DHP17 v Minister for Immigration and Anor (No.2)
[2019] FCCA 2248
•25 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHP17 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2019] FCCA 2248 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority dealt inconsistently with country information – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: BVZ16 v Minister for Immigration [2017] FCA 958 DHP17 v Minister for Immigration & Anor [2018] FCCA 1677 |
| Applicant: | DHP17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2319 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr M J Smith |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 24 July 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2319 of 2017
| DHP17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This matter returns to the Court on remittal from the Federal Court.[1] I had earlier dismissed the application at a show cause hearing ex tempore.[2] The proceedings concern an application for judicial review of a decision of the Immigration Assessment Authority (Authority) 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.
[1] DHP17 v Minister for Home Affairs [2019] FCA 15
[2] DHP17 v Minister for Immigration & Anor [2018] FCCA 1677
The following statement of background facts is derived from the submissions of the Minister filed on 8 August 2019.
The applicant entered Australia at Cocos (Keeling) Islands[3] as an unauthorised maritime arrival, which meant that he was precluded from making a valid visa application under s.46A(1) of the Migration Act 1958 (Cth) (Migration Act). 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 enterprise visa (SHEV).[4] The applicant subsequently lodged an application for a SHEV,[5] which was refused by the delegate on 29 November 2016.[6]
[3] Court Book (CB) 9
[4] CB 37-41
[5] CB 49
[6] CB 189-201
The delegate’s decision was referred to the Authority, together with the material required by s.473CB.[7] That section is in the following terms:
[7] CB 203
(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[8] 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 Liberation Tigers of Tamil Eelam (LTTE);
d)by reason of his illegal departure from Sri Lanka; and
e)on account of being a failed asylum seeker.
[8] CB 249 [14]
Each of those claims were considered and rejected by the Authority.[9] The claims were also considered, and rejected, in the complementary protection context.[10]
[9] CB 249-256 [18]-[59]
[10] CB 256-257 [61]-[65]
Accordingly, the decision under review was affirmed.
The operation of the Authority
The Authority is a body that is part of the Migration and Refugee Division of the 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 (ss.473DA-473DF).
In general terms, the legislative scheme: [11]
obliges the IAA 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.[12] The review is generally conducted on the papers and focuses on the review material provided by the Secretary to the IAA.
[11] Minister for Immigration v AMA16 (2017) 254 FCR 534 at [19], reproduced in Minister for Immigration v BBS16 [2017] FCAFC 176 at [30]
[12] section 473DB(1)
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” (s.473DC), 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.
Of particular importance are the circumstances in which the Authority may have regard to “new” information that has been provided to it by the applicant in relation to the review. This matter is dealt with by s.473DD, which is in the following terms:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The operation of s.473DD was considered by White J in BVZ16 v Minister for Immigration.[13] Relevantly, his Honour stated as follows at [9]:
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
[13] [2017] FCA 958
The correctness of White J’s approach was confirmed by the Full Federal Court in BBS16 at [102].
In the present case, the applicant drew the Authority’s attention to four pieces of information, namely:
a)a submission dated 24 December 2016;[14]
b)a submission dated 28 December 2016;[15]
c)an online article (identified by hyperlink in the first submission) in which it is alleged that Tamil government officials had been verbally assaulted and subjected to extreme humiliation by Buddhist monks;[16] and
d)a report prepared by the UN Committee Against Torture entitled “Concluding Observations on the fifth periodic report of Sri Lanka” (UNCAT Report).[17]
[14] CB 247 [5]; CB 210
[15] CB 248 [11]; CB 227
[16] CB 212; CB 248 [9]
[17] CB 248 [10]; CB 213-242
Consistently with the decision of the Full Federal Court in Minister for Immigration v CLV16[18] at [50], 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.[19] It follows from this characterisation that the Authority did not consider that it was prevented from having regard to these two submissions.
[18] [2018] FCAFC 80
[19] CB 247 [5]
While the Authority concluded that the information referred to at [14(d)] above would be considered because of the existence of exceptional circumstances,[20] the Authority concluded that the information referred to at [14(c)] above would not be considered.[21]
[20] CB 248 [10]
[21] CB 248 [9]
In concluding that the information at [14(c)] above would not be considered, the Authority had regard to the quality of information that was provided (i.e. it was general country information that was not directed to the applicant’s personalised claims) and whether it was information that could have been provided to the delegate.[22] In other words, the Authority undertook the inquires required in both sub-paragraphs (i) and (ii) of s.473DD(b). The Authority noted that the new information related to a report that was published prior to the delegate’s decision and that no explanation had been given as to why it had not been put before the delegate. It is evident from the Authority’s approach that the making of those findings then informed the Authority’s conclusion about the absence of “exceptional circumstances” (the s.473DD(a) inquiry).[23]
[22] CB 248 [9]
[23] CB 248 [9]
It is not in dispute that this was the correct approach. As White J emphasised in BVZ16 at [9], the matters in paragraphs (a) and (b) of s.473DD are not to be considered in isolation of each other and the matters in paragraph (b) are likely to be highly relevant in determining the existence or otherwise of “exceptional circumstances” (the paragraph (a) inquiry). The only matter that could have been relevant to the existence or otherwise of “exceptional circumstances” was the quality of the information that was provided and whether it was “new” in a meaningful sense. Accordingly, no criticism of the Authority can be made of it considering “exceptional circumstances” through this prism.
