DGL17 v Minister for Immigration
[2017] FCCA 2872
•24 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DGL17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2872 |
| Catchwords: MIGRATION – Application for Safe Haven Enterprise (subclass 790) visa – whether Immigration Assessment Authority decision was unreasonable – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a), 36(2)(aa), 65, 473CB, 473DD(1) |
| Cases cited: BBS16 v The Minister for Immigration [2017] FCCA 4 DCD16 v Minister for Immigration & Anor [2017] FCCA 1303 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 211 |
| Applicant: | DGL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 700 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 21 November 2017 |
| Date of Last Submission: | 21 November 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 24 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Burrow |
| Solicitors for the Applicant: | Arc Migration |
| Counsel for the First Respondent: | Ms Wheatley |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 21 July, 2017 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 700 of 2017
| DGL17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks review of a decision of the second respondent made under Part 7AA of the Migration Act 1958 (Cth), that affirmed a decision of a delegate of the first respondent to refuse the grant of a Safe Haven Enterprise (subclass 790) visa to the applicant.
A Safe Haven Enterprise visa is a type of protection visa. To be successful in his application for the visa the applicant needed to establish that he had a well-founded fear of persecution for the purposes of s.5J of the Migration Act 1958 (Cth). He was unable to do that before either the first respondent’s delegate or the second respondent and so his application failed.
Briefly, the applicant contends that the second respondent’s decision is attended by jurisdictional error because its decision is unreasonable in the legal sense described by the High Court of Australia in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The applicant’s written submissions contend that the second respondent’s decision was so unreasonable that no decision maker acting reasonably could have made it.
The first respondent opposes the application. The second respondent has entered a submitting appearance.
Background
The applicant is a citizen of the Republic of Sudan. He departed Sudan lawfully in December, 2012. On 17 February, 2013 he arrived at Christmas Island as an unauthorised maritime arrival.
On 31 May, 2016 the applicant applied for a Safe Haven Enterprise (subclass 790) visa. For the purposes of that application he made a statutory declaration on 29 October, 2015 in which he set out his claims and the evidence that he could give to support them. In that document, amongst other things, he claimed that:
a)he is of Sudanese ethnicity and is a Muslim from Darfur;
b)he lost his mother and father in 2003 or 2004 during the war in Darfur. He was unsure if they were still alive. He and his siblings went to live with his grandmother;
c)between 2001 and 2012, he was self-employed as a vegetable seller at the Khartoum Markets, in Khartoum. He and his brother both worked at the market because their grandmother was old and could not provide for them;
d)it was dangerous for them to work at the market because the police and the government would always target them, assault them, take their vegetables and put them into the police vehicle. This happened often, sometimes daily, because the applicant and his brother were from Darfur and did not have enough money to buy a market stall;
e)the police and the government knew that they were from Darfur because of their different skin colour, stature and the way the applicant looks, a claim he repeated on three occasions in the statutory declaration;
f)he left Sudan in December, 2012 once he had saved enough money. He feared that on return to Sudan he would be arrested, tortured, placed in prison or killed and therefore it was impossible to return to Sudan.
On 13 March, 2017 he attended an interview with a delegate of the first respondent. On 10 May, 2017 a delegate of the first respondent refused to grant the applicant the visa.
On 15 May, 2017 the applicant’s case was referred to the second respondent in accordance with the “fast-track” process provided for in Part 7AA of the Migration Act.
On 14 June, 2017 the applicant retained a registered migration agent to act on his behalf in relation to the review. Subsequently, on 16 June, 2017 his agent sent written submissions and another statutory declaration, reference letters and country information to the second respondent. That material was received by the second respondent on 20 June, 2017.
On 13 July, 2017 the second respondent affirmed the delegate’s primary decision.
The applicant makes no complaint about the way in which the second respondent conducted the review or the way in which the second respondent treated the submissions and other information that the applicant’s migration agent gave to it on 16 June, 2017. In this respect, the solicitors for the first respondent drew the applicant’s solicitors’ attention (by the delivery of the applicant’s solicitors written submissions) to the recent decision of the Full Court of the Federal Court of Australia in BBS16 v The Minister for Immigration [2017] FCCA 4 and the examination undertaken by the Full Court of s.473DD(b) and the obligations cast upon the second respondent by that section when dealing with new information on a Part 7AA review. Counsel for the applicant expressly eschewed any argument based upon the decision in BBS16 and the way in which the second respondent determined what use it could or should make of the material furnished to it by the applicant’s solicitors under cover of their letter of 16 June, 2017.
