DHR17 v Minister for Immigration

[2018] FCCA 262

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHR17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 262

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority erred in its application of the “real chance” test as to whether the applicant faced a real chance of persecution by Sri Lankan authorities for a Convention-related reason – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 5J, 31, 36, 46A, 65, 473BA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473FB
Migration Regulations 1994 (Cth), reg.2.01

Cases cited:
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant: DHR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2321 of 2017

Judgment of: Judge Emmett

Hearing date: 6 February 2018

Date of Last Submission: 6 February 2018

Delivered at: Sydney

Delivered on: 6 February 2018

REPRESENTATION

Counsel for the Applicant: Mr Ben Zipser, by Direct Access

Counsel for the Respondents: Mr Martin Smith

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2321 of 2017

DHR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority (“the IAA”) dated 11 July 2017, dismissing an application for review by the IAA of a decision of a delegate of the first respondent (“the Delegate”) made on 19 October 2016 refusing the applicant a Safe Haven Enterprise (subclass 790) visa (“Protection visa”).

2. The applicant claims to be a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from the Sri Lankan military and authorities in Sri Lanka.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of the Delegate, and a summary of the IAA’s review and decision.

Background

1. The applicant arrived in Australia as an Irregular Maritime Arrival (“IMA”) on 10 September 2012 having departed illegally from Sri Lanka.

2. Pursuant to s.46A(1) of the Act, the applicant was barred from making a valid application for a Protection visa as he had entered Australia as an IMA and was therefore an unlawful non-citizen.

3. On 20 November 2015, the applicant lodged an application for a Protection visa with the Department of Immigration and Border Protection (“the Department”).

4. On 4 December 2015, the Department wrote to the applicant informing him that his application for a Protection visa had been assessed as a valid application as the Minister had exercised his power under s.46A(2) of the Act to lift the bar under s.46A of the Act.

5. On 19 October 2016, the Delegate refused the applicant’s application for a Protection visa.

6. On 11 July 2017, the IAA handed down its decision affirming the decision of the Delegate not to grant a Protection visa.

7. On 24 July 2017, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a 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, 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, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) 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.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Part 7AA of the Act outlines the fast track review process in relation to certain protection visa decisions. Under Part 7AA of the Act, s.473BA of the Act provides as follows:

   “Simplified outline of this Part

   This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

   …”

8. Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the Delegate’s decision is made.

9. Section 473CB of the Act provides as follows:

   “Material 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.”

10. Section 473CC of the Act provides as follows:

    “Review of decision

    (1)  The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

    (2)  The Immigration Assessment Authority may:

    (a)  affirm the fast track reviewable decision; or

    (b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.”

11. Section 473DA of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to fast track reviewable decisions. That section provides as follows:

    “Exhaustive statement of natural justice hearing rule

    (1)  This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

    (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

12. Subsections 473DB(1)(a) and 473DB(1)(b) of the Act provide that the IAA must review a decision referred to it under s.473CA of the Act by considering the review material provided to it under s.473CB without accepting or requesting new information; and, without interviewing the referred applicant.

13. Pursuant to ss.473DC(1)(a) and 473DC(1)(a) of the Act, the IAA may, in relation to a fast track decision, get any documents or information that were not before the Minister when the Minister made the decision under s.65 of the Act and; that the IAA considers may be relevant. Section 473DC(2) provides that:

    “(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.”

14. Section 473DD of the Act provides as follows:

    “Considering 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.”

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his Protection visa application in which he stated:

   a)He is a Tamil from the Northern Province of Sri Lanka.

   b)His family was dislocated by the Sri Lankan civil war and some of his family members were killed in bombings.

   c)In 2004-2008, the applicant’s father provided voluntary administrative work for the Liberation Tigers of Tamil Eelam (“LTTE”) as he was threatened by the LTTE that he would otherwise have to take up arms.

   d)In 2007, the applicant’s brother was taken by the LTTE and worked as a driver for the LTTE. In 2009, the applicant’s brother was badly injured in shelling and has a damaged kidney, scarring and shrapnel in his body as a result.