Proceedings in the Federal Circuit Court and the Federal Court
The applicant commenced proceedings in this Court on 24 July 2017. His application contained three grounds of review.
On 26 June 2018, I dismissed the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).[24]
[24] DHP17 v Minister for Immigration & Anor op cit
The applicant sought leave to appeal. On 17 January 2019, the Federal Court granted the applicant leave to appeal and allowed the applicant’s appeal. The Federal Court ordered that the matter be remitted to this Court on all issues apart from Grounds 1 and 2.[25] As to why the matter should be remitted, the Federal Court stated:[26]
As to the third argument concerning the UNCAT Report I agree with the Court below that the reason given by the Authority for placing no weight (or implicitly doing so) was open to it in the sense that a lack of particularity is a rational basis for such a conclusion. However, that is not the end of the matter. The Court below did, with respect, appear to overlook one aspect of the Applicant’s argument. The Authority had placed reliance on a report presented by the Department of Foreign Affairs and Trade dated 24 January 2017 entitled ‘DFAT Country Report: Sri Lanka’ (‘DFAT Report’). The Applicant submitted in his grounds of review in the Court below that, as with the UNCAT Report which it declined to use, the DFAT Report also did not refer with particularity ‘to when certain occurrences occurred’ but the Authority had been content to rely upon it. In practical sense, this ground is one of inconsistency.
There are two issues which arise from this argument. The first is whether the approach of the Authority to the two reports is inconsistent when regard is had to their contents. The second is whether, assuming that it can be shown that the Authority did act inconsistently in its treatment of the two reports, this discloses a judicial review ground.
[25] DHP17 v Minister for Home Affairs [2019] FCA 15
[26] at [7]-[8]
Following remittal, I made procedural orders on 4 February 2019 for the purposes of the rehearing of the matter. By those orders, the applicant has had the opportunity to file and serve an amended application and additional evidence. He has not taken up that opportunity.
In those orders, I dispensed with the need for a show cause hearing and the matter proceeded to a final hearing on 15 August 2019. At that time, the applicant confirmed that he continues to rely upon his application filed on 24 July 2017 and the affidavit filed with it. I also have before me as evidence the court book filed on 17 November 2017.
I explained to the applicant the limited basis upon which this case was being reheard. He was unable to make any oral submissions on the issue, even after hearing counsel for the Minister. I was, however, assisted by comprehensive submissions made by counsel for the Minister, with which I agree.
Consideration
Given the limited terms of the remittal, the Court need only focus on the applicant’s third ground of review, which is in the following terms:
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 “reputable, 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 there 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)
The issue identified by the Federal Court, as suggested by the applicant in particulars (e) and (f), was whether it could be said that the Authority fell into jurisdictional error by failing to place reliance on the UNCAT Report (because it did not refer with particularity to when certain events occurred) in circumstances where a DFAT Report was relied upon even though it, too, did not refer with particularity to when certain events occurred.
The DFAT Report was treated by the Authority as providing evidence of the following general conditions that prevailed in Sri Lanka, and which were relevant to the applicant given his status as a Tamil person who had left Sri Lanka unlawfully:
a)the level of discrimination faced by Tamil persons;[27]
b)the process to which returnees are subject upon their arrival in Sri Lanka;[28] and
c)the penalties to which illegal departees will be exposed upon their return.[29]
[27] CB 252 [35]-[36]
[28] CB 253-255 [43], [44], [46], [50]
[29] CB 255 [53]-[54]
The UNCAT Report was also considered by the Authority.[30] It is therefore incorrect to say, as the applicant does in particular (e), that the Authority did not consider the contents of the report. Contrary to the premise underlying the applicant’s complaint, the Authority did not appear to doubt what was said in the UNCAT Report, namely that there were reports that persons with links to the LTTE had been abducted and tortured. In considering the report, however, the Authority noted that the UNCAT Report did not specify when such occurrences happened or the circumstances in which they occurred.