Given that there is no contention about the accuracy of the first respondent’s summary of the second respondent’s reasons for decision, the following summary is drawn from the first respondent’s written submissions but supplemented, where necessary, having regard to my own consideration of the second respondent’s reasons and the matters raised in oral argument.
The second respondent had regard to the material referred to it under s.473CB of the Migration Act. The second respondent referred to submissions and additional information provided by the applicant’s migration agent. It determined not to take any of that information into account. As I have recorded, the applicant takes no issue with the second respondent’s approach.
In relation to the applicant’s claims for protection, the second respondent considered that many of the applicant’s claims to have suffered mistreatment and harassment by the authorities had not been presented consistently over time. The second respondent said:
10. The applicant does not claim to have ever been politically active; nor does he claim to have been accused of being politically active, or of supporting rebel groups operating in Darfur. He claims that he was targeted in Khartoum because he was identified as a Darfuri by government officials. However, many details of the applicant’s claims about the circumstances in which he experienced mistreatment and harassment by government authorities have not been presented consistently over time.
In the context of assessing the applicant’s credibility, the second respondent said:
24. As noted above, the applicant’s evidence has been inconsistent and contradictory in respect of very significant matters. I have considered whether the many gaps and inconsistences in the evidence result from some particular difficulty arising from the applicant’s personal circumstances that has prevented him from providing a coherent and consistent account. I accept that he is not highly educated, he comes from a conflict ridden country and that the process of applying for asylum is stressful. However, the SHEV application was prepared with the assistance of a volunteer legal representative, and no particular difficulties have been identified at any stage, including before the IAA, to explain the many inconsistencies and deficiencies in his account, which were raised with him at the SHEV interview. Having regard to the applicant’s known circumstances, but in the light of the problems with his evidence, I am not satisfied as to the applicant’s overall credibility and I do not consider that he has provided a truthful account of his circumstances.
That is not to say that the second respondent rejected all that the applicant had to say. It accepted that the applicant’s parents were born in Western Sudan and that the applicant was a member of the tribe nominated by him. The second respondent considered it plausible that if the applicant’s parents had been living in Western Sudan in 2003, they may have disappeared and may be dead, as the applicant had claimed.
The applicant’s primary claim was that in Sudan he faced harassment and persecution because he was from the Darfur region of Sudan. However, the second respondent found that the applicant was not born in Western Sudan and had not ever lived there or in Darfur. It was satisfied that the applicant had spent the majority of his life in Khartoum. It used the Khartoum region for the purposes of assessing his claims to protection in relation to that area.
Consistently with country information consulted by the second respondent it considered that Darfuris in Khartoum faced a moderate risk of violence and discrimination based on their ethnicity and actual or imputed political opinion.
However, the second respondent considered that the applicant’s evidence as to how or why he was readily identified as Darfuri was inconsistent and unclear. I will return to this aspect of the matter when I deal with the applicant’s argument, but for present purposes it is sufficient to record that the second respondent found that the applicant’s evidence about this subject was inconsistent. The second respondent rejected the applicant’s claim that he could be easily recognised as a person of Darfuri origin.
The second respondent considered that the applicant had not provided a consistent or credible account of the harassment he claimed to have encountered in Khartoum by reason of his Darfuri ethnicity. The second respondent noted that the applicant had given inconsistent information about his work history and whether his brother had worked with him.
The second respondent was impressed by inconsistencies in the applicant’s claims about the harm he had faced in his work at the markets. In the applicant’s statutory declaration submitted with his visa application, he stated that it was “incredibly dangerous” for him and his brother to work at the market because they were targeted by the police and government security forces. However, it also considered the applicant’s evidence during the application interview that he himself had never been detained and that he had an appropriate licence to sell vegetables in the market and was not targeted because he was operating illegally.
The second respondent thought the applicant’s evidence to be vague and somewhat incoherent. The second respondent expressed difficulty with forming a clear picture of the applicant’s claims at all. However, the second respondent was willing to accept that the applicant had worked selling vegetables in the market but did not accept that this was the applicant’s sole occupation or source of income over the entire period from 2001 to 2012. It accepted that the applicant may have encountered some harassment by council officials and possibly the police as a vendor, but did not accept that raids, beatings, or confiscation of the applicant’s goods happened on a daily basis or several times a week over the period of eleven years. The second respondent did not believe that if the applicant had faced beatings and confiscation of his goods daily, he would not have returned to labouring work. It considered that the applicant would have been able to provide a more detailed and coherent version of the claimed events if he was telling the truth.
