DFL16 v Minister for Immigration
[2019] FCCA 3480
•5 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFL16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3480 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse a Safe Haven Enterprise (Class XE) (Subclass 790) visa based on the applicant’s fear of harm arising from an incident with the Sri Lankan authorities – applicant claimed that Immigration Assessment Authority committed jurisdictional error in not inviting the applicant to give to it new information pursuant to s.473DC(3) of the Migration Act 1958 (Cth) in relation to interviews held with the applicant earlier in the Protection visa application process which was claimed to be information not before the Minister for Immigration and therefore new information for the purposes of s.473DC of the Migration Act 1958 (Cth) – content of earlier interviews with the applicant found to have been before the Delegate of the Minister for Immigration and in any event did not contain a rejection, denial or undermining of the applicant’s claims – applicant fails to establish any jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 46A, 424A, 473CA, 473CB, 473DA, 473DB, 473DC |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 |
| Applicant: | DFL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2955 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 6 February 2019 |
| Date of Last Submission: | 5 March 2019 |
| Date Reserved: | 7 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr B. Kaplan of Counsel |
| Solicitors for the First Respondent: | HWL Ebsworth |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The following documents will be marked Exhibits, as follows:
(a)Court Book – Exhibit A;
(b)Affidavit of Mr Alan John Smith affirmed on 25 October 2018 – Exhibit B; and
(c)Affidavit of Ms Aileen Catherine Fitzmaurice affirmed on 8 November 2018 – Exhibit C.
The Application filed in this Court on 27 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2955 of 2016
| DFL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Sri Lanka of Tamil ethnicity aged 40 years, having been born on 23 March 1979.
By Application filed in this Court on 27 October 2016 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 10 October 2016 under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 26 August 2016 refusing to grant to him a Safe Haven Enterprise (Class XE) (Subclass 790) visa (Protection visa).
Background
The Applicant departed Sri Lanka illegally by boat on 1 August 2012. The boat was intercepted in September 2012 and the Applicant was detained at Cocos Island on 18 September 2012, then Christmas Island and Curtain, Perth, until January 2013.
On 19 August 2013 the Applicant attempted to make an application for a Subclass 866 visa which was invalid by reason of s.46A(1) of the Act (invalid Protection visa application).
On 16 October 2015 the Minister, under s.46A(2) of the Act, lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making his application for the Protection visa on 10 December 2015.
The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:
a)who entered Australia after 13 August 2012 but before 1 January 2014;
b)who was not taken to a regional processing country;
c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and
d)who made, as he did, a valid application for a Protection visa.
Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the decision of the Delegate refusing to grant to the Applicant a Protection visa in this case.
I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 per Griffiths J at 538 – 541 [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to 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, is 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....
Claims for Protection
On 25 September 2012 the Applicant participated in an interview (Arrival Interview) with an officer of the Department of the Minister (Department), of which there is a written record (written Arrival Interview) and in which he claimed that he had left Sri Lanka because of “ongoing harassment by the CID in relation to a bomb blast near my place”.
On 7 January 2013 the Applicant participated in an Irregular Maritime Arrival Entry Interview (IMAE Interview) with another officer of the Department, of which there is a written record (written IMAE Interview) and an audio recording (audio IMAE Interview), in which he repeated his claim that he had left Sri Lanka because of ongoing harassment by the CID in relation to a bomb blast near his house, recorded at page 13 of the written IMAE Interview in the following terms:
1.Why did you leave your country of nationality (country of residence)?
Ongoing harassment by the CID in relation to bomb blast near my house.
They removed weapons about three houses away from my house in Karnavai East, in 2006 no one lived in these houses, our house was the only one occupied, I was the only young person living there, they wanted to know if I knew of any more weapons stashed. I was taken to the police station for 3 days, I was told not tell anyone. I had to go 3 times. I was threatened with being taken to the "4th Floor in Colombo" I was very scared.