[30] CB 253 [39]
The UNCAT Report did not address the applicant’s personalised claims. At its highest, it contained information capable of supporting findings that detention and torture of suspected LTTE supporters had occurred in Sri Lanka. The lack of particularity or context in the UNCAT Report meant that there was nothing in it to link it to the applicant’s circumstances or history. Given this, the Authority was required to evaluate the applicant’s risk of harm (as a perceived LTTE supporter) by reference to the applicant’s circumstances and history alone. This is what the Authority did, concluding that the applicant would not be imputed to be a supporter of the LTTE and therefore would not be at risk of harm.
Contrary to the assumption underlying this contention, the Authority did not approach the two reports in an inconsistent manner. They were treated differently because they were in large part directed to different matters. Thus:
a)the DFAT Report spoke directly to the applicant’s circumstances as a Tamil person who had left Sri Lanka unlawfully and the generalised claims that were said to arise from these matters. While the applicant criticises the fact that the DFAT Report is not sufficiently particular, it appears to be the only evidence before the Authority that was relevant to those matters. Had the Authority disregarded it because it was insufficiently particular, the consequence would have been that the Authority would have had no evidence before it about those matters, an outcome which would not have assisted the applicant.
To put the point another way, the fact that the DFAT Report was, on the applicant’s case, insufficiently specific does not change the fact that the UNCAT Report contained the deficiencies already mentioned. If it be the case that both reports should “rise and fall” together (which, for the reasons already stated, is not correct) the consequence could be that neither report would be considered to have any probative value, a conclusion which would not assist the applicant; and
b)the UNCAT Report did not, given the absence of particularity or context, speak to the applicant’s particular circumstances or personalised claims. It was also irrelevant to the Authority’s decision given that the Authority did not accept that the applicant would be perceived to have any sort of link to the LTTE.
It is apparent that the Authority’s reference to the UNCAT Report at [39] derives from what is set out in that report at [11]:[31]
The Committee expresses concern at credible reports indicating that the practice of so-called "white van" abductions of Tamils has continued in the years following the end of the armed conflict. The Committee notes allegations of such practice documented by the Office of the United Nations High Commissioner for Human Rights (OHCHR) Investigation on Sri Lanka (OISL) during the period 2002-2011 as well as by nongovernmental organisations, which have identified 48 sites where torture allegedly occurred or which were used as transit points to torture locations, between 2009 and 2015. The Committee notes the information received that numerous individuals suspected of having a link, even remote, with the Liberation Tigers of Tamil Eelam (LTTE) have been abducted and then subjected to brutal torture, often including sexual violence and rape of men and women. According to the information received, such practices are carried out by both military and police in unacknowledged places of detention, which have included law enforcement headquarters, army and IDP camps, and "rehabilitation centres." While noting the State party's position that no secret torture camps or detention centres exist at present, the Committee regrets the failure of the State party to clarify whether it investigated these recent allegations of torture (arts. 2, 12, 13 and 16).
[31] CB 231-232
At [12] of its report, UNCAT urged the Sri Lankan authorities to ensure that all allegations of unlawful detention, torture and sexual violence by security forces are promptly, impartially and effectively investigated by an independent body.
It is apparent from those passages that UNCAT was not finding that the allegations reported to it were true. It was simply noting the allegations and calling for an investigation of them.
Secondly, the Authority did not dispute the allegations addressed in the UNCAT Report. On the contrary, to some extent, the applicant’s allegations of his own experiences in 2009 were consistent with the allegations referred to by UNCAT. The Authority at [23] accepted that the applicant was physically assaulted and called a “tiger” and required hospitalisation at the beginning of 2009. Importantly, in accepting that allegation, the Authority referred to the DFAT Report. The Authority referred to the same report at [25][32] in noting country information in reports of incidents of extra-judicial killing, disappearances and kidnappings for ransom. Further, the Authority at [41][33] accepted that there is credible evidence of serious harm being perpetrated against Tamils associated with, or perceived to be associated with, the LTTE by the Sri Lankan authorities in pre and post war Sri Lanka, by reference to a US Department of State Report on Human Rights in Sri Lanka published in 2015.
[32] CB 250
[33] CB 253
The Authority was, however, not satisfied that the applicant has a profile that would expose him to a real chance or serious risk of harm and was likewise not satisfied that such a profile would be imputed to him on return to Sri Lanka.
It follows, in my view, that the Authority did not treat the UNCAT Report as inconsistent with other country information before it, in particular the DFAT Report and the US State Department Human Rights report. The UNCAT Report was, however, because of its generality, not of assistance to the Authority in determining the applicant’s future risk profile. In making that determination, the Authority did not act inconsistently in dealing with the UNCAT and DFAT Reports.
I reject the premise underlying the applicant’s contention. The UNCAT and DFAT Reports were not treated in an inconsistent manner but were evaluated, having regard to their probative value assessed in the light of the applicant’s claims. In view of this conclusion, it is unnecessary to consider whether, had the Authority made an error, it would have been jurisdictional.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 25 September 2019
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