DHW17 v Minister for Immigration - [2018] FCCA 3698

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHW17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3698

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473DD

Applicant:

DHW17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 390 of 2017

Judgment of:

Judge Vasta

Hearing date:

27 November 2018

Date of Last Submission:

27 November 2018

Delivered at:

Perth

Delivered on:

27 November 2018

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the name of the First Respondent be amended to reflect “Minister for Immigration, Citizenship and Multicultural Affairs”.
That the Applications filed 24 July 2017 and 23 October 2017 are dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 390 of 2017

DHW17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

On 12 July 2017, the Immigration Assessment Authority (“the IAA”) affirmed an earlier decision by the Department not to grant the Applicant, DHW17, a protection visa.
The Applicant is a citizen of Sri Lanka. He arrived in Australia on 17 August 2012, arriving at Christmas Island as an unauthorised maritime arrival. He lodged a safe haven enterprise visa application on 27 July 2016 and on 14 October 2016 he was interviewed by the delegate. Following that interview, the Applicant provided some further documents in support of his application. That occurred on 25 October 2016. On 23 November 2016 the delegate refused to grant the visa. Because it was a fast track decision the matter was automatically referred then to the Immigration Assessment Authority.
The Applicant wrote to the IAA and gave them some further documentation, which I will talk about soon, but the IAA ended up affirming that decision, as I say, on 12 July 2017.
In short, the Applicant’s claims were that he is an ethnic Tamil, who grew up Hindu, but now has converted to Christianity. He said that his father was president of the Fisherman’s Society and was involved in the Tamil congress. He said that, because of the unrest and civil war, from 1973 to 1987 he resided in India. He came back to Sri Lanka for two years and then from 1989 to 1992 went back to Tamil Nadu in India. He returned to Sri Lanka in 1992 and in 1993 he became treasurer for the Fisherman’s Society.
He said that he was detained for questioning by the police, army and the Criminal Investigation Division (“the CID”), in 1996, 2005, 2006 and 2007. On one of those occasions he was detained for a day. In the year 2000, his father committed suicide. That year the Applicant was also a candidate for the Eelam People’s Revolutionary Liberation Front.
In 2005 he said that he was taken to a CID person. He claims that that person was working for the LTTE and gave him a lot of information. As a result of this, the LTTE now had his details. He said in 2006 he took a person who owed him a large sum of money to Court and though he feared those actions would be seen as giving credence to a suspicion that he was connected to the LTTE.
All of that was background to the main part of his claim and that was that on 27 April 2008 he was taken with his friend, a person known as “V”, from his home by a group of army soldiers in uniform who were wearing facemasks. He said that during that encounter he was blindfolded in a jeep with his friend, V, and they were driven to a jungle area where they were interrogated and threatened. He observed his interrogators to be drunk and had mistaken him for another person who was known to them to be an LTTE cadres.
The Applicant and V were then taken to the Orsill Police Station where the Applicant was informed he had been mistaken for someone else and he would be released the next morning. But the Applicant claims that instead of being released, he was detained for nine or 10 days at the police station and interrogated by the CID on three occasions. He confirmed that he was not beaten or otherwise mistreated during this time. The IAA accepted this event as having occurred. The IAA accepted that they were satisfied that the persons who committed this kidnapping were connected with the Sri Lankan Army.
The Applicant had said to the delegate that he said those people were from the Karuna Group. However, the IAA was not satisfied that these men were connected with such a group.
The Applicant, in effect, said that after that, he was taken to a Court and he was able to be released without any penalty or anything else happening to him. He, though, was scared and shifted his residence to another town called Jaffna. I should say he had been working with the health department in his village and, within the health department, he was able to be transferred to Jaffna. He did that and stayed there for about six months.
He then returned to his home village, but he didn’t return to his home and he resided at the urban council quarters, where he worked. What he said was that he didn’t return home because he was afraid he would be arrested by Sri Lankan forces. However, during the SHEV interview he confirmed that he had rented his property, but had not received any money from tenants.
The IAA concluded that, given that the Applicant had entered into a leasing arrangement that would potentially have given him an income and that he had alternate accommodation available to him close to his place of work, that the primary reason he chose not to reside at his home was not because he was fearful of being targeted and arrested by Sri Lankan forces.
This situation went on from the end of 2008 to July 2012. He said then that he went to his house with the intention of undertaking renovations to live there again and a friend from a nearby village informed him that CID officers had been searching for him at the house. It was on this basis that he decided to leave Sri Lanka.
The IAA came to the view that they doubted that the CID were searching for him. This is because during the visa interview the Applicant conceded that the CID were aware that he worked with the health department and that he was living on site. And given that he continued to work in the same government department as he had since 2001 and that he was residing in the area connected to his work, the IAA considered it implausible that the CID had been searching for the Applicant or that if they had been searching for him, he would not have been located.
This would also be supportive of an inference that the Applicant had no real profile with the authorities. He continued employment with a government department up until he took a boat to Christmas Island.