In a Statutory Declaration declared on 16 August 2013 (Statutory Declaration) lodged in support of his invalid Protection visa application and in the migration agent’s submissions in support of that application dated 19 August 2013 (migration agent’s submissions) it was claimed that the Applicant left Sri Lanka because he had lived three doors down from an abandoned house where the Sri Lankan army had found ammunition and weapons had been stored. The Applicant was reported to the Sri Lankan police as being involved and knowing of the ammunition, which resulted in him being summoned to a police station for questioning, where he was interrogated, threatened with electric shock treatment and tortured by having his nails removed with pliers.
Both the Statutory Declaration and the migration agent’s submissions were re-lodged with the Department in support of the Protection visa application the subject of this proceeding together with a Supplementary Statement dated 7 December 2015 (Supplementary Statement), which corrected the year of 2006 given by the Applicant in the IMAE Interview (see [11] above) in the following terms:
Incident with the Sri Lankan Army
In my entry interview, on page 13, it states that the incident with the Sri Lankan Army finding the ammunition occurred in 2006. This is incorrect. What I meant to say is that since 2006, no one had occupied those houses, and our house was the only house that was occupied.
The Sri Lankan Army found the ammunition in the empty house in early August 2012. I think it was about a week later that my neighbour reported to them that I knew something about it. Then I received the letter from the Army on 20 August 2012.
After the interrogation, they required me to provide information on the source of the ammunition by 30 August 2012, which I did not do. They threatened that if I did not provide information by this date, they would take me to the fourth floor of the CID in Colombo and interrogate me, which I know means they are likely to torture me.
Decision of Delegate
The Applicant attended an interview with the Delegate on 7 March 2016. However, in the result the Delegate found that the Applicant’s evidence was not persuasive, that his testimony was vague and that there were unexplained inconsistencies which led the Delegate to “not accept as credible that the applicant has ever been arrested, detained or harmed by Sri Lankan authorities, as claimed”.
The Delegate then proceeded to consider a body of independent country information which led him to not be satisfied that the Applicant faced a real chance of harm, now or in the reasonably foreseeable future, in Sri Lanka on the basis of his Tamil ethnicity, and that he was not of adverse interest to the Sri Lankan authorities and would not suffer harm as a failed asylum seeker.
The Delegate found that the Applicant was not a refugee as defined by s.5H(1) of the Act and that Australia did not owe him protection obligations under either the Refugees Convention criterion or the complementary protection criterion and he refused to grant the Protection visa to the Applicant.
IAA Decision
On 29 August 2016 the Minister, pursuant to s.473CA of the Act, referred to the IAA the Delegate’s refusal to grant the Protection visa to the Applicant.
In an email dated 26 September 2016 the Applicant’s new migration agent included a submission to the IAA which submitted that the Delegate had erred in not accepting that the Applicant had ever been arrested, detained or harmed by the Sri Lankan authorities.
At [3] of its Decision Record the IAA recorded that it had regard to the material referred to it by it by the Secretary of the Department under s.473CB of the Act. At [8] it summarised the claims of the Applicant.
In the result, the IAA was not satisfied that the Applicant was a refugee under s.5H(1) of the Act or that he satisfied the Refugees Convention criterion or the complementary protection criterion and it affirmed the Delegate’s decision not to grant the Protection visa to the Applicant.
For the purposes of this proceeding the following parts of the Decision Record of the IAA are relevant:
a)at [12] it foreshadowed its concerns regarding the Applicant’s credibility by stating:
[12]Having considered the applicant's claims in his written statements, submissions on his behalf and evidence he gave at interviews with the Department, I have a number of concerns regarding the applicant's credibility and the veracity of the evidence he has given.
b)then at [16], [17] and [20] it stated as follows:
[16]In his written arrival interview on 25 September 2012 the applicant stated that he was the subject of ongoing harassment by the Criminal Investigation Division (CID) in relation to a bomb blast near his house. Subsequently, in the recorded entry interview on 7 January 2013, the applicant elaborated on that claim and stated that after the bomb blast, weapons were removed from a neighbouring house and he was taken to the Nelliady police station for questioning. Later in that interview, he contradicted that statement and said that he was asked to come to the police station by himself on three consecutive days.
