DFH17 v Minister for Immigration
[2018] FCCA 2059
•27 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFH17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2059 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – refusal of an extension of time for show cause application. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 91R, 473DE, 473HB, 473HD, 473HG, 477 |
| Cases cited: Minister for Immigration v WZAPN [2015] HCA 22 WZAPN v Minister for Immigration [2014] FCA 947 |
| Applicant: | DFH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2262 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr J McGovern of Clayton Utz |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2262 of 2017
| DFH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 10 February 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 19 June 2018.
The applicant, who is a Sri Lankan citizen, arrived in Australia on 14 November 2012 as an unauthorised maritime arrival. On 17 June 2016, he lodged an application for a safe haven enterprise visa (SHEV).[1]
[1] Court Book (CB) 26 - 98.
On 21 December 2016, the delegate refused to grant the SHEV.[2] On 10 February 2017, the Authority affirmed the delegate’s decision.[3]
[2] CB 122 - 143.
[3] CB 148 - 165.
On 18 July 2017, the applicant commenced the current proceedings.
The applicant’s claims
The applicant claimed to fear harm in Sri Lanka on the basis of an imputed connection to the Liberation Tigers of Tamil Eelam (LTTE). In particular, he claimed that:[4]
[4] See CB 63 - 65 (applicant’s statement dated 14 June 2016), CB 77 (applicant’s statutory declaration dated 14 June 2016), CB 150 [5].
a)he is a Tamil from the Northern Province, who was displaced from 1995 until 2000 due to the conflict in Sri Lanka;
b)in 2007 or 2010, he was taken by the Karuna Group for seven days and tortured under suspicion of being involved with the LTTE;
c)he travelled to India in February 2008 and returned to Sri Lanka in July 2008, and worked in Qatar from November 2008 until August 2010;
d)in 2010 or 2012, he was approached by two persons on a motorbike who questioned him about where he was from and why he had travelled overseas;
e)in 2010 or 2012, he lived in hiding at the home of a priest;
f)he departed Sri Lanka by boat in October 2012;
g)in May 2014, the applicant’s cousin was arrested by the Terrorist Investigation Division (TID) and held for 18 months. The cousin was tortured and questioned about the applicant;
h)in 2015 and 2016, the TID came to the applicant's mother's home in search of him. They harassed his mother and sister; and
i)in April 2016, the cousin was again arrested by the TID.
The Authority’s findings
The Authority noted that it had obtained new information from the most recent DFAT country report for Sri Lanka published 24 January 2017 (which post-dated the delegate’s decision), and was satisfied that there were exceptional circumstances to justify considering it.[5]
[5] CB 150 [4].
The Authority accepted that the applicant and his family were displaced by the conflict in Sri Lanka. It did not accept the applicant’s claim to have been abducted by the Karuna Group, due to discrepancies in his evidence. In particular, the applicant provided two written statements with his SHEV application, both dated 14 June 2016, which recorded different dates of the alleged abduction (November 2007 and post-August 2010).[6] In his entry interview, the applicant made no reference to having any prior difficulty with the Karuna Group, or being detained by police or security organisations.[7] The Authority found that these inconsistencies undermined the applicant’s credibility. The Authority did not accept that the applicant fled to India in 2008 because he came to the adverse attention of the Karuna Group or any other group.[8]
[6] CB 152 [15].
[7] CB 152 [13].
[8] CB 153 [15].
The Authority noted inconsistencies in the applicant’s evidence in relation to the events following his return from India in July 2008. Preferring the applicant’s oral evidence from the SHEV interview, it found that upon return from India the applicant commenced work in a retail store for three to four months in Kalmunai. It was not satisfied that prior to his departure to Qatar in November 2008 he was in hiding. The Authority also noted significant inconsistencies in the applicant’s account of events between September 2010 and October 2012. Given the conflicting evidence as to when he was living in Kilinochchi, when and why he was questioned by unknown men in helmets, their level of interest in him and how long he was in hiding, the Authority was not satisfied that the applicant was recalling a genuine personal experience.[9] While the Authority accepted as plausible that following a prolonged period overseas the applicant may have been questioned by the Sri Lankan authorities, and may have kept a low profile at a priest’s home, it did not accept that on this basis he was a person who had come to the adverse attention of the Sri Lankan authorities or any other group.[10]
[9] CB 154 [21] - 155 [26].
[10] CB 155 [26], 156 [29].
The Authority noted that the applicant had not advanced any claim to fear harm on the basis of his uncle’s involvement in Sri Lankan politics, and given the applicant’s evidence, was not satisfied that he is at risk of harm for this reason.[11] While the Authority accepted as plausible that the applicant’s cousin had been detained by the TID as claimed, on the basis of the applicant’s own profile, it did not accept that he is a person of adverse interest to the TID or that he was the subject of his cousin’s TID interrogation. Nor did it accept that the TID went to the applicant’s home in 2015 and 2016 and enquired about him.[12]
[11] CB 156 [28].
