DEC17 v Minister for Immigration

[2018] FCCA 528

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 528

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – whether the Authority’s findings were illogical or unreasonable – whether the Authority failed to take into account all of the applicant’s claims – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant: DEC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2222 of 2017

Judgment of: Judge Street

Hearing date: 27 February 2018

Date of Last Submission: 27 February 2018

Delivered at: Sydney

Delivered on: 27 February 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr J McGovern
Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 18 December 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2222 of 2017

DEC17

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) (“of the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 19 June 2017 affirming the decision of the delegate not to grant the applicant Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 13 October 2012. The applicant was found to be a young Hindu male from the Batticaloa District in the Eastern Province of Sri Lanka. The applicant claimed to fear harm because he would be at risk of being harmed by the Sri Lankan authorities, including paramilitary groups such as the Karuna and Pillaiyan groups due to imputed political opinion for support of the Liberation Tigers of Tamil Eelam (LTTE), on the basis of his ethnicity, area of origin, and due to being questioned by the Sri Lankan Army about the LTTE involvement in 2003.

3. The applicant claimed to have left Sri Lanka in 2007 legally using his own passport to travel to Thailand. The applicant resided in Malaysia from 2008 and 2012 where he allegedly lost his passport and national ID card. On 29 February 2016, the applicant lodged an application for a Safe Haven Enterprise (subclass 790) visa. The applicant provided a statement in support dated 12 February 2016.

4. The delegate, on 11 November 2016, found the applicant failed to meet the criteria for the grant of a protection visa. The delegate, in the course of the delegate’s findings, expressly referred to the interview with the applicant on 25 May 2016 with the assistance of the interpreter. The delegate referred to the applicant being asked to speak about his life, including family, education, employment, travel and personal security. The delegate noted that key matters central to his claims were discussed and the factual basis for those claims. The delegate expressly records that the applicant was provided with an opportunity to explain and provide further details of his claims. The delegate also notes the applicant was provided with an opportunity to respond to various inconsistencies in his claims.

The Authority’s Decision

1. On 16 November 2016, the Authority wrote to the applicant identifying that the application for the protection visa had been referred to the Authority for review. The Authority’s letter explained 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 provide new information and submissions.

2. Submissions were provided to the Authority on behalf of the applicant by the applicant’s migration representative, which were received on 8 December 2016 by the Authority and the Authority took into account those submissions as identified in the Authority’s reasons. The Authority identified in its reasons the background to the visa application. The Authority referred to having regard to the material provided by the secretary under s 473CB of the Act. The Authority explained in relation to the submissions that to the extent that they contained argument in respect to the delegate’s findings and decision, the Authority did not consider it to be new information and have regard to the same. The Authority referred to an extract from the Truth and Justice Project and was not satisfied there were exceptional circumstances to justify considering that information. The Authority’s reasons expressly refer to the contents of that material and refer to both limbs of s 473DD of the Act.

3. The Authority also refers to taking into account new country information, being a Department of Foreign Affairs and Trade (“DFAT”) report published on 24 January 2017. The Authority was entitled to take that report into account without giving the applicant a further opportunity to comment or respond to the same, consistent with s 473DE(3)(a) of the Act. The Authority summarised the applicant’s claims and set out the relevant law.

4. The Authority referred to an alleged incident in 2003 where the applicant claims he was taken from the roadside at Batticaloa by army officers to a nearby camp and was questioned by them and members of the People’s Liberation Organisation of Tamil Eelam (“PLOTE”) about being a supporter of the LTTE. The applicant alleged that whilst he was held he was mistreated and following his release he received treatment at Batticaloa Hospital for bruising and swelling. The applicant stated he was detained at the camp for two to three hours and released due to his teachers, family and elders from the community causing a disturbance and protesting at his arrest.

5. The delegate, at the visa interview, raised with the applicant a number of inconsistencies in his testimony about that incident. The Authority referred to the applicant initially stating at the visa interview that he was taken to the army camp in a white van by members of the army. When it was raised with the applicant that army officers used their own vehicles rather than white vans, the applicant changed his testimony to state that the vehicle was a normal, ordinary van. The delegate then referred to the applicant’s statement which referred to him having been kidnapped by unknown persons in a white coloured van. The applicant explained that he had made reference to the white coloured van in 2008 because abductions in white vans were a common occurrence.

6. The Authority did not accept the applicant’s explanation for the inconsistency about a key aspect of his experience as being plausible or convincing. The Authority found the applicant’s preparedness to readily change his testimony during the interview when challenged by the delegate undermined his credibility. The Authority found the applicant has embellished aspects of his encounter with the army and suspected members of the People’s Liberation Organisation of Tamil Eelam (“PLOTE”) in order to bolster his claims for protection.

