Dez16 v Minister for Immigration
[2018] FCCA 1317
•22 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEZ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1317 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority considered all the applicant’s claims – whether the Immigration Assessment Authority considered the applicant’s claims cumulatively – whether the Immigration Assessment Authority was obliged to consider the Procedural Advice Manual Guidelines – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 473BA, 473BC, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 474, 476, 499 Migration Regulations 1994 (Cth), reg.2.01, sch.1 Minister for Immigration and Border Protection (Cth), Ministerial Direction [No.56] - Consideration of Protection Visa applications, 22 June 2013 Minister for Immigration and Border Protection (Cth), Procedural Advice Manual 3 |
| Cases Cited: Treaties: Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art.1A |
| Applicant: | DEZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2943 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 22 May 2018 |
| Date of Last Submission: | 22 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2018 |
REPRESENTATION
| The Applicant appeared in person, with the assistance of a Tamil interpreter |
| Solicitors for the Respondents: | Mr Andrew Keevers (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2943 of 2016
| DEZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This is an application for judicial review of a decision of the Immigration Assessment Authority dated 28 September 2016 (“the Authority”), dismissing an application for review by the Authority of a decision of a delegate of the first respondent (“the Delegate”) made on 20 July 2016 refusing the applicant a Safe Haven Enterprise (Subclass 790) visa (“SHEV”).
Background
The background of this matter and of the Authority’s decision are accurately summarised in paragraphs 2 to 19 of first respondent’s submissions as follows:
“Background
2. The applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 18 November 2012 (Court Book (CB) 26). On 6 January 2016, the applicant applied for a SHEV (CB 8-46). The applicant’s protection claims were set out in a statement attached to the SHEV application (CB 56-58). The applicant claimed:
(a) From 2004 to 2005, he came to know a number of Liberation Tigers of Tamil Eelam (LTTE) cadres who were attached to the intelligence wing of the LTTE, and he assisted the LTTE by transporting cadres and goods in the area;
(b) After the situation deteriorated, he left Sri Lanka to work in Saudi Arabia;
(c) He obtained a passport on the basis of altered documents including a birth certificate with an altered year of birth as he was underage at the time;
(d) He returned from Saudi Arabia in 2009 and began to support the Tamil National Alliance (TNA) including driving a van for the TNA and supporting two of the TNA’s candidates prior to the 2012 elections;
(e) During the campaign, he was threatened by members of the Karuna group (TMVP) for supporting the TNA; and
(f) The authorities would question him if he were to return to Sri Lanka as it would be necessary for him to present his genuine birth certificate, and he could face imprisonment as a result.
3. At the interview with the delegate on 24 May 2016, the applicant also claimed that his father had been detained at Poosa camp in 2004 (CB 90). The applicant’s representative claimed that the applicant also feared harm on the basis that he would be returning as a failed asylum seeker, as a result of the Department’s data breach, and because he breached Sri Lankan and Saudi immigration laws (CB 98).
4. On 20 July 2016, the delegate refused to grant the applicant the SHEV (CB 88-117).
5. On 21 July 2016, the applicant’s matter was referred to the Authority (CB 118).
6. On 28 September 2016, the Authority affirmed the decision under review (CB 199-218).
Authority’s decision
7. The Authority had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (Cth) (Act) (CB 200 [2]). No further information was received or obtained by the Authority (CB 200 [2]).
8. On the basis of the applicant’s failure to raise the claims in his written application or oral evidence at the SHEV interview, the Authority found that the applicant’s claims that he and his father had been arrested or had problems with the authorities or that his brother-in-law had been killed for his LTTE involvement were not credible (CB 202 [14]). The Authority therefore rejected these claims and did not accept that any additional profile arose from those events or that any future risk of harm existed in relation to those claims (CB 202 [14]).
9. The Authority accepted that the applicant provided some low level transport activities for the LTTE (CB 203-204 [16], [19]). However, on the basis of the country information before it, the Authority was not satisfied that the applicant’s low level and infrequent support for the LTTE in 2004-2005 would give rise to a profile that would put him at risk of harm from the authorities (CB 203-204 [16], [17]). The Authority noted that it was significant in this regard that the applicant had travelled in and out of Sri Lanka, was able to obtain a new passport in 2010 and had no issues with the authorities prior to leaving in 2012 (CB 203 [17]).