[12] CB 157 [37].
Having regard to country information, the Authority found that the applicant will not face a real chance of serious harm due to his Tamil ethnicity, or any actual or imputed LTTE connections (including familial connections).[13]
[13] CB 158 [40].
On the basis of country information and noting that the applicant departed Sri Lanka without a passport, the Authority found that if returned to Sri Lanka, the applicant would likely be fined under the Sri Lankan Immigrants and Emigrants Act (IAEA), and may be briefly detained in poor conditions. However, the Authority considered that such treatment would be pursuant to a non-discriminatory law of general application and did not rise to serious or significant harm.[14] In coming to this conclusion, the Authority relied upon a finding that any harm would not be intended by the authorities.[15]
[14] CB 159 [48], CB 161 [57].
[15] CB 160 [56].
Considering the applicant’s claims both individually and cumulatively, for the reasons set out above the Authority found that the applicant was not a person to whom Australia owes protection obligations on refugee or complementary protection grounds.[16]
[16] CB 159 [49]-[50], 161 [58]-[59].
The present proceedings
These proceedings began with a show cause application filed on 18 July 2017. The applicant continues to rely upon that application.
The application was filed 123 days outside the period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time, pursuant to s.477(2). The grounds in the application in support of an extension of time are:
1.The application be heard in the interest of administration of justice
2.Issue of notice- See my Affidavit.
3.Duty of care by my agent- my agent did not tell me the refusal of IAA decision and explain the reasons for refusal as I expected my agent to do so.
The application is supported by an affidavit filed with it. The propositions in that affidavit bearing on the extension of time are:
3.In early June 2017 I was contacted by the Immigration Department and informed that my visa had been cancelled.
4.That is the time I came to know that my IAA application had been refused.
5.Later I contacted IAA and obtained a copy of the decision.
I also have before me as evidence the court book filed on 20 October 2017.
The Minister opposes an extension of time. The Minister draws attention to the lack of merit in the application and what the Minister sees as the inadequate explanation for the applicant’s delay in coming to court. The Minister submits that the purported explanation for delay, namely, that the applicant was not aware of the Authority decision until early June 2017, and did not receive a copy of the Authority decision record until he contacted the Authority, lacks merit. The Authority decision was sent to the applicant by email on 10 February 2017, at the email address “[email protected]”.[17] This was the email address for service provided by the applicant to the Minister’s Department,[18] and subsequently provided to the Authority.[19] The Authority confirmed in its “acknowledgement of referral” letter dated 6 January 2017 that it would be contacting the applicant at this email address, and stated: “Please note we will be sending correspondence to you at the following address unless you tell us otherwise: [email protected]”.[20]
[17] CB 147.
[18] CB 42 at q 41.
[19] CB 145.
[20] CB 145.
Accordingly, the Authority decision was transmitted to the applicant in accordance with s.473HB(6)(b) and (d) of the Migration Act. The applicant is taken to have received it on 10 February 2017, pursuant to s.473HD(5) of the Migration Act.
The applicant maintains that he did not become aware of the Authority decision until he consulted the Minister’s Department about an extension of his bridging visa. In his oral submissions, the applicant states that he approached the Minister’s Department twice and found out about the Authority decision on the second occasion. He maintains that he has not had any problem in the receipt of hard copy mail and nor has he had any other problem with his email address. The applicant also submits that he was reliant upon his migration agent to inform him of developments in relation to his visa.
A peculiarity here arises from the operation of s.473HG of the Migration Act. The effect of that section is that the Authority is under no obligation to communicate with an authorised recipient appointed for prior consideration of a visa application by a delegate. The Authority only comes under an obligation to communicate with an authorised recipient if it is notified in accordance with that section. This was pointed out to the applicant in the Authority’s letter dated 6 January 2017, notifying him of the referral.[21] It is, nevertheless, plausible that the applicant may have been labouring under the misapprehension that his migration agent would be informed of the Authority decision and would tell him of it.
[21] See CB 145.
Even if, however, I were persuaded that the applicant had provided an adequate explanation for his delay in coming to court, there is, in my view, insufficient merit in the proposed application to support an extension of time. In that regard, I agree with the Minister’s submissions concerning the proposed grounds of review.
Proposed grounds of review
The applicant raises three proposed grounds of review in his substantive application:
Ground 1
IAA made a jurisdictional error as it misapplied the well- founded fear test.
Particulars
IAA did not consider Applicant's association with his cousin, who was tortured, would give rise to imputed political opinion of the LTTE.
Ground 2
The IAA did not take into account a relevant issue.
Particulars
Particluars of ground 1 apply.
Ground 3
IAA failed to engage itself in WZAPN qualitative assessment.
Particulars
Applicant's cousin was tortured as he was suspected of LTTE connections and Applicant fears the same will happen to him.