7. The Authority accepted, having regard to country information, that the applicant was taken for questioning by the army about supporting the LTTE, was mistreated and released a short time later. The Authority found, given his release without conditions or charge and in the absence of evidence to support any links with the LTTE by the applicant or his family members, that the Authority was satisfied that the applicant was not considered by the army to have any profile for LTTE involvement or support.

8. The Authority referred to the applicant claiming that the authorities continued to suspect him and came looking for him at his home. The Authority did not find this aspect of the applicant’s testimony plausible and had considerable doubt that the army would target the applicant or make serious threats to his safety when they had released him unconditionally earlier the same day. The Authority was not satisfied that members of the army and/or PLOTE members visited his family home later that evening demanding the applicant’s father hand him over to them and threatened to shoot the applicant on sight.

9. The Authority found it implausible that efforts would not have been made by the army or PLOTE to locate the applicant in other areas of Sri Lanka where he had relatives, such as Colombo, and where he applied for a passport prior on 24 May 2007 if they regard the applicant as being of adverse interest. The Authority was not satisfied that members of the PLOTE were involved in the initial questioning of the applicant in 2003 or held any interest in the applicant’s activities. The Authority found the applicant was not of any adverse interest to the army. The Authority was not satisfied that members of the army and/or the PLOTE visited the applicant’s father after the applicant had moved to Colombo or that they were responsible for phone calls to the applicant’s father seeking the applicant’s location.

10. The Authority referred to an alleged incident on 28 December 2007 in which it was alleged by the applicant that two armed men arrived late at night searching for the applicant saying that they would shoot the applicant on sight. The applicant claimed on the basis of that information that he went in hiding and made complaints to the United National Commissioner for Refugees (“UNHCR”) and International Committee of the Red Cross. The applicant also alleged his father made a statement about the incident dated 18 February 2008. A translation was provided in respect of that statement. The Authority also referred to a letter in support from a member of Parliament. The Authority gave little weight to the letter of Parliament and alleged endorsement of the complaint to the police on the statement. The Authority was however willing to accept that the document reflects that a complaint was made by the applicant’s father about an incident occurring at his home on 28 December 2007.

11. The Authority noted that the delegate had raised concern that the applicant’s account of the incident in his statement, which formed part of his visa application and statement made during the entry interview, were inconsistent with his father’s statement. It was in those circumstances the Authority considered the applicant had embellished his claims for protection by stating the two men came inside the house and searched for him, and indicating in his visa application that the men were from Karuna or Pillaiyan groups. The Authority was not satisfied the men who attended the applicant’s parents’ home were linked with the army or with any paramilitary groups such as the Karuna or Pillaiyan or that the men came into the house and searched for the applicant. The Authority was not satisfied that when the men attended the house they called out that the applicant was a friend and had a gift for him or that they threatened to shoot him on sight and fired a warning shot. The Authority made express reference in that regard to the inconsistencies between the applicant’s account and the father’s account to the police and the marked difference between the two.

12. The Authority accepted that the applicant’s visa and departure was facilitated by an agent, however, the Authority expressed considerable doubt that during this time when the war was still ongoing that had the applicant been considered to have been an LTTE supporter or sympathiser, he would have been stopped and questioned at the airport when presenting his passport. The Authority observed this was notwithstanding that the agent was providing assistance and some money had been paid to expedite the clearance process. The Authority took into account country information and found the applicant would not be of adverse interest to the army or paramilitary groups such as the Karuna or Pillaiyan on his return to Sri Lanka.

13. The Authority was satisfied the applicant does not hold a profile that would attract the adverse attention of the authorities on return to Sri Lanka including the PLOTE and paramilitary groups such as the Karuna or Pillaiyan groups. Taking into account the country information and the applicant’s circumstances, the Authority was not satisfied the applicant faced a real chance of serious harm from the Sri Lankan army, the PLOTE or paramilitary groups such as the Karuna and Pillaiyan groups for being a Hindu Tamil male originating from Batticaloa in the Eastern Province of Sri Lanka, or for being suspected and questioned about supporting the LTTE in 2003. The Authority accepted the applicant departed Sri Lanka legally and found the applicant would not be considered to have committed an offence. The Authority did however, take into account that the applicant would be returning as a failed asylum seeker.