[17]The applicant also claimed in his application for protection that while being interrogated over three days, he was threatened with electric shock treatment and that the police used pliers to pull his nails. This claim was not raised in any of his interviews including the 25 September 2012 arrival interview. When he was asked directly whether he was mistreated while he was at the police station he stated he was threatened and that he was very scared. I do not consider it credible that if the applicant had been tortured in such a brutal manner as recently as a month earlier, he would not have mentioned it when asked directly whether he had been mistreated while he was at the police station.
[20]There are a number of other inconsistencies in the applicant's evidence. In his application he states he was interrogated on each of those three days from 9 am until 12pm. In his SHEV interview he stated the enquiries lasted for two hours. When he was asked who it was interrogated him, the applicant also appeared to be confused about whether it was the CID, the SLA or the police. By themselves, these two inconsistencies could be explained by the traumatic nature of what the applicant alleges he endured. There are, however, other more significant issues in the evidence presented by the applicant.
c)the ultimate conclusion of its consideration of the Applicant’s claims concerning the Sri Lankan police was summarised at [26]:
[26]Considering the evidence as a whole, I do not accept that the applicant was interrogated and tortured for three days by the police because they suspected him in connection with a weapons cache found close to his home. It follows that I do not accept that since his departure from Sri Lanka, the SLA came to his parent's house and that of his siblings to ask for his whereabouts or that the SLA came to his house in October 2012 and took his passport. I find that the applicant has fabricated this claim and that at the time he left Sri Lanka he was not a person of interest to the authorities.
Grounds of Attack on IAA Decision in this Court
The Ground relied upon by the Applicant in his Application is as follows:
1. The Authority acted unreasonably in not exercising its power under s.473DC(3) to invite the applicant to give new information orally or in writing.
Particulars
a. At [17] and [20] the Authority made credibility findings based on claims that were not raised in any of the applicant’s earlier interviews;
b. The earlier interviews were not before the Minister when the Minister made the decision under section 65 on 26 August 2016 and are therefore new information;
c. The Authority did not exercise its power under s.473DC(3) and invite the applicant orally or in writing to give new information relating to claims not raised as the earlier interviews;
d. The Authority’s credibility finding was part of the reason to affirm the decision of the delegate;
e. The applicant was not given an opportunity to comment on the adverse finding;
f. The Authority acted unreasonably and/or there being a reasonable apprehension of bias.
Consideration
Ground 1(b) appears to assert that the written Arrival Interview, the written IMAE Interview and the audio IMAE Interview, all of which were referred to by the IAA, were not before the Delegate when he made his decision not to grant the Protection visa to the Applicant and accordingly constituted “new information” with respect to which the IAA ought to have invited the Applicant to give new information to it under s.473DC(3) of the Act. In other words I take this Ground as contending that because the IAA identified inconsistencies in the Applicant’s evidence as previously given at various times, the Applicant should have been given an opportunity to comment on those alleged inconsistencies which resulted in adverse credibility findings against him and that because the written Arrival Interview, the written IMAE Interview and the audio IMAE Interview were not before the Delegate the IAA was unreasonable in not exercising its power under s.473DC(3).