10. The Authority also found that country information did not indicate that simply being a Tamil from a former LTTE-controlled area would put a person at risk (CB 203 [18]). The Authority concluded that neither the applicant nor anyone in his family possessed any actual or imputed political opinion in support of the LTTE or any profile with an actual or perceived LTTE connection that would result in the applicant facing a real chance of harm (CB 204 [19]).
11. On the basis of inconsistencies in the applicant’s evidence and his limited knowledge of the TNA, the Authority found that he did not have a political opinion in support of the TNA and did not assist TNA candidates in the 2012 elections as claimed (CB 205 [31]). The Authority found that the letters from the candidates provided by the applicant in support of his visa application were contradicted by his own written and oral evidence and therefore they could not be relied upon (CB 205 [30]). The Authority rejected that the applicant was ever threatened by the TVMP or anyone else in connection with his participation in the 2012 elections (CB 205 [31]).
12. For these reasons, the Authority did not accept that the applicant would become politically active on return to Sri Lanka or that he would be harmed on return for these reasons (CB 206 [32]-[33]).
13. The Authority accepted that the TMVP may have known of the applicant’s earlier LTTE assistance but did not accept that the low level support briefly provided in 2004-2005 gave him any profile that would lead him to be targeted by the TMVP or any other group (CB 206 [36]).
14. On the basis of the country information and the absence of any profile, the Authority was not satisfied that the applicant faced a real chance of serious harm because of his Tamil ethnicity, for being a Tamil from the East of Sri Lanka or for any other reason related to those characteristics (CB 208 [43]). The Authority accepted that the applicant might encounter some societal discrimination and monitoring as he lived in the East but was not satisfied that this would, separately or cumulatively, constitute serious harm (CB 207 [41]). The Authority was not satisfied that there was a real chance that the applicant would be charged or detained under the Sri Lankan Prevention of Terrorism Act (PTA) in the absence of any political or other profile on the part of the applicant (CB 207-208 [42]).
15. The Authority did not accept that the applicant would be linked to the LTTE or that his low-level LTTE support would give rise to any profile that would put him at additional risk as a returnee or failed asylum seeker (CB 208 [46]). It found that the authorities would determine that the applicant had no relevant adverse profile and therefore he would not be subjected to any mistreatment on return to Sri Lanka as a failed asylum seeker (CB 209 [48]-[49]).
16. The Authority accepted that the applicant left Sri Lanka in breach of the Immigrants & Emigrants Act (I&E Act) but found that any resulting fine, or the requirement for bail, surety or a guarantee would not constitute serious harm (CB 210 [52]). Acknowledging that there was a possibility that the applicant might be detained for several days while awaiting an appearance before a magistrate, the Authority accepted that prison conditions were poor, but found that this was due to economic reasons and was not the result of any “systematic or deliberate conduct” (CB 210 [53]). Further, the Authority was not satisfied that any brief detention would constitute serious harm as defined (CB 210 [53]).
17. Having considered the submissions and country information before it, the Authority did not accept that there was a real chance that the applicant would be charged, convicted or jailed on the basis of any forged or fraudulent travel document (CB 211 [60]). On a separate and independent basis, the Authority noted that the provisions and penalties of the Penal Code and I&E Act were laws of general application that were applied in a non-discriminatory manner, and that any harm would therefore not amount to persecution under s 5J(1) of the Act (CB 212 [61]).
18. Relying on its anterior findings, the Authority was not satisfied that the applicant faced a real risk of significant harm on return to Sri Lanka (CB 213 [72]). The Authority found that any discrimination, questioning or monitoring that might occur to the applicant as a Tamil on return would not amount to the death penalty, arbitrary deprivation of life or torture (CB 213 [68]). Further, the Authority found that the information before it did not indicate that such conduct would involve the intentional infliction of pain or suffering or extreme humiliation (CB 213 [68]). While it accepted that Tamils may continue to face some societal discrimination, questioning and monitoring in Sri Lanka, it was not satisfied that this would constitute significant harm (CB 213 [68]).