14. Taking into account the applicant’s lack of profile for LTTE involvement or support and departure from the country lawfully on his own passport, the Authority did not consider the applicant would be targeted or subjected to processes on re‑entry in Sri Lanka that would be different from usual processes. The Authority was not satisfied, therefore, on the face of it that there was a chance of serious harm on the basis of being a returned asylum seeker. The Authority was not satisfied the applicant faced a real chance of serious harm now and in the reasonably foreseeable future and found the applicant failed to meet the criteria for the definition of a refugee in s 5H(1) of the Act. The Authority found the applicant didn’t meet the criteria under s 36(2)(a) of the Act and found that there are not substantial grounds for believing as a necessary and foreseeable consequence that should the applicant be removed 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 criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

15. The applicant was granted leave to rely upon an amended application that relevantly set out an observation about not having obtained a lawyer, being self‑represented and wanting to obtain a transcript. No such transcript has been put on before the Court. The applicant was given an opportunity pursuant to orders made by the Registrar of the Court to file an amended application, affidavit and submissions. The applicant has filed an amended application and submissions but no affidavit evidence.

The grounds of the amended application

1. The grounds under the particulars are as follows:

   Grounds of the application

   I have not retained a lawyer and barrister to represent me in this court yet.

   I am now self-represented.

   I need a copy of the Transcript of the Immigration interview CDs.

   I propose to seek further legal advices once I have obtained he Transcript.

   Particulars

   The IAA has no basis to have ‘considerable doubt that I would not have heard that the shot being fired’: 46 of the IAA’s decision.

   I need a new review with the IAA.

   I will provide further grounds of this judicial review and particulars of the grounds soon after a copy of the Transcript is obtained.

   I respectfully seek the co-operation of this court in this respect.

2. In relation to particular 1, referring to the inconsistency between the applicant’s version of the events involving the men attending the father’s home in December 2007 and the firing of a shot, and the applicant’s version, the applicant took issue with that finding by the Authority in paragraph 25. This finding by the Authority was open on the information before the Authority and it cannot be said to be illogical or unreasonable. Particular 1 does not make out any jurisdictional error and in substance invites this Court to engage in an impermissible merits review.

3. In relation to particular 2, the applicant’s assertion that he departed Sri Lanka unlawfully seeks to take issue with the adverse findings made by the Authority that he left Sri Lanka legally. The adverse finding by the Authority was open for the reasons given by the Authority and particular 2 merely reflects a disagreement with the adverse findings.

4. The remaining particulars do not identify any jurisdictional error. No jurisdictional error is made out by the amended application.

The grounds of the originating application

1. The originating application made a generalised assertion that the Authority’s decision was unfair and fraught with legal unreasonableness. The Authority’s reasons reflect an orthodox approach to the determination of the matter under Part 7AA of the Act. On the face of the material before the Court, the Authority complied with the requirements of procedural fairness by giving the applicant an opportunity to put on new information and submissions, and by the Authority in fact taking into account those submissions, subject to the statutory provisions including s 473DD of the Act. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review.

2. The applicant, under the generalised assertion, set out grounds which are as follows:

   Grounds of appeal and particulars

   1. There is evidence and country information on Sri Lanka before the IAA to substantiate that a Tamil in my similar circumstances is still risk of serious harm at the hands of Sri Lankan authorities in Sri Lanka, especially on my arrival, but the IAA has declined to exercise its jurisdiction on central refugee claims.

   2. The IAA’s decision/reasoning seems to be mere speculation and there is country information before the IAA that I am still at risk of harm on my arrival.

   3. The IAA declined its power to me when it reviewed my protection visa application because the IAA relied upon the DFAT Country Information Report – Sri Lanka 24 January 2017. This Report should have been put to me for my comments by way of Natural Justice.

   4. I need a new review with the IAA.

   5. I will provide further grounds of this judicial review and particulars of the grounds soon after a barrister’s opinion is obtained.

   6. I respectfully seek the co-operation of this court in this respect.

3. Ground 1 reflects a disagreement by the applicant with the country information taken into account by the Authority. The weight and cogency of country information was a matter for the Authority to determine and the applicant’s disagreement with the adverse findings does not identify any jurisdictional error.

4. In relation to ground 2, the Authority’s reasoning does not reflect mere speculation in respect of the adverse determinations made by the Authority dispositive of the applicant’s claims. Those adverse determinations were open for the reasons given by the Authority and cannot be said to lack an evident intelligible justification. In substance, ground 2 invites the Court to engage in an impermissible merits review and does not identify any jurisdictional error.

5. In relation to ground 3, the Authority was entitled to take into account more recent country information under s 473DE(3)(a) of the Act without giving the applicant an opportunity to comment or respond on the same. No jurisdictional error is made out by ground 3.

6. The other three grounds do not identify any jurisdictional error by the Authority.

Hearing before the Court

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 legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that in summary, this Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if satisfied that the Authority’s decision was unlawful or unfair the Court would set aside the decision and send it back for further review. The Court explained to the applicant if it was not satisfied the Authority’s decision was unlawful or unfair the applicant’s amended application would be dismissed with costs. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

1. From the bar table, the applicant sought to take issue with the adverse findings of the Authority in relation to whether the applicant had given inconsistent evidence in respect of having heard the firing of the gun. The applicant also took issue with the adverse finding in relation to his legal departure and referring to bribes being paid to get through. The applicant referred to other people leaving Sri Lanka and paying bribes. The applicant maintained that he was threatened and that his life would be in danger if he was to be returned to Sri Lanka.