The second respondent was not satisfied that the applicant had presented a credible account indicative of his past experience:
31. I have considered DFAT’s assessment that Darfuris in Khartoum face a moderate risk of discrimination and violence. However, I do not consider that the applicant has presented a credible account indicating that this has been his past experience. The applicant has not provided credible evidence of having experienced any harm, violence or discrimination in Khartoum, including as a vegetable seller. As discussed above, I am not satisfied that the applicant suffered the level of harassment and mistreatment that he claims to have, or that any harassment he did face while selling vegetables was because of his origin in Western Sudan. I do not accept the claim raised at a late stage of the SHEV interview, that he was beaten and harassed in his suburb. This claim contradicted his earlier evidence that he had no problems apart from harassment while selling vegetables, and appeared to have been raised only to counter the concerns raised by the delegate as to why he did not return to labouring to avoid the claimed harassment in the market.
The second respondent was not satisfied that the applicant had in the past suffered serious harm as a person from Western Sudan, as a Darfuri or for any reason:
On the basis of the evidence before me, I am not satisfied that the applicant has, in the past, suffered serious harm, as defined, as a person from western Sudan, as a Darfuri, or for any of the reasons in s.5J(1)(a) of the Act. Nor am I satisfied that there is a real chance that he would, in the reasonably foreseeable future, suffer serious harm for those reasons.
The second respondent considered the applicant’s claims as a “failed asylum seeker” against the country information that was available to the second respondent. It considered that the applicant left Sudan legally using his own passport and that if he were to undergo any routine investigation on return to Sudan he would not be identified as a person of interest (citations omitted):
35. According to the UK Home Office returning individuals who are identified as failed asylum seekers - either because they are travelling on an emergency travel document or are under escort - may be detained for up to 24 hours for investigation into prior criminal or other “nefarious” activity. If determined to be a person of interest they may be questioned by security officials. The applicant left Sudan legally using his own legally obtained passport; he does not claim to have been involved in criminal or other “nefarious” activity and I am satisfied that if he were to undergo any routine investigation on return he would not be identified as a person of interest. I am satisfied that he would be released relatively quickly and would not be subject to further scrutiny by security officials. The country information that is before me does not indicate that there is a real chance that a person would be subjected to mistreatment amounting to serious harm as part of this process
The second respondent found that the applicant did not meet the requirements of the definition of a refugee in s.5H(l), and did not meet s.36(2)(a) of the Act. Having regard to its findings of fact, it found that there was not a real risk that the applicant would suffer significant harm and therefore he did not meet s.36(2)(aa) of the Act either.
Grounds of review
The only ground of review specified in the application to this Court is:
1. The Immigration Assessment Authority and the delegate of the Minister for Immigration and Border Protection erred in law in making his decision.
Even if the general allegation made in that ground of review is made out, that of itself is insufficient to secure the applicant the relief that he seeks. This Court has no jurisdiction to review the decision of the first respondent’s delegate. Further, establishing that the second respondent “erred in law” does not necessarily establish that there has been a jurisdictional error. The existence of a jurisdictional error is critical in the context of the present application.
As explained, however, in the applicant’s written submission and in oral argument, his claim is that the second respondent’s decision is legally unreasonable in the sense explained in Minister for Immigration v Li (above).
The first respondent argues that the applicant’s submissions confuse the concepts of illogicality and irrationality as explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 211 and concepts of unreasonableness as explained in Li. The first respondent argues that because the applicant here seeks to impugn factual findings of the second respondent, rather than the exercise of a discretion, the relevant concept is illogicality and irrationality rather than unreasonableness.
Initially, much like in DCD16 v Minister for Immigration & Anor [2017] FCCA 1303, I thought that the first respondent’s submissions seem to misapprehend the thrust of the applicant’s submissions. Even though no question of the exercise of a discretion will arise in the context of the grant of a visa under s.65 of the Migration Act, nonetheless unreasonableness might be the product of another underlying jurisdictional error by a decision maker, such as illogical fact finding. The position is explained by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in respect of which special leave has been refused: SZUXN v Minister for Immigration and Border Protection [2017] HCASL 8):
49. There may be circumstances where illogicality or irrationality in the decision making process may constitute or justify a finding of an underlying jurisdictional error. A Tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction. A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power.