   e)In 2008, the applicant’s sister was forcibly conscripted into the LTTE. She escaped three months later. The applicant and his family hid the applicant’s sister in a bunker when the LTTE came looking for her. The Sri Lankan Criminal Intelligence Division (“CID”) became suspicious of the applicant’s sister’s connection to the CID.

   f)In May 2009, the applicant and his family were captured by the Sri Lankan army and taken to a checkpoint where the applicant’s brother was identified and taken to a rehabilitation camp where he was detained until 2012. The applicant and the rest of his family were taken to a camp where the applicant was interrogated several times in relation to his connection to the LTTE. They were subsequently released from the camp in September 2010.

   g)The Sri Lankan authorities continued to question the applicant and his family, with his father being detained for three days and assaulted on one occasion. As the applicant’s father admitted his former connection to the LTTE, the authorities stopped targeting him.

   h)In October 2010, the authorities interrogated the applicant and he was detained for 1 week during which he was assaulted and tortured. After he was released, the applicant had to report daily to the authorities and obtain permission to travel, which continued until 2011 when the applicant relocated to the Eastern province of Sri Lanka to work. The applicant was permitted to relocate, however the authorities took his national identity card and told him he must report when required.

   i)In 2012, the applicant’s brother was released, however continued to be targeted and was taken for interrogation for 1 week.

   j)CID officers came to the applicant’s workplace in Eastern Province 3 times and he was required to report to the police once a month, during which the police officers would check his mobile telephone.

   k)In July 2012, the applicant returned to his home village to attend a Hindu festival presided over by his uncle. CID offers took the applicant and his brother for questioning. After half an hour they were released. The applicant immediately returned to Eastern province and made arrangements to leave Sri Lanka.

   l)Since the applicant arrived to Australia, the CID have looked for the applicant at his workplace and his parents’ home. In mid-2015, the CID took a group photograph of his family members. The CID told the applicant’s family that other Tamils had told the CID that the applicant and his brother are in Australia.

   m)After the applicant and his brother came to Australia, the CID’s interest in the applicant’s sister increased. In 2015, the applicant’s sister relocated to live in India.

The Delegate’s decision

1. On 27 July 2016, the applicant attended an interview with the Delegate.

2. The Delegate accepted that the applicant’s brother was driving vehicles for the LTTE and was subjected to substantial injuries from shelling. The Delegate also accepted that the applicant’s brother was detained at a rehabilitation camp for three years.

3. The Delegate accepted that the applicant was detained by the Sri Lankan Army in May 2009 and with his family entered a camp in Vavaniya in Sri Lanka during which time he was questioned by the authorities as part of a screening process to identify persons with links to the LTTE.

4. The Delegate found that the applicant had exaggerated his claims in relation to his father and sister’s roles with the LTTE. The Delegate also found that the applicant did not have a profile which would make him a target for future harm by the Sri Lankan authorities.

5. On 19 October 2016, the Delegate refused the applicant’s application for a Protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The IAA’s review and decision

1. On 26 October 2016, the IAA wrote to the applicant informing him that the Delegate’s decision had been referred to the IAA on 25 October 2016. In that letter, the IAA noted that the Department had provided the IAA with all of the documents considered relevant to the applicant’s case. The IAA also provided the applicant with a copy of Practice Direction for Applicants, Representatives and Authorised Recipients under s473FB of the Act. That Direction provided the applicant with information relating to the IAA review process.

2. The IAA noted that it gave the applicant the benefit of the doubt in relation to claims regarding his father, brother and sister’s involvement with the LTTE. The Delegate noted that the Delegate had previously found these claims to be inconsistent with country information. However, the IAA noted that it was not satisfied the applicant and his family were ‘staunch’ supporters of the LTTE.

3. The IAA accepted that the applicant’s father worked voluntarily for the LTTE in an administrative role. The IAA also accepted that the applicant’s brother and sister were forcibly recruited into the LTTE. The brother worked as a driver, was injured in 2009, rehabilitated and subjected to further questioning after his release in 2012.