At the hearing Mr Kaplan of Counsel, who appeared for Minister, submitted that the onus was on the Applicant to demonstrate by evidence that “The earlier interviews were not before the Minister” when the Delegate made his decision, but that the Applicant had not led any such evidence. Nevertheless Mr Kaplan, without resiling from his submission in this regard, led evidence that in my view established that “The earlier interviews” were before the Delegate at the time the Delegate made his decision. On the basis of the affidavits of Mr A. J. Smith of 25 October 2018 and Ms A. C. Fitzmaurice of 8 November 2018 I find as follows:
a)the written Arrival Interview (referred to at [16] of the Decision Record of the IAA) was “before the Minister” in the sense of being physically before the Delegate of the Minister (see the decision of the Full Court of the Court of Australia comprised of McKerracher, Gleeson and Burley JJ in DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170 at [38]) and was actually viewed by the Delegate before his decision;
b)the written IMAE Interview (also referred to at [16] of the Decision Record of the IAA) was “before the Minister” in the sense of being physically before the Delegate of the Minister and was actually viewed by the Delegate before his decision;
c)the audio IMAE Interview (referred to at [16] and [17] of the Decision Record of the IAA) was “before the Minister” in the sense of being physically before the Delegate of the Minister and was actually extracted by the Delegate before his decision; and
d)each of the written Arrival Interview, written IMAE Interview and audio IMAE Interview were given to the IAA by the Secretary of the Department pursuant to s.473CB(1)(c) of the Act and thus formed part of the “Review Material” as defined in s.473CB(1) and the IAA was, by force of s.473DB(1), to consider that “Review Material” and “without accepting or requesting new information” and “without interviewing the referred applicant”;
e)the audio IMAE Interview as given to the IAA was identical with the audio IMAE Interview before the Delegate; and
f)the written Arrival Interview, written IMAE Interview and audio IMAE Interview did not constitute new information under s.473DC of the Act.
The above factual findings have the consequence that, subject to legal unreasonableness, the IAA was entitled to make its decision without seeking new information from the Applicant under s.473DC(3) of the Act.
Further, with respect to Ground 1(e), as Mr Kaplan submitted, s.473DC(3) of the Act does not confer power on the IAA to invite an Applicant “to comment”, but rather confers power to get “new information” as defined in s.473DC(1). As Griffiths J stated in AZR16 v Minister for Immigration and Border Protection [2017] FCA 1453 at [65]:
[65] … The Act creates and maintains different procedures for the getting or giving of “information”(ss 424(1) and (2)) and the giving of [“]comment” or “response” about “information” (ss 424A/424AA). The content of these interrelated provisions highlights that the Act has always maintained the distinction between, on the one hand, “information” and “giv[ing] information” and, on the other hand, the giving of “comment” and “responses”. The Act does not equate those concepts or treat them as synonymous, even though they may overlap to some extent.
In reality, what this Ground appears to contend for is that the common law rules of procedural fairness and the principles enunciated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 applied in the circumstances of this case, whilst ignoring the force and effect of s.473DA of the Act, which precludes an obligation of procedural fairness on the part of the IAA to put a referred applicant on prior notice of possible adverse credibility findings which it may make: see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [69] and [78].
In any event, there was nothing in the written Arrival Interview, written IMAE Interview or audio IMAE Interview which contained in their terms a “rejection, denial or undermining” of the Applicant’s claims, but rather they contained an articulation and affirmance of those claims. Even under s.424A(1) of the Act the Administrative Appeals Tribunal is not required to put to an affected person inconsistencies in their evidence impacting on his or her credibility. This is because such material does not itself constitute a “rejection, denial or undermining” of an applicant’s claims to a Protection visa: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at 615 [17] and Minister for Immigration and Citizenship v SZFLX (2009) 238 CLR 507 at 513 [22]. As was said in SZBYR at 616 [18]:
[18]…However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence…
Further, common law procedural fairness does not require an administrative decision-maker “to expose his or her thought processes or provisional views for comment before making the decision”: see French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 598 – 599 [9].
With respect to legal unreasonableness this case is distinguishable from Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16) in which case the IAA made its decision based on relocation, unlike the Delegate in that case, and the IAA did not have, but the applicant was likely to have, information on his particular circumstances and the impact of relocation on him. It was held by the Full Court of the Federal Court that the failure of the IAA to consider exercising its discretionary power under s.473DC(3) of the Act to get information from the applicant on the issue of relocation was legally unreasonable.