However, the applicant, by his counsel, made it clear that his argument was based upon unreasonableness as explained in Li. In any event, notwithstanding that, the applicant is critical of the fact finding by the second respondent. He argues that the second respondent was unfairly critical of his evidence concerning the basis upon which he might be identified as a Darfuri. He argues that the second respondent took significant issue with the fact that the applicant failed to have some in-depth knowledge or ability to know how the Government engaged in its targeted persecution of Darfuris. He argues that such criticism is unwarranted, unreasonable and demonstrative of a failure to appreciate “certain realities of living in a country where persecution is an active measure undertaken by the government of the country from the President down”.
The applicant argues that in an unreasonable way, the second respondent “drew on the applicant’s lack of knowledge to support further adverse findings of credibility. Basing such further criticism on an unreasonable assessment demonstrates findings and a decision that was unreasonable.” He argues that “It is with respect to this line of reasoning that demonstrates the decision maker acted unreasonably in rejecting arguably obvious risk of a person with the applicant’s ethnicity being returned to a country whose president is wanted by the International Criminal Court. To decide that he could not be identified and would not be persecuted is a finding that is irrational, illogical and unreasonable.”
However, in my view, the approach of the second respondent to the issue highlighted by the applicant is entirely unremarkable. The second respondent said (citations omitted):
27. As noted above, the applicant’s evidence as to why or how he was identified as a person from Western Sudan by the security forces who targeted him in Khartoum was inconsistent and not clear. In his written claims he stated that he was identified because of his appearance, while he stated at the SHEV interview that he did not know how he was identified and that he himself was unable to distinguish one tribe from another. He suggested that the security forces had special knowledge or special ways of identifying Darfuris, but he did not know what these were. Country information that was considered by the delegate states that there has been considerable racial mixing of the Arab and African tribes in Darfur, and that many members of the Arab tribes are African in appearance - according to one source the Misseriya tribe is “physically assimilated, an ancestry visible in skin tones that are darker than those of most other Arab Sudanese, as dark as many southerners”.
In my view, the second respondent accurately summarised the evidence before it and stated nothing more than what was obvious. The applicant’s evidence on the issue of how the authorities identified him as from Dafur was inconsistent. In his statutory declaration made on 29 October, 2015 he said:
11. It was incredibly dangerous for my brother and me to work and sell vegetables in the Khartoum Markets because the police and the government would target us; they would assault us, take our vegetables, and humiliate us. They did this because we are from Darfur, and we did not have enough money to buy a shop which helps to escape their attention. They know that we are from Darfur because of our different skin colour and stature.
…
17. I was forced to leave Sudan because I was harmed by the police because I am from Darfur; they target me because of where I am from, and they know this because of the colour of my skin and the way I look.
…
23. I know that the reason the police targeted me is because I am from Darfur. The police and the government don’t like people from Darfur because of the war. I know this because they targeted other people in my community who were also from Darfur. As I have said, they know that we are from Darfur because of our stature, and our skin colour.
(my emphasis)
It was not suggested that the second respondent’s reasons were incorrect when it recorded that:
… at the SHEV interview that he did not know how he was identified and that he himself was unable to distinguish one tribe from another. He suggested that the security forces had special knowledge or special ways of identifying Darfuris, but he did not know what these were.
The matters stated by the applicant in his statutory declaration were inconsistent with what he stated in his visa application interview. That is not a matter of criticism, but rather an observation about the evidence. It was the second respondent’s task to evaluate the evidence. That is what the second respondent was doing when it made those observations about which the applicant is now critical.
Having identified the inconsistency, the second respondent went on to consider the country information available to it that touched upon the applicant’s claim that he could be identified from his appearance and then made the following finding:
28. Based on this information, I am not satisfied that the applicant was or would be readily identifiable as a person of Darfuri origin. He was not born in western Sudan and has never lived there. His tribe is Arab and the applicant is an Arabic speaker. The applicant has not provided a persuasive account of the means used by the authorities to identify and target him as a Darfuri. I do not accept that the security forces have special secret ways of identifying Darfuris, as he suggested at the SHEV interview; and the information cited here suggests that, contrary to his assertion in his written claims, it would probably not be possible to identify him on the basis of his appearance and skin colour. The problems in the applicant’s evidence about how and why he was targeted leads me to doubt the veracity of his claim to have faced mistreatment in Khartoum because he was identified as a person from Western Sudan.