4. The IAA accepted that the applicant and his family were placed in a camp in 2009 and remained there for about 1 year. The IAA accepted that the applicant and his father were questioned during that period and again after their release from the camp, and accepted that they were assaulted and tortured during that questioning. The IAA accepted that the applicant was subject to ongoing reporting requirements and restrictions on his movements.

5. The IAA noted that it accepted that the applicant departed Sri Lanka in fear of harm from the Sri Lankan authorities and that the authorities had continued to monitor the applicant’s family after he and his brother departed Sri Lanka. The IAA accepted that the applicant’s brother has been granted a protection visa in Australia and his sister had gone to India.

6. The IAA considered that since the applicant was interrogated in October 2010, he was only subject to monitoring by the Sri Lankan authorities. The IAA noted that given the applicant’s family connection to the LTTE, and that he is a young Tamil male from the Northern Province, it is consistent with relevant country information that the applicant would be subject to such monitoring.

7. The IAA considered that if the authorities genuinely considered the applicant to be connected to the LTTE, he would have been arrested or charged during the period of almost two years of monitoring to which he was subject prior to departing from Sri Lanka.

8. The IAA was not satisfied that the applicant has a profile that would bring him to the attention of the Sri Lankan authorities as someone suspected of being in the LTTE. The IAA noted that it referred to relevant country information in reaching its decision.

9. The IAA considered that if the applicant is returned to Sri Lanka there is more than a remote chance, and therefore a real chance, that he would again be subject to monitoring by the Sri Lankan authorities. However, the IAA found that any harm to the applicant from such monitoring would not amount to serious harm.

10. Having considered the applicant’s claims, the IAA found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Sri Lanka, that the applicant did not have a well-founded fear of persecution in Sri Lanka and for this reason the applicant was not a person to whom Australia owed protection obligations.

11. The IAA also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. Accordingly, the IAA found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Sri Lanka, there is a real risk that the applicant would suffer significant harm.

1. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the IAA affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Ben Zipser, of counsel. 

2. Mr Zipser was given leave by consent to rely on the grounds in an Amended Application filed in Court this morning. Mr Zipser confirmed that the only ground relied upon by the applicant in the Amended Application was Ground 1. Mr Zipser confirmed that Ground 2 was withdrawn. Ground 1 is as follows:

   “The Immigration Assessment Authority (“the IAA”) found at [16] that “Tamil civilians who live in former LTTE areas…are at a low risk of being detained or prosecuted.” The IAA concluded at [19] that it was “not satisfied that the applicant faces a real chance of serious harm from the Sri Lankan authorities for” a Convention-reason. On application of Australian case law, a “low risk of being detained or prosecuted” is greater than “ a real chance” of being detained or prosecuted. There is an inconsistency between the IAA’s finding at [16] that Tamil civilians in the position of the applicant “are at a low risk of being detained or prosecuted” and the IAA’s finding at [19] that it was “not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities.” The inconsistency reveals jurisdictional error by the IAA in applying the real chance test.”

3. At the heart of Mr Zipser’s submissions was a contention that the IAA’s finding that it was not satisfied that the applicant faces a real chance of serious harm from Sri Lankan authorities, was infected by jurisdictional error.

4. In support, Mr Zipser referred to the IAA’s statement in its decision record in summarising Department of Foreign Affairs and Trading (“DFAT”) Country Information before it, particularly as follows:

   “Both DFAT and the most recent UNHCR Guidelines assess that Tamil civilians who live in former LTTE areas in the North and East, including Tamils that provided low-level support to the LTTE or who have family members that are former members of the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted.”

   (emphasis added)

5. It is common ground that a “low risk” of harm is sufficient to reflect a real chance of harm (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 per Mason CJ and 429 per McHugh J; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.)

6. Mr Zipser conceded that the passage quoted above was not a finding in respect of the applicant. Rather, it was no more than a summary of the DFAT information.

7. A fair reading of the IAA’s reasons made clear that the IAA did not equate a low risk of harm as something less than a real chance of harm. Indeed the IAA specifically stated in relation to the applicant’s risk of monitoring by Sri Lankan authorities if he was to return, as follows:

   “I consider if the applicant is returned to Sri Lanka, there is more than a remote chance and therefore there is a real chance he again will be subject to such monitoring by the Sri Lankan authorities.”