The IAA found that they were not satisfied that he was of interest to the authorities since his release from the detention in 2008 and he had not been the subject of any search by the CID. The IAA said that it followed that they were not satisfied that any authorities had been asking about him in connection with the person, V, since he arrived in Australia.
The IAA looked at the data breach. The Applicant said that after that data breach the Sri Lankan authorities had contacted the Applicant’s sister. That claim was only raised at the visa interview and it was done so when prompted by questions from the delegate. The IAA considered that this was a recent invention by the Applicant because of the circumstances in which that claim was made and the IAA was not satisfied that the sister had been so contacted.
The IAA looked at the Applicant’s conversion to Christianity and looked at whether there was any persecution within Sri Lanka because of a person’s religion. The country information did not support that there was any such persecution. The IAA at paragraph 38 said this:
38. For reasons already stated, I do not consider the applicant has a profile with the Sri Lankan authorities for actual or imputed support of the LTTE, or is considered to be a person of interest to the authorities for holding anti-government political opinion arising from this conversion to Christianity in 2000, his involvement with the EPRLF, the Fisherman’s Society or because of his father’s political activities. Given the applicant’s profile, the country information about the change in Sri Lanka’s political and security landscape, I am not satisfied that the applicant would be targeted by the Sri Lankan authorities, including the CID, or by paramilitary groups, on return to Sri Lanka.
The IAA looked at a number of medical reports that the Applicant had. It seems that he had been assessed by a psychologist that he was showing symptoms of PTSD. It was also seen that on 31 December 2012 he had heart surgery in this country to install a pacemaker.
The IAA noted that there was nothing in the country information that the delegate considered and the Applicant had never claimed that he would be denied or unable to access medical treatment or services in Sri Lanka for any reasons.
The Applicant claimed that he would face harm on return to Sri Lanka as a returned asylum seeker. The IAA looked at the appropriate country information and came to the conclusion that there would not be any harm; that the Applicant would at most be subjected to a fine and that such processing that may include a short period of detention while the fine is being processed would not amount to serious harm.
A summary at paragraph 51 the IAA said this:
51. The applicant is a male Christian Tamil from the Eastern Province who was detained from nine to ten days in 2008 on suspicion of being involved with the LTTE due to being mistakenly identified as an LTTE cadre. Although he has been questioned on other occasions by the authorities he was not arrested, detained or mistreated. He was involved with the EPRLF as a candidate for the local Council elections in 2000 and was Treasurer for the Fisherman’s Society in 1993. From 2001 till 2012, he held the position as an employee with the Urban Council of the Health Department in Trincomalee, and has travelled with relative ease between the Trincomalee and Jaffna districts. Noting the applicant’s history and profile, and having regard to the country information about the political and security situation in Sri Lanka, I am not satisfied that he faces a real chance of serious harm now or in the reasonably foreseeable future.
So the Applicant did not meet the requirements of the refugee criteria.
The IAA then looked at what would happen upon his return to Sri Lanka. The IAA was not satisfied that there was a real risk that the Applicant would face the death penalty, arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, including as a result of conditions he may face as a necessary and foreseeable consequence of being returned to Sri Lanka as an illegal departee. That meant that he did not fit the criteria for the complementary protection.
The Applicant had two grounds of review. The first was:
The Second Respondent (The IAA reviewer) fell into jurisdictional error in failing to consider new information provided by the applicant.
The particulars of that was that the IAA had used an unduly narrow interpretation of the term “exceptional circumstances”. The particulars go on to say this:
The IAA accepted that the information provided by the Applicant to the IAA had been “new information” (reference made to paragraph 6 of the decision of the IAA dated 12 July 2017) but rejected solely on the basis that the IAA was not satisfied that there are exceptional circumstances to justify considering the new information on the ground that the applicant has not provided any reason as to why he did not obtain such letters of support earlier…
When one looks at the actual decision, the IAA said this at paragraph 4 and 5. In paragraph 4 the IAA spoke of what the new information was and in paragraph 5 spoke about the translation of the documents, again something I will get to a little later.
In paragraph 6 the IAA said:
6. The compilation of country information appears to be part of a submission by private authors calling for changes in the Australian Government’s approach to assessing the claims for protection of asylum seekers from Sri Lanka. I accept that this is material that was not before the delegate and is new information. The applicant has not provided any explanation about the source of the document, how it may be considered personal credible information and why it could not have been provided to the delegate prior to their decision. Given the material included in the document consists of information about the circumstances facing Tamils in Sri Lanka generally and was in existence prior to the delegate’s decision, I am not satisfied that the document meets the requirements of s.473DD(b)(i) or s.473DD(b)(ii). In the absence of information about the source and reliability of the document, and noting that I have not been able to locate reference to the document in the public domain, I am also not satisfied there are exceptional circumstances to justify considering this new information.
