DHP17 v Minister for Immigration
[2018] FCCA 1677
•26 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHP17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1677 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.46A, 65, 473CB, 473DB, 473DD |
| Cases cited: Minister for Immigration v BBS16 [2017] FCAFC 176 |
| Applicant: | DHP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2319 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr M J Smith |
| Solicitors for the Respondents: | DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
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 2319 of 2017
| DHP17 |
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 7 July 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 legal submissions.
The applicant entered Australia as an unauthorised maritime arrival, which meant that he was precluded from making a valid visa application.[1] However, in November 2015, the Minister exercised the power under s.46A(2) of the Migration Act to permit the applicant to make a visa application and invited him to apply for a temporary protection visa or a safe haven visa.[2] The applicant subsequently lodged an application for a safe haven visa,[3] which was refused by the delegate on 29 November 2016.[4]
[1] Section 46A(1) of the Migration Act 1958 (Cth) (Migration Act)
[2] Court Book (CB) 37-41
[3] CB 49
[4] CB 189-201
The delegate’s decision was referred to the Authority, together with the material required by s.473CB.[5] That section is in the following terms:
[5] CB 203
473CBMaterial 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.
Before the Authority, the applicant claimed[6] that he faces a real chance or risk of persecution or significant harm:
a)on the basis of his Tamil ethnicity;
b)on the basis of a political opinion that he would be perceived to hold by reason of him being a young Tamil male from the North Western province of Sri Lanka;
c)by reason of his occupation as a fisherman which required him to travel in and out of areas controlled by the LTTE;
d)by reason of his illegal departure from Sri Lanka; and
e)on account of being a failed asylum seeker.
[6] CB 249 [14]
Each of those claims were considered and rejected by the Authority.[7] The claims were also considered, and rejected, in the complementary protection context.[8]
[7] CB 249-256 [18]-[59]
[8] CB 256-257 [61]-[65]
Accordingly, the decision under review was affirmed.
The Minister’s submissions also deal with the legal regime in which the Authority operates. Those submissions provide some useful background, and deal with the receipt of particular information in this case.
The operation of the Authority
The Authority is a body that is part of the Migration and Refugee Division of the Administrative Appeals Tribunal. It conducts “fast track reviews”, the scheme for which is provided in Part 7AA of the Migration Act. The way in which the Authority is to conduct a review is set out in Division 3 of Part 7AA of the Migration Act.
In general terms, the legislative scheme obliges the Authority to conduct its review of a fast track reviewable decision referred to it by considering the review material provided to it under s.473CB, without accepting or requesting new information and without interviewing the referred applicant.[9] The “review is generally conducted on the papers and focuses on the review material provided by the Secretary to the [Authority]”.[10]
[9] Section 473DB(1)
[10] Minister for Immigration v BBS16 [2017] FCAFC 176 at [19]
Although the review is performed by the Authority “on the papers”, the Authority retains a discretion to “get” relevant information which had not been before Minister’s delegate. It can also invite a person to give “new information”,[11] meaning “documents or information ... that”:
a)were not before the Minister when the Minister made the decision under s.65; and
b)the Authority considers may be relevant.
[11] Section 473DC
Of particular importance are the circumstances in which the Authority may have regard to “new” information that has been provided to the Authority by the applicant in relation to the review. This matter is dealt with by s 473DD, which is in the following terms:
473DDConsidering 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.
In the present case, the applicant drew the Authority’s attention to four new pieces of information, namely:
a)a submission dated 24 December 2016;[12]
b)a submission dated 28 December 2016;[13]
c)an online article in which it is alleged that Tamil government officials had been verbally assaulted and subjected to extreme humiliation by Buddhist monks;[14] and
d)a report prepared by the UN Committee Against Torture entitled “Concluding Observations on the fifth periodic report of Sri Lanka”.[15]
[12] CB 247 [5]; 210
[13] CB 248 [11]; CB 227
[14] CB 212; 248 [9]
[15] CB 248 [10]; CB 213-242
The Authority concluded that the 24 December 2016 submission (and, implicitly, the 28 December 2016 submission which merely restated the earlier submission) was not “new information” insofar as it addressed the claims that had already been made by the applicant to the delegate.[16] The Authority had regard to these submissions.