19. The Authority did not accept that any brief detention, questioning, fine or other penalty would amount to significant harm as defined under the Act as the penalties did not constitute the death penalty, deprivation of life or torture and did not involve the intentional infliction of pain or suffering or extreme humiliation (CB 213 [70]). While it accepted that the applicant might experience poor prison conditions during a brief detention, it found that there was no intention to inflict pain or suffering or extreme humiliation (CB 213 [71]). The Authority therefore found that any process or penalty that the applicant may face would not constitute significant harm, whether considered singularly or cumulatively (CB 213 [71]).”
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a SHEV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.
…”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:
“Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
Section 473DD of the Act provides as follows:
“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.”
The proceeding before this Court
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter.
The applicant confirmed that he had attended a directions hearing before a Registrar of this Court on 2 March 2017. On that occasion the applicant was given leave to file and serve an amended application, and directed to file and serve any further evidence and submissions in support of his application.
At the directions hearing, the matter was set down for final hearing on 22 May 2018, before me.
Before inviting the applicant to make submissions, I explained to the applicant that the role of this Court is very different to that of the Authority, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Authority was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Authority, unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake.
The applicant confirmed that he had not filed any documents either in accordance with the directions made on 2 March 2017 or otherwise, and that he had no further documents to provide to the Court this morning.
The applicant confirmed that he relied on the grounds of his initiating application filed on 26 October 2016, which are as follows:
“1. The tribunal has failed to consider the full integers of the claims of the applicants
a. The IAA has failed to consider the fact that the applicant is liable to extortion as a person from overseas
b. The IAA has failed to consider that the cumulative claims of the applicant
2. The IAA has failed to consider PAM3 guidelines.”
(Errors in original)
Each of the grounds was interpreted for the applicant, and he was invited to say whatever he wished in support of any of those grounds and in support of his application, generally.
Ground 1
In support of Ground 1 the applicant said that he had no further evidence to provide, that he did not understand and that he had nothing further to say.
I asked the applicant if there were any other integers of his claims that he submitted that the Tribunal had failed to consider, other than those identified in Grounds 1(a) and (b), and the applicant confirmed that there were not.
Ground 1(a)
Ground 1(a) asserts that the Authority failed to consider the fact that the applicant is liable to extortion as a person from overseas. The Authority summarised the applicant’s claims for protection in paragraph 3 of its reasons as follows:
“Applicant's claims for protection
3. The applicant's claims are contained in the information referred to the IAA. They can be summarised as follows:
• In 2004 he came to know a number of Liberation Tigers of Tamil Eelam (LTTE) cadres who were attached to the intelligence wing of the LTTE. He and several others assisted the LTTE by transporting cadres and goods in the area.
• Two other Tamil boys were assisting the LTTE in the same way as the applicant. One was abducted and never found. The other was tortured and killed by the Special Task Force (STF).
•The situation deteriorated when the Karuna Group separated from the LTTE around this time.
• The applicant decided to leave for Saudi Arabia to work. His passport was obtained through altered documents - a national ID and birth certificate with an incorrect birth date (changed from 1986 to 1984).
• The applicant returned from Saudi Arabia in 2009. He began to support the Tamil National Alliance (TNA) and two of its candidates prior to the 2012 elections. He drove a van for the TNA.
•During the campaign members of the Karuna Group threatened to harm him if he did not cease campaigning for and supporting the TNA. The applicant again decided to leave Sri Lanka.
• He fears harm on the basis of these forged and fraudulently obtained travel documents. The applicant fears that if he returns to Sri Lanka it will be necessary to present his genuine Sri Lankan birth certificate, at which point Sri Lanka authorities will identify his true birth year. He may be questioned and could face imprisonment.”
No new information was provided to the Authority.
The Authority’s decision record makes clear that it considered the applicant’s claims, as identified by it above, in some detail and referred to evidence given by the applicant in his interview before the Delegate. The Authority noted various matters that the Delegate put to the applicant about his claims and noted the applicant’s responses. The Authority accepted that in 2004-2005 the applicant provided infrequent, low-level support to the Liberation Tigers of Tamil Elam (“LTTE”) before leaving for Saudi Arabia. However, the Authority was not satisfied that such conduct gave rise to any profile that would put the applicant at risk of harm.