It is trite to say that s.473DD of the Migration Act 1958 (Cth) (“the Act”) legislates that the IAA is not allowed to look at new information unless there are both exceptional circumstances for receiving that information and the document meets the criteria in s.473DD (b)(i) or s.473DD (b)(ii).
Those requirements are cumulative. The ground incorrectly claims that the new information was rejected solely on the basis that the IAA was not satisfied that there were exceptional circumstances to justify the new information and that the finding that there was no exceptional circumstances, was made only on the ground that the Applicant had not provided any reason as to why he did not obtain such letters of support earlier. That is plainly incorrect.
The IAA noted that there was no explanation as to why these documents that were in existence before the delegate made the decision could not have been brought to the delegate’s attention earlier. The IAA noted that s.473DD(b)(i) and s.473DD(b)(ii) had not been satisfied, but it is a cumulative matter. The exceptional circumstances that are looked at (a) are exceptional circumstances that go beyond those of (b). In this case the IAA has clearly said that they had doubts about the source and reliability of the document and were not able to locate reference to the document in the public domain.
With those circumstances, the IAA came to the view that there were not exceptional circumstances to justify considering the new information. The exceptional circumstances were based on something totally different to the considerations in (b).
Therefore, there has been no misinterpretation of misapplication of s.473DD and the first ground of review has no merit.
The second ground of review was:
1. That the decision of the First Respondent and Second Respondent falls into an error of law. The Reviewer made facts finding error, ignored relevant material and relied on irrelevant in reaching their decision and reasons on 12 July 2017.
a) According to Ministerial direction no 56 which states DFAT country information is to be taken into account only where it is relevant information, and the decision maker is not precluded from considering other relevant information about the real situation in Sri Lanka. Further, the First and Second Respondent failed to take into account there are limitations in the DFAT country information of Sri Lanka.
Nothing more is said. The DFAT information was used, as was all other country information. There was nothing that has been said to me to show that what any limitations in the country information are. The country information is a matter for the IAA to make of whatever use it feels. That particular has no merit.
b) Further, the Second Respondent failed to consider other relevant and reliable material or information such as which was available before the date of decision of IAA (12 July 2017) regarding the real situation in Sri Lanka other than the DFAT country information 2017report.
Insofar as that particular is a criticism of not receiving the new information, I’ve already dealt with that. Again, the IAA is free to look at whatever country information it so pleases. There is no merit in that particular.
c) Further, the Second Respondent relied on the article “US Department of State, Sri Lanka Country Report on Human Rights Practice 2015” only to the information as stated in paragraph 37 of the IAA decision but failed to take into account other relevant information in the said report such as regarding torture and other cruel, inhuman, degrading treatment or punishment.
Again, there is no evidence that the whole report was not looked at. If the IAA chooses to speak of one particular aspect then that is a matter for the IAA. The last particular is:
d) The reviewer made a fact-finding error and failed to seek or take into relevant information (reference made to paragraph 34 of IAA decision) when decided that the reviewer was not satisfied that the applicant’s sister was contacted by the Sri Lankan authorities as a result of the data breach.
Again, that is a fact that the IAA is entitled to infer.
There was no evidence other than what the Applicant said to support that claim. The Applicant was aware that the delegate had earlier rejected this claim and yet didn’t seek to provide any new information to the IAA in support of a claim. Whether that new information would have been accepted is another matter, but it wasn’t even sought to have been put before the IAA.
The second thing is that conclusion is something that was actually open to the IAA to conclude. Whether it was a conclusion that I, or any other person in the IAA’s shoes may have come to is really not to the point. The fact is that such an inference was open on the evidence and the IAA drew that inference. There is no merit in that ground.
Therefore, the grounds that were put before this Court have displayed no jurisdictional error.
The Applicant appeared today with the assistance of an interpreter. He handed to the Court a handwritten document that had a number of other points in it. The first point was “I have a pacemaker in my heart implanted device identification. I believe this could create a dangerous situation to myself if I have to go back because of the emotional situation could cause death to me.”
Again, there was no information before the IAA about that aspect and it was certainly not a claim that was before the delegate either. As it was not a claim that had been made before the delegate, the IAA could not have reviewed such a claim. Therefore, that does not illustrate any jurisdictional error.
The second point was, the Applicant said that he has given all the documents regarding things that happened in his country, but he believed the IAA have not read through the documents, and that he had spoken all his problems and the situation he was going through to the IAA, but he wasn’t sure if they have considered or taken into account, because when they replied, it was not written in the green book.
Part of those points are a reiteration of the point about the new information that I have already covered; however, there is one different aspect in that the Applicant said that there was a document that he had that he had given to the Department that he didn’t find in the green book. It was pointed out that the document that he was speaking of may have not been reproduced in the green book, as the green book has a number of references to untranslated documents that were not reproduced for the green book.