2. The applicant referred to having left Sri Lanka about 10 years ago and having resided in other countries before deciding to come to Australia. The applicant referred to his belief that he was entitled to come to Australia and that he was entitled to be treated as a refugee and was hopeful for being able to remain safely in Australia. The applicant maintained his life would be in danger if he was returned.

3. The applicant also sought to explain the inconsistencies found by the Authority. The applicant’s submissions from the bar table in substance invited this Court to engage in an impermissible merits review. This Court does not have power to review the merits. This Court has no power to grant relief on compassionate grounds. Nothing said by the applicant from the bar table identified any jurisdictional error.

Applicant’s submissions

1. The applicant’s submissions also purported to summarise what are the grounds and particulars:

   Grounds:

   1. IAA erred in not being satisfied the applicant will be a risk of serious harm now or in the reasonably foreseeable future if returned to Sri Lanka.

   2. IAA erred in finding the Applicant does not meet S 5 H(1) or S 36(2)(a) of the Migration Act

   3. IAA erred in not being satisfied there is a real chance the applicant would face harm on return to SL as a failed asylum seekers, now or in the reasonably foreseeable future, or that we face a real chance of persecution now or in the reasonably foreseeable future,

   4. IAA erred in finding the Applicant does not have a well-founded fear of persecution within the meaning of S 5J;

   5. IAA erred in finding there is not a real chance of harm to the applicant now or in the reasonably foreseeable future, for any LTTE links, for any imputed political opinion, as an ethnic Tamil from the East of Sri Lanka, as a returned Tamil asylum seekers of a combination of these if returned to Sri Lanka.

   6. IAA erred in finding the Applicant does not meet S 36(2)(aa) of the Migration Act

   7. IAA erred in affirming the Delegate’s decision not to grant the applicant a protection visa

   8. IAA erred in not granting the applicant a protection visa, such errors amounting to errors in law.

   Particulars

   1. The IAA has doubted in Paragraph 25 of the IAA’s decision and reasons that I would not have hear a shot being fired. The IAA has no basis to leave a considerable doubt that I would not have heard a shot being fired.

   2. The IAA has given greater importance to one piece of my claims that I was not stopped and questioned at the Sri Lankan airport when presenting my passport.

   3. The IAA has filed to take into account that the agent was providing assistance and some money to expedite the airport clearance process: Paragraph 29 of the IAA’s decision and reasons.

   4. On what basis and evidence has the IAA come to the conclusion that the pro-government militant groups including Karuna and Pilliyan groups are no longer operative in Sri Lanka against their opponents: Paragraph 32 of the IAA’s decision and reasons.

   5. I understand that this court review is not a merit review and it cannot admit any new evidence but I have a good case on the facts before the IAA.

   6. Dear Honorable Judge, please show mercy and compassion on me as I believe that the IAA’s decision is not lawful, is not fair and is not valid.

2. Grounds 1 to 8 reflect a disagreement with the adverse findings by the Authority. The disagreement identified in grounds 1 to 8 does not identify any jurisdictional error and in substance invites this Court to engage in an impermissible merits review. No jurisdictional error is made out by grounds 1 to 8 of the written submissions.

3. In relation to the particulars, the applicant repeats the disagreement in relation to the adverse finding in paragraph 25. For the reasons already given, the adverse reasoning of the Authority in respect of the inconsistency was open for the reasons given by the Authority.

4. In relation to particular 2, the Authority has taken into account the applicant’s evidence in respect of his departure from Sri Lanka and it was open to the Authority to take that into account in determining the applicant’s claims. The weight to be given to the evidence was a matter for the Authority. No jurisdictional error is made out by particular 2.

5. In relation to particular 3, the Authority did not fail to take into account the applicant’s claims concerning the involvement of an agent but found the applicant’s ability at that time to leave with the war going on supported the adverse findings made by the Authority. Those findings were open to the Authority and reasonable on the information before the Authority. No jurisdictional error is made out by particular 3.

6. In relation to particular 4, the applicant disagrees with the adverse finding by the Authority in respect of country information. It was open, logical and reasonable for the Authority to make the adverse findings identified in the Authority’s reasons in respect of the pro‑government military and the country information. No jurisdictional error is made out by particular 4.

7. Particulars 5 and 6 do not make out any jurisdictional error. The applicant’s written submissions and originating application fail to make out any jurisdictional error.

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

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 April 2018