The Authority found that neither the applicant nor anyone in his family possessed any actual or imputed political opinion or profile, or had any perceived connection to the LTTE that would result in the applicant facing a real chance of harm if returned to Sri Lanka.
In relation to the applicant’s claims of support for the Tamil National Alliance (“TNA”) the Authority, again, referred to evidence given by the applicant to the Delegate and noted various exchanges between the applicant and the Delegate. Ultimately, the Authority found the applicant’s knowledge of the TNA, and his explanations for why he became involved with the TNA or why he supported the party, to be general in nature and lacking in detail. The Authority noted that, individually, the applicant’s limited knowledge of the TNA and discrepancies in his evidence may not necessarily have led the Authority to reject those claims. However, the Authority found that, collectively, they indicated that the claims were not credible. Accordingly, the Authority found the applicant did not have a political opinion in support of the TNA, and had not assisted TNA candidates during the 2012 elections as claimed, or at any other time.
The Authority rejected the applicant’s claim that he was threatened by the Karuna Group, the Tamil Makkal Viduthalai Pulikal (“TMVP”), or anyone else in connection with his participation in the 2012 elections. The Authority also did not accept that the applicant would become politically active on return to Sri Lanka and found there was no real chance of him being seriously harmed by the Karuna Group, the TMVP, or anyone else.
The Authority then considered the applicant’s claims to have had issues with the TMVP due to his previous support for the LTTE and considered, separately, whether he would be at harm from the TMVP. The Authority was satisfied, however, that the applicant has no history or profile with the TMVP that would place him at any chance of being harmed on return and, therefore, there was not a real chance of him being harmed by the TMVP for any reason.
The Authority also considered the applicant’s claims relating to his ethnicity and referred to various country information which it had identified with specificity. The Authority also noted submissions made by the applicant’s representative, and noted that the applicant claimed that the prevailing country information was not accurate, and that problems still continue in the country.
The Authority found that only those with a profile or who present a security risk to the State continued to face problems in Sri Lanka. The Authority was not satisfied that the applicant had any such profile and, based on the country information before it, was satisfied that the applicant did not face a real chance of serious harm on the basis of his ethnicity as a Tamil, or for being a Tamil from the east of Sri Lanka, or for any other reason related to those characteristics.
The Authority also considered the applicant’s claims that he would be at risk of harm for departing Sri Lanka illegally, or as a failed asylum seeker. Again, the Authority identified with specificity country information on which it relied and had regard to submissions made on behalf of the applicant by his representative. Ultimately, the Authority found that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure, as a returnee, as a failed asylum seeker, because of his breach of Sri Lankan law, or any connection with any other factors relevant to those matters would not constitute persecution for the purpose of the Act.
The Authority then concluded in relation to the applicant’s Convention related refugee claims as follows:
“Refugee: conclusion
63. In view of all the circumstances, I find that the applicant will not face a real chance of serious harm on return to Sri Lanka on the basis of any actual or imputed political opinion or profile connected to the LTTE (including his past low level support for the LTTE), on the basis of his political opinion or past support for the TNA, any residual threat from the TMVP, for being a Tamil or a Tamil from the East, as a returnee, or as a result of departing Sri Lanka illegally and seeking asylum in Australia, or as a consequence of him obtaining fraudulent or forged travel documents.”
The Authority then considered whether the applicant met the complementary protection criterion and, essentially for the same reasons that it found the applicant did not meet the refugee criteria, was satisfied that there was not a real risk that the applicant would face significant harm upon return to Sri Lanka for the reasons claimed.
The Authority’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Authority] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)
It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
The applicant has not filed any evidence before this Court to suggest that there was any other material provided by him to the Authority which the Authority was obliged to, and failed to, consider.