Nevertheless, the document that the Applicant claims is some document that talks about three people being kidnapped in 2008. He said that the document was wrong, that there was only two people that were kidnapped.
There is nothing to suggest that this document had not been before the IAA in untranslated form, but in any event it makes absolutely no difference. The IAA has been told of the claims of the Applicant about the kidnapping in 2008 and has accepted them, so it is very difficult to see how this document could have done anything to change the course of the hearing if it is that it could even be proved that it hadn’t been before the IAA.
Point 4 is a reference that, notwithstanding that this decision was made in July 2017, that within the last few weeks, and today being 27 November 2018, there has been some political upheaval in Sri Lanka where the President has appointed a new prime minister and refused to reappoint the old prime minister.
The new prime minister is a person whose surname is Rajapaksa. The Applicant says that this person is anti-Indian, and, because he is now the prime minister, the same old situations where Indians are in danger will come about again.
Firstly, this claim was not before the IAA and could not have been because it is something that has happened since that time. And, secondly, there is no information as to what this person, Rajapaksa, will now do considering that there has been so much change in Sri Lanka since the last time that Mr Rajapaksa was in power. So that does not disclose a jurisdictional error.
The next point the Applicant makes is that the IAA didn’t give him enough time to proceed with translation of documents. At paragraph 5 of the IAA decision, the IAA writes this:
5. In respect of the untranslated handwritten note and documents relating to the EPRLF, on 23 December 2016 the IAA advised the applicant if he wished the documents to be taken into account, he should provide translations. The IAA agreed to allow additional time in response to requests by the applicant to extend time for this purpose. To date, no translation of the documents has been received. In the absence of an English translation of the documents, I am unable to assess their contents.
In the court book, it can be seen that when the Applicant did make submissions to the IAA, he did include this untranslated note. On 23 December 2016, the IAA asked for translated material. On 17 January 2017, there is a case note, and this is at page 220 of the court book. The Applicant had made a phone call to the IAA and a full notation had been given. In that notation, the following is said:
The applicant went on to state he had been trying to get the documents translated, but he has no money, and the documents have to be sent to Melbourne for translation and that’s why he requested for a two-weeks extension.
The person from the IAA said this:
I reiterated to the applicant that the IAA might consider any additional documents provided before a decision is made.
And it would seem that, in effect, the two weeks was allowed. Notwithstanding that, there was no other contact by the Applicant with the IAA until 21 June 2017, so some five months later. On that day, the Applicant phoned the IAA to give them a contact number for him and an address for him. The subject of the translation was not raised.
The decision was made on 12 July 2017. The request by the IAA for the documents to be translated was on 23 December 2016, some seven months before the decision. The request for a two-week extension to give the translated documents was made on 17 January. There was no other contact. The IAA proceeded with their assessment as I have already gone through.
For the Applicant to say that the IAA didn’t give him enough time for him to proceed with the translation of the documents is quite farcical. The IAA has bent over backwards for the Applicant. He still hasn’t got the documents translated because he says that it takes time and money, and he has not shown that he had any particular means by which to get those documents translated.
Therefore, I do not find that there is any jurisdictional error that has been illustrated. Having found that there is no jurisdictional error, I, therefore, dismiss the application with costs in the sum of $5500.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 8 January 2019