[16] CB 247 [5]
The Authority concluded that the information in [13(d)] would be considered because of the existence of exceptional circumstances.[17]
[17] CB 248 [10]
The Authority concluded that the information in [13(c)] above could not be considered.[18] The Authority was not satisfied that this information could not have been provided to the Minister before the decision was made[19] and it was not satisfied that this was credible personal information which was not previously known.[20] The Authority was also not satisfied that there were exceptional circumstances for considering this information.[21] This aspect of the Authority’s decision has not been challenged.
[18] CB 211 [6]
[19] Section 473DD(b)(i)
[20] Section 473DD(b)(ii)
[21] Section 473DD(a)
The current proceedings
These proceedings began with a show cause application, filed on 24 July 2017. The applicant continues to rely upon that application. There are three grounds in it:
1.The IAA failed to consider all of my claims and circumstances and not to do so was procedurally unfair.
Particulars
a.More details to be provided once the court book is made available to me.
2.The IAA failed to consider that the applicant had problem understanding the interpreter [33] and therefore was denied a fair hearing.
Particulars
a.I require sufficient time to transcribe the audio recording of the interview conducted with the delegate.
b.I believe the fact that I did not understand the interpreter would come to light once a full transcript is made available.
c.I would require a copy of the transcript to be included in the court book that the respondent would be publishing.
d.The transcript is the property of the respondent and therefore like the decision record of the IAA the transcript must be included in the court book due to the problems the applicant faced during the interview which has affected the applicant's capacity to present his case [33]
3.The IAA's failure to consider the relevant excerpt of the UNCAT report [39] as the UNCAT report "does not otherwise specify when such occurrences happened or the circumstances"
Particulars
a.The IAA was of the view that the UNCAT report dated December 2016 was from a "repntable, credible source" [10].
b.Though the IAA did consider the UNCAT report essential findings made by the reputable, credible source regarding "numerous individuals suspected of having a link, even remote, with the LTTE have been abducted and subjected to torture" [39] was disregarded (impliedly at least) because the UNCAT report does not otherwise specify when such occurrences happened or the circumstances.
c.The Publication (UNCAT report) was dated December 2016.
d.The more recent DFAT report that the IAA had considered was dated 24 January 2017.
e.The DFAT report too relied upon by the delegate not refer to when certain occurrences occurred.
f.Having accepted that the UNCAT report was reputable and credible essential contents referred their in ought to have been considered by the IAA as the report was published in December 2016. The UNCAT report failing to mention specific dates when certain incidents occurred ought not to have been a valid reason for not considering contents of this report.
(errors in original)
There is a short affidavit, which the applicant filed with his application, that I received.
I also have before me as evidence the court book, filed on 16 November 2017.
Only the Minister prepared written submissions in advance of today’s hearing.
I invited oral submissions from the applicant today. He struggled to say anything, even when prompted by me, in relation to the grounds. It is probable that he has received significant assistance in preparing his application.
The first ground of review cannot support an arguable case of jurisdictional error in the absence of particulars.
The second ground of review requires some analysis. The applicant asserted, from the bar table, that some issues were left out because of interpretation problems before the delegate. He said that the interpreter spoke too fast. The applicant asserts that, on at least one occasion, he asked the interpreter to repeat something. He conceded, however, that he did not request the repeat of information regularly.
The court book reveals that an issue of the applicant’s lack of education was raised by his agent during the protection visa interview. [22] The issue was dealt with by the Authority, apparently unprompted, at [31] to [33] of its reasons:
At the conclusion of the protection visa interview, the registered migration agent provided oral submissions. She stated that no adverse inferences should be drawn from the inconsistencies in the applicant’s evidence because there had been communication issues throughout the interview, evident in the applicant’s responses not correlating to the question asked. She stated these communication issues arose from the applicant having a kindergarten level of education and because he had been experiencing pain during the interview. She stated that the omission of the payment of a bribe by the applicant at the airport on return correlates with the country information which states corruption is the routine way business is done in Sri Lanka.