The applicant argues that in the present matter the decision maker could not have reasonably rejected the risk faced by the applicant should he be returned to Sudan. He claimed to be a Darfuri from Western Sudan and claimed to be known to the authorities. He had work as a seller of produce in Khartoum and he was treated in a discriminatory fashion, he says, due to his particular ethnicity and the authorities were complicit or took no action to protect him. He argues that he was persecuted and either through active participation or failure to protect him from it, he now has a well-founded fear of persecution for the purposes of s.5J of the Migration Act. He points out that whilst the applicant recognises that the second respondent found certain inconsistencies and determined to give little credibility to the applicant’s claims, there does not appear to be any dispute regarding “the conflict torn region in Sudan and the mistreatment of those of Darfuri ethnicity”.
However, the second respondent’s reasoning is exposed in [30] – [32] of its reasons:
30. I am prepared to accept that the applicant has worked selling vegetables in the market, but I do not accept that his was his sole occupation or source of income over the entire period from 2001 to 2012. I also accept that the applicant may have encountered some harassment by council officials and possibly the police as a street vegetable vendor, however, I consider that he has exaggerated the frequency and severity of the claimed raids. I do not accept that raids, beating and confiscation of the applicant’s goods happened on a daily basis or several times a week over a period of eleven years. Accepting his evidence that he had previously worked in another field, construction, where he did not face harassment, I do not believe that had the applicant faced beatings and confiscation of his goods daily, or even several times a week as he has claimed, he would not have returned to labouring work. I do not accept that the harassment included detention or severe physical mistreatment because I consider that if it had, the applicant would have returned to alternative employment in the construction industry. Moreover, I consider that the applicant would have been able to provide a more detailed and coherent account of the claimed events, if he were telling the truth.
31. I have considered DFAT’s assessment that Darfuris in Khartoum face a moderate risk of discrimination and violence. However, I do not consider that the applicant has presented a credible account indicating that this has been his past experience. The applicant has not provided credible evidence of having experienced any harm, violence or discrimination in Khartoum, including as a vegetable seller. As discussed above, I am not satisfied that the applicant suffered the level of harassment and mistreatment that he claims to have, or that any harassment he did face while selling vegetables was because of his origin in Western Sudan. I do not accept the claim raised at a late stage of the SHEV interview, that he was beaten and harassed in his suburb. This claim contradicted his earlier evidence that he had no problems apart from harassment while selling vegetables, and appeared to have been raised only to counter the concerns raised by the delegate as to why he did not return to labouring to avoid the claimed harassment in the market.
32. The applicant does not claim to have been politically active, or to have ever been accused of being involved with Darfuri rebel or opposition groups. He is not a student and does not claim to have ever participated in protests against the government. The country information, considered as a whole, indicates that it is Darfuris in these categories who are most at risk of harm in Khartoum. Given that the applicant has not presented a credible account of having experienced harm of any kind as a Darfuri in Khartoum; given that his connection with Darfur is slight as he has never lived there; given that he belongs to an Arab tribe which, at least when the conflict broke out, was on the government’s side, and he is not a member of one of the three African tribes whose members are associated with the rebel and opposition groups and who are clearly targeted; and given his own highly unpersuasive evidence as to how he would be identified as a Darfuri, considered in the light of the country information indicating that Arab tribes from Western Sudan are not readily identifiable by their appearance, I am not satisfied that he would be characterised as a Darfuri by security agencies or other government authorities, and subjected to harm or discrimination on that basis. There is no basis arising from the credible evidence to consider that this situation might change in the reasonably foreseeable future, such that the applicant would face a real chance of harm in the future which he has not in the past.
(my emphasis)
Conclusion
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Crennan and Bell JJ pointed out at 648 [131]:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
There was nothing illogical or irrational about the second respondent’s finding as to the jurisdictional fact that it was required to consider. Nor was there any illogicality or irrationality about its process of reasoning. The second respondent undertook a careful and thorough review of the material before it and considered the applicant’s particular circumstances. It concluded that it could not be satisfied that there was a real chance that the applicant would, in the reasonably foreseeable future, suffer serious harm for the reasons he had advanced. Others may have come to a different view than that reached by the second respondent, but that is not to the point.
I am not satisfied that the Tribunal’s decision is unreasonable as claimed by the applicant, nor is it unreasonable because it is the product of a process which itself was flawed because of irrational or illogical fact finding or reasoning. The application must be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 24 November 2017
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