Although Applicant was not involved in the LTTE he will be imputed with LTTE profile.
(errors in original)
By grounds 1 and 2, the applicant asserts that the Authority committed jurisdictional error by failing to consider whether the applicant’s association with his cousin gave rise to a well-founded fear of harm (or real risk of significant harm) on the basis of imputed political opinion. No jurisdictional error is disclosed by these grounds, as it is clear from the decision record that the Authority squarely addressed this claim.
The Authority identified the applicant’s claim to fear harm in Sri Lanka due to his cousin being arrested by the TID in May 2014, detained, interrogated about the applicant, and again arrested in April 2016.[22] It noted that the applicant claimed that his cousin had never been involved with the LTTE.[23]
[22] CB 150 [5], 157 [36].
[23] CB 156 [30].
While the Authority accepted as plausible that the applicant’s cousin was detained by the TID, it did not accept that the applicant was of adverse interest to the TID or any other authority because of his connection with his cousin. It reached this conclusion in light of:
a)the applicant not claiming to have had any prior involvement with the LTTE, any affiliated group, politics or anti-government protests;
b)the applicant’s evidence that he travelled in and out of Sri Lanka on several occasions without difficulty; and
c)due to its previous credibility concerns regarding the applicant’s inconsistent accounts of his experiences in Sri Lanka.[24]
[24] CB 157 [37].
The Authority did not accept that the applicant was the subject of his cousin's TID interrogation, nor that the TID went to the applicant’s home in 2015 and 2016 and enquired about him.[25]
[25] CB 157 [37].
The Authority considered the applicant’s profile in light of the evidence and country information and expressly found that he is not a person who faces a real chance of serious harm “on account of any actual or imputed LTTE connections, including familial connection” and does not face a real chance of serious harm due to “his cousins actual or imputed LTTE profile” in Sri Lanka now or in the foreseeable future.[26] For the same reasons, the Authority found that the applicant does not face a real risk of suffering significant harm in Sri Lanka due to actual or imputed personal or familial links to the LTTE.[27]
[26] CB157 [40] - 158 [41].
[27] CB 160 [53].
It is therefore clear that the Authority addressed the applicant’s claim to fear harm due to his association with his cousin, and made findings on this issue in relation to both the refugee and complementary protection assessment that were open to it.
By ground 3, the applicant alleges that the Authority “failed to engage itself in WZAPN qualitative assessment”. It is unclear why the particulars to ground 3 repeat the applicant’s claim to fear harm due to an imputed connection to the LTTE. In any event reliance upon Minister for Immigration v WZAPN[28] is misplaced, and does not reveal error on the part of the Authority.
[28] [2015] HCA 22.
The issue in WZAPN (an appeal from the decision of Justice North in WZAPN v Minister for Immigration[29]) was whether, for the purposes of s.91R of the Migration Act (now, relevantly, s.5J), the likelihood of temporary detention for a Convention reason is, of itself and without more, a threat to liberty within the meaning of s.91R(2)(a) of the Migration Act. The High Court held that it was not, and that the Migration Act required a qualitative judgment as to whether the risk of the loss of liberty constituted serious harm.[30]
[29] [2014] FCA 947.
[30] At [45].
In the present case, the Authority engaged in a consideration of the circumstances and consequences of the applicant’s potential detention upon his return as an illegal departee and failed asylum seeker. It found on the basis of country information that while the prison conditions might be “poor”, they do not of themselves constitute serious harm as defined by the Migration Act, nor would the applicant face a real chance of serious harm during any brief time spent in detention.[31] The Authority having made a qualitative evaluation in respect of the applicant’s likely detention, and determining that the applicant was not at risk of serious harm on return to Sri Lanka for this reason, no jurisdictional error is disclosed by ground 3.
[31] CB 159 [47].
The Authority was also satisfied that the IAEA is a law of general application, such that the applicant does not have a well-founded fear of persecution within the meaning of s.5J.[32]
[32] CB 159 [48].
I have, in addition, considered for myself whether any arguable case of error arises from [4] of the Authority’s decision:
I have obtained new information, specifically information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum abroad (information not specifically about the applicant but about a class of persons of which the applicant is a member) from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017. The delegate relied on the 18 December 2015 DFAT report for Sri Lanka which the 24 January 2017 report has superseded. I am satisfied that there are exceptional circumstances to justify considering this new information.
(citation omitted)
I have considered whether the Authority came under any obligation to notify the applicant of the new information it obtained and invite the applicant’s comments on it. Having regard to the terms of s.473DE(3)(a) of the Migration Act, I am satisfied that no such obligation arose.
Conclusion
I conclude that the interests of the administration of justice do not call for the granting of an extension of time in this case. I will order that the extension of time be refused pursuant to s.477(2) of the Migration Act. The consequence is that the application is incompetent for want of jurisdiction.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 30 July 2018
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