8. Mr Zipser conceded that a “remote chance” was less than a “low risk.”

9. The IAA accepted that the applicant may face monitoring if returned to Sri Lanka and discrimination or harassment arising from monitoring. However the IAA was not satisfied that any harm to the applicant from such monitoring amounts to serious harm in terms of s.5J(5) of the Act.

10. The IAA concluded as follows:

    “For the above reasons, I am not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities for an imputed pro-LTIE or anti-Sri Lankan government political opinion and/or because of his age, he is a Tamil, he was born in Northern province, he lived in

    a L TIE controlled area, he was in an IDP, he worked in Eastern province, his father was a volunteer administrator for the LTIE, his sister was a forced recruit for the LTIE, his sister escaped from the LTIE, his brother was a forced recruit for the LTIE and worked as driver, his brother was injured, his brother was rehabilitated, his sister has gone to India, his brother has been granted protection in Australia, the applicant was interrogated in the past or subject to monitoring and/or the applicant ceased reporting to the Sri Lankan, now or in the reasonably foreseeable future, if he returns to Sri Lanka.”

11. The IAA was required to make findings as to whether the applicant faced a real chance of persecution for a Convention-related reason. Fairly read, the IAA’s decision record makes clear that the IAA considered the particular circumstances of the applicant when considering whether he faced a real chance of serious harm from the Sri Lankan authorities for a Convention-related reason.

12. In considering whether the applicant faced a real chance of harm from the Sri Lankan authorities for a Convention-related reason, the IAA had particular regard to its findings that the applicant’s father worked in an administrative capacity with the LTTE; that his siblings were forcibly recruited to the LTTE; that his sister escaped to India from the LTTE; that his brother had been granted protection in Australia; and that the applicant had been interrogated, investigated and subject to monitoring in the past and had been released.

13. In the circumstances, I do not accept the applicant’s contention that the IAA’s assessment of the evidence before it led it to conclude that the applicant was at a low risk of being detained or prosecuted. The IAA’s reasons read as a whole make clear that it understood that a real chance of harm was something more than a remote chance and may include a low risk of harm.

14. Mr Zipser then made a further argument, neither pleaded nor referred to in his submissions, that the IAA had erred in having regard to a finding made by it that was made on the balance of probabilities and formed part of the IAA’s assessment of the “real chance” test. That finding is as follows:

    “I am not satisfied, however, that even with all I have accepted above that the applicant has a profile which would bring him to the attention of the Sri Lankan authorities as someone suspected of being in the LTTE.”

15. Again, read fairly, the IAA’s lack of satisfaction that the applicant faces a real chance of serious harm from Sri Lankan authorities for a Convention-related reason was not based on that finding alone.

16. That finding by the IAA was made in the light of its consideration of the country information before it that Sri Lankan authorities did not impute every Tamil with a pro-LTTE political opinion; and that the Sri Lankan authorities have sophisticated intelligence-gathering techniques. The IAA clearly stated that it was mindful of information that people with significant links to the LTTE may still face a real chance of harm if returned to Sri Lanka. However the IAA made a clear finding that the applicant does not have such significant links and although had been investigated and subjected to ongoing monitoring in the past, was released.

17. In the circumstances it was open to the IAA to conclude for the reasons that it gave that it was not satisfied that the applicant faces a real chance of serious harm from the Sri Lankan authorities for a Convention-related reason.

18. The applicant’s contention that the IAA erred in its application of the “real chance test” is not made out.

Conclusion

1. Otherwise, a fair reading of the IAA’s decision record makes clear that the IAA understood the claims being made by the applicant and had regard to all material provided by the Department.

2. The IAA then made findings based on the evidence and material before it. Those findings of fact were open to the IAA on the evidence and material before it and for the reasons it gave. A fair reading of the IAA’s decision record makes clear that the IAA reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the IAA complied with its obligations under the statutory regime in the making of its decision, including the conduct of its assessment.

4. The IAA’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  6 February 2018