The Authority’s decision record does not disclose that there was any claim made by the applicant that he would be liable to extortion as a person from overseas. True it is, that in order to properly exercise its review jurisdiction, the Authority is required to assess all claims made by an applicant as well as those which, although not expressly made, arise squarely on, or are apparent from the face of, the material before the Authority (see NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 at [58]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [13]). However, I accept the submission of the first respondent that, in relation to a claim of being liable to extortion as a person from overseas, no such claim squarely arose on the material before this Court.
Accordingly, Ground 1(a) is not made out.
Ground 1(b)
Ground 1(b) asserts that the Authority failed to consider the applicant’s claims cumulatively. However, the paragraph cited above at [38] makes clear that the Authority did indeed have regard to all the applicant’s claims in considering whether he was a person to whom Australia owed protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Act. That cumulative consideration is made clear by the words at the outset of the paragraph cited above: “In view of all the circumstances”.
Otherwise, the applicant’s complaints in Ground 1 do not identify any jurisdictional error on the part of the Authority and appear more to be a disagreement with the findings and conclusions of the Authority. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground 1(b) is not made out.
Ground 2
Ground 2 asserts that the Authority failed to consider the Department’s Procedural Advice Manual 3 guidelines (“PAM3 Guidelines”). Again, the applicant had nothing to say in support of this Ground, and said that he did not understand the Ground, although he did tell the Court that he had written the grounds of his application.
The first respondent tendered a copy of Minister for Immigration and Border Protection (Cth), Ministerial Direction [No.56] - Consideration of Protection Visa applications, 22 June 2013 (Ministerial Direction No. 56”), marked Exhibit 2R, in support of the contention that there was no obligation on the Authority to consider the PAM3 Guidelines.
Ministerial Direction No.56 states that it applies only to decision makers performing functions or exercising powers under ss.65, 414 or 415 of the Act. Those sections refer to Part 7 of the Migration Act which relate to reviews of decisions of Delegates of the Minister by the Administrative Appeals Tribunal.
Section 499 of the Act makes clear that:
“(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.”
The Minister is entitled to give directions to the Authority as such a body. However, Ministerial Direction No.56 is not directed to the functions or powers of the Authority. Ministerial Direction No.56 is directed to the performance by the Administrative Appeals Tribunal of its functions and the exercise of its powers, rather than the functions and powers of the Authority. Clause 2 of Ministerial Direction No.56 states as follows:
“2. In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.
‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’
‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’”
The PAM3 Guidelines referred to in cl.2 of Ministerial Direction No. 56 relate to Complementary Protection Guidelines and Refugee Law Guidelines, as matters to be taken account of by the Administrative Appeals Tribunal in considering whether an applicant satisfies refugee criteria as identified in s.36(2)(a) and s.36(2)(aa) of the Act.
Ministerial Direction No.56 makes clear on its face that it is not intending to direct that the Authority is required to have regard to the PAM3 Guidelines in relation to Complementary Protection Guidelines and Refugee Law Guidelines in the discharge of its functions and the exercise of its powers. The Authority performs its function and exercises its powers under Division 2, Part 7AA of the Act (s.473CC of the Act), whereas as stated above, the Administrative Appeals Tribunal conducts its review in accordance with Division 2, Part 7 of the Act.
Accordingly, there is no error on the part of the Authority to fail to consider the PAM3 Guidelines in the conduct of its review. I note that in DTH17 v Minister for Immigration & Anor [2018] FCCA 729 at [36], Judge Smith was of a similar view:
“36. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Ministerial Direction No. 56 was a direction made by the Minister under s.499(1). That Direction was not in evidence before the Court; however, it has been considered in a number of other cases and, for present purposes, it may be accepted that it was addressed to a person or body “performing functions or exercising powers under section 65, 414, or 415 of the Act”. The IAA was not performing any such function.”
Otherwise, there is nothing on the face of the Authority’s decision record to suggest that its review and decision were conducted other than in accordance with the statutory regime provided for in Part 7AA of the Act.
The Authority’s decision record makes clear that it understood the claims being made by the applicant and considered those claims in detail, referring to evidence given by the applicant to the Delegate and submissions made by the applicant’s representative to the Delegate.
The Authority made findings that were open to it on the evidence and material before it and for the reasons it gave, and to which it applied the correct law.
In the circumstances, the Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 25 May 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Statutory Construction
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