I have considered these submissions but I am not satisfied they sufficiently address the concerns I have regarding the changes in the applicant’s evidence. At the commencement of the protection visa interview, the delegate asked the applicant do you understand the interpreter, he stated “yes”. Approximately half way through the protection visa interview the delegate asked the applicant again whether he understood the interpreter, and he confirmed he did.
I do not accept that the applicant’s capacity to present his case was adversely affected by his capacity to understand the interpreter. Nor am I satisfied they can be attributed to his “kindergarten level” of education or pain. The applicant’s own evidence is that that he has completed year 8 of a secondary school level of education and to date no medical evidence has presented to indicate that the applicant is suffering from any medical conditions which affect his ability to communicate. I accept that at times the applicant’s answer did not correlate with the questions asked; however the communication issues only occurred when the applicant was speaking about his claims for protection. The applicant having no apparent difficulties when communicating information about his employment, education and family composition.
[22] See CB 192
It is apparent that the Authority listened to the sound recording of the interview before the delegate before reaching conclusions about the adequacy of the interpretation. I have not had that benefit. There is no evidence before the Court, either in the form of a sound recording or a transcript, of the delegate’s interview.
The applicant has had the opportunity, in these proceedings, to produce a transcript. He has not taken up that opportunity. In his ground 2, he asserts that it is the responsibility of the Minister or his Department to produce a transcript. I disagree. First, there is nothing to indicate that the applicant or his representatives even requested a copy of the sound recording. Secondly, it does not appear that anything particular was put before the Authority in relation to the adequacy of interpretation. That could have been done.
The provision, by an applicant, of a sound recording to the Authority would certainly not be new information. Neither, in my view, would the provision of a faithful transcript, derived from the sound recording, involve the presentation of new information. It would simply be the presentation of the same information in a different format. That was not done. Neither has it been done in these proceedings.
On the basis of the material before me, I am unable to identify an arguable case of legal error based on interpretation difficulties.
The third ground concerns an alleged failure by the Authority to consider a relevant part of a report from UNCAT. The Authority was not bound to consider that report, as it was new information. However, at [10] of its reasons,[23] it exercised its discretion to receive it. Further, at [39] of its reasons,[24] the Authority concluded that the report was at such a level of generality that it could not be of particular assistance to it. I see no arguable case of error by the Authority.
[23] CB 248
[24] CB 253
I otherwise agree with the Minister’s submissions on the grounds of review advanced.
First ground of review
In his first ground of review, the applicant contends that the Authority failed to consider all the applicant’s circumstances which led to a denial of procedural fairness.
The applicant has not pointed to any claims or circumstances that were not considered. In the absence of particularisation, this ground of review would fail.
In any event, the Authority did consider all the applicant’s claims and evidence.
Second ground of review
In his second ground of review, the applicant contends that the Authority failed to consider whether the applicant had a problem understanding the interpreter in the interview before the delegate.
This contention fails factually.
Is it true that the applicant’s agent had submitted during the course of the interview before the delegate that communication issues throughout the interview explained the inconsistences in the applicant’s evidence.[25] This submission, however, was at odds with the evidence given by the applicant during that interview that he understood the interpreter.[26] Based on this evidence, the Authority did not accept that the applicant’s capacity to present his case was adversely affected by any interpretation issues.
[25] CB 251 [31]
[26] CB 252 [32]
This ground would fail.
Third ground of review
In his third ground, the applicant takes issue with the Authority’s statement in [39][27] concerning the lack of detail or specificity in the UNCAT report to which the Authority was directed by the applicant.
[27] CB 253
There is nothing in the applicant’s complaint. While the UNCAT report referred to persons who had been abducted or tortured, the absence of any detail meant that it was not possible for the Authority to consider whether there were any parallels between the incidents referred to in the report and the applicant’s circumstances. Given this lack of specificity or particularity, the Authority did not fall into error in refusing to place much weight on the UNCAT report (which is implicitly what occurred).
This ground would fail.
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
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 forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 July 2018
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