he feared harm on the basis of his sexual orientation or his sexual preference. There was no issue or new matter in respect of which it could be said it was legally unreasonable of the Authority to fail to consider its powers under s 473DC of the Act. Accordingly, no jurisdictional errors alleged in ground 1A is made out.
Ground 1B
In relation to ground 1B, this is the reciprocal in essence of the argument advanced in relation to ground 1A, albeit ground 1A was founded on uncertainty. In relation to ground 1B, for the reasons I have already given, it is apparent that no claim was advanced that the applicant feared harm based on sexual orientation or sexual preference. A fair reading of the material does not support any such claim arising before the Authority. The transcript of the interview does not support any such claim arising before the Authority.
Accordingly, there was no failure to consider an integer of the applicant’s claim or the applicant’s claim as alleged in ground 1B. There was no such claim. No jurisdictional error alleged in ground 1B is made out.
Conclusion
Accordingly, the amended 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: 21 December 2018
0
2