In this Court the onus was on the Applicant of establishing on the balance of probabilities that the IAA failed to consider exercising its discretionary power under s.473DC(3) of the Act. The IAA was under no obligation to give reasons for its exercise or non-exercise of any procedural powers, such as its discretion under s.473DC(3): see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (BVD17) at [16], and failure to mention the exercise of any such discretion “… cannot support the drawing of an inference that the exercise of the discretion was not considered”: see BVD17 at [40]. In the circumstances I am not prepared to draw the inference that the IAA did not consider the exercise of its discretion under s.473DC(3) of the Act.
However, even if the IAA did fail to consider the exercise of its discretion in this regard, no jurisdictional error is thereby established. In a letter sent to the Applicant dated 15 March 2016 (but which must be a typographical error as the letter invited the Applicant to an interview to occur on 7 March 2016) inviting him to an interview with the Delegate, the Department put him on notice that:
The officer making the assessment (the delegated officer) will consider the recording of the interview (if you consent to the interview being recorded), and all other information you have provided the department, and may make that assessment without further contact with you.
Accordingly, the Applicant ought reasonably to have been aware that the Delegate could have regard to the evidence that the Applicant had given during the Arrival Interview and the IMAE Interview, especially as he himself had referred to the IMAE Interview in his Supplementary Statement: see [13] above. Further, the Applicant’s migration agent was fully aware that the credibility of the Applicant’s claim to have been arrested, detained or harmed by the Sri Lankan authorities was in issue: see [18] above.
Further, the Arrival Interview is specifically referred to in the Decision Record of the Delegate and both the Delegate and the IAA rejected the Applicant’s claim that he had been interrogated and tortured by the Sri Lankan authorities on the basis of inconsistencies in his evidence and the veracity and persuasiveness of the evidence he had given. There was no new dispositive issue that arose before the IAA for the first time which had not arisen before the Delegate, but rather each considered and rejected the Applicant’s claim that he had been interrogated and tortured by the Sri Lankan authorities for three days.
In my view this case bears no resemblance to the situation considered by the Full Court in CRY16 and the IAA did not commit jurisdictional error by legally unreasonably failing to consider to exercise, or to actually exercise, the power in s.473DC(3) of the Act.
Finally, with respect to Ground 1(f) there is not a skerrick of evidence with a tendency to suggest that the IAA or its decision was affected by a reasonable apprehension of bias.
Conclusion
The Applicant has failed to establish that the decision of the IAA is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
A Final Matter - Adjournment Application
At the hearing I took the Applicant as impliedly seeking an adjournment on the basis that he wanted to retain another lawyer.
The simple fact of the matter is that his Application in this Court was filed by a well-known immigration lawyer, but a Notice of Intention to Withdraw as Lawyer was given a few months later on 9 February 2017 and a Notice of Withdrawal as Lawyer was filed on 6 March 2017.
The matter came back before me in Court on 6 October 2017 when the Applicant appeared in person and the matter was set down for hearing on 6 February 2019. Accordingly, the Applicant had a period of some 16 months to retain a lawyer to appear for him at the hearing on 6 February 2019.
Further, the application for an adjournment was made very late at the hearing. In all the circumstances I did not consider it in the interests of justice to grant an adjournment, for reasons including because I was heavily listed until mid-2020, and if I had adjourned this matter I would have had to delay the hearing until mid-2020 or displace another case which had already been set down for hearing.
Accordingly, I refused any adjournment.
However, to obviate any disadvantage caused by the Applicant not having the services of a lawyer, I ordered as follows at the conclusion of the hearing:
2.Grant leave to the Applicant to file and serve Written Submissions prepared by a lawyer to be retained by him by 7 March 2019, with such Written Submissions not to exceed seven pages and to be confined to supporting the Ground relied upon by the Applicant in his Application filed on 27 October 2016.
No such Written Submissions were received by the Court.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 5 December 2019
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