Did17 v Minister for Immigration

[2018] FCCA 2627

FEDERAL CIRCUIT COURT OF AUSTRALIA

DID17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2627

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misunderstood the nature of s 473DD of the Migration Act 1958 – whether the Authority’s finding was unreasonable – no jurisdictional error identified – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD, 473DE, 476

Applicant: DID17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2332 of 2017

Judgment of: Judge Street

Hearing date: 17 September 2018

Date of Last Submission: 17 September 2018

Delivered at: Sydney

Delivered on: 17 September 2018

REPRESENTATION

Counsel for the Applicant: Mr G Foster

Solicitors for the Respondents: Ms C Saunders
DLA Piper

ORDERS

1. Grant leave to the applicant to file in Court the Notice of Address for Service.

2. Grant leave to the applicant to rely upon the second amended application filed 13 September 2018.

3. The second amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $4,900.00.

THE COURT NOTES THAT:

1. The grounds advanced appear under the hearing “Further Grounds” and that the earlier material under jurisdictional error before that heading in the second amended application is not pressed and it is on that basis that the Court has granted leave.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2332 of 2017

DID17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 5 July 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 20 July 2013 and applied for the Class XE Subclass 790 Safe Haven Enterprise visa on 14 September 2015. On 2 May 2016 a delegate found the applicant failed to meet the criteria for the grant of the protection visa. On 8 June 2016 a differently constituted Authority affirmed the decision not to grant the applicant a protection visa, which was the subject of consent orders setting aside the same on 23 May 2017 remitting the matter back to the Authority for further hearing.

3. Following the remission, the Authority wrote to the applicant on 26 May 2017 informing the applicant that the matter had been remitted for reconsideration and that the Authority would proceed to engage in a reconsideration of the matter. On 11 June 2017 further submissions and information were provided to the Authority, which were expressly referred to by the Authority and considered in the Authority’s reasons. 

4. The applicant claimed to fear harm by reason of being a Tamil male from the Northern Province of Sri Lanka. The applicant also claimed to fear harm if returned to Sri Lanka from the Criminal Investigation Division, the Sri Lankan Army, the Eelam People’s Democratic Party (“EPDP”), or arm of the Sri Lankan authorities on account of his Tamil ethnicity, his age, his imputed links to the LTTE, him being forcibly recruited to the LTTE, his incapacity to subsist, his details being made public in February 2014 as well as his illegal departure and seeking asylum in Australia.

5. The applicant provided submissions to the Authority under Part 7AA. Following the decision, the delegate had an invitation sent by the Authority referring to the referral of the application to the Authority for review and giving the applicant an opportunity to put on new information and submissions.

6. One of the documents put on by the applicant in a submission dated 30 May 2016 referred back to paragraph 46 of the delegate’s reasons at page 384 of the Court Book and the reference to the applicant being a Christian of Catholic persuasion. The submission referred to a report of May 2016 by the Sri Lanka Campaign for Pearce and Justice titled referring to attacks on Sri Lankan Christians and the police failing to intervene. The applicant stated that the report cites a 2015 Annual report by the United States Commission of Enquiry of Religious Freedoms reporting on police harassment of religious minorities. The applicant’s submission referred to being a Tamil and coming from a Catholic family and that:

   While we have not experienced any threat as yet, many people have experienced the growing level of intimidation and threat in our area. This is a concern to me as it is another risk of my safety if I am returned to Sri Lanka.

7. The Authority referred to the submissions of 30 May 2016 and insofar as they engage in argument with the reasons of the delegate, the Authority was satisfied it did not constitute new information and had regard to the same. The Authority identified that the submission appeared to raise two new claims and referred to country information that was not before the delegate. The Authority identified the requirement under s 473DD of the Act that it is not to consider new information from the applicant unless satisfied exceptional circumstances justify considering the new information and that the new information could not have been provided to the Minister or is credible personal information which was not previously known and had it been known, may have affected the consideration of the applicant’s claims. The Authority has correctly identified in that regard the requirements of s 473DD of the Act.

8. The Authority referred to the applicant’s claim that he is at risk of harm because he is a Christian. The Authority confirmed that the applicant acknowledged that he and his family are yet to experience any threats.  The Authority noted no details had been provided as to the nature of the intimidation or threats, or when those threats are said to have occurred.  The Authority noted the applicant did not refer to fearing harm on account of his religion in his Safe Haven Enterprise visa interview application and in the interview with the delegate on 16 September 2015, the applicant advised he had no prior difficulty in Sri Lanka on account of his Catholic faith and that he faced persecution because of his race, not religion.

9. The Authority found that the new information is one which was not clear as to whether it relates to events that pre-date the delegate’s decision, but taking into account the applicant’s previous evidence, was satisfied that this is new information. The Authority referred to the fact that no actual report had been provided in respect of the applicant’s concern referring to attacks on Christians and failure of police to intervene. The Authority noted that the May 2016 United States Commission of Enquiry of Religious Freedoms report refers to events that pre-date the delegate’s decision.

10. The Authority referred to the applicant being legally represented in respect of his Safe Haven Enterprise visa application, including at the Safe Haven Enterprise visa interview and referred to the claim not previously being mentioned by the applicant or his representative, including in the extensive post Safe Haven Enterprise visa interview submission. It was in those circumstances and the Authority referring to the absence of provision of the actual country information reports that the Authority was not satisfied there were exceptional circumstances to justify considering this new information. 

11. The Authority considered other new information and was not satisfied that there were exceptional circumstances to justify considering the same and the Authority also referred to being satisfied that the second submission of 11 June 2017 did not constitute new information. The Authority was satisfied there were exceptional circumstances to receive the updated DFAT country information report dated 24 January 2017 and the Authority was satisfied that there was exceptional circumstances to justify considering the UK Home Office “Country Information Guidance Sri Lanka: Tamil Separatism Version 3.0” Report published on 1 August 2016.

12. The Authority also had regard to country information relevant to the data breach and the Authority was satisfied there were exceptional circumstances to justify considering the same under s 473DD of the Act and that that country information fell within s 473DE(3)(a) of the Act. 

13. The Authority concluded the applicant had fabricated his father’s claimed abduction and escape by the Liberation Tamil Tigers of Eelam (“LTTE”) in order to enhance his protection claims. The Authority did not accept the applicant’s father was abducted by the LTTE as claimed.  The Authority rejected the applicant’s associated claim that his uncle went to visit his father in the LTTE camp and was killed by the EPDP for doing so.

14. The Authority was not satisfied the applicant faces a real chance of serious harm in Sri Lanka due to interrupted schooling during the conflict.

15. The Authority was not satisfied the applicant faces a real chance of harm in Sri Lanka on account of his cousins’ prior LTTE involvement. The Authority was not satisfied the applicant’s parents are of ongoing interest to Sri Lankan authorities on account of any LTTE links. The Authority was not satisfied they are persons of ongoing interest to the Sri Lankan authorities in 2017 on account of any actual or imputed LTTE links. 

16. The Authority found there was no evidence that indicates the applicant has or will experience any barriers to accessing education, employment or any government services in Sri Lanka. The Authority referred to the applicant’s Tamil ethnicity and the United Nation High Commissioner for Refugees (“UNHCR”) Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012 (“UNHCR 2012 Guidelines”) and was not satisfied the applicant is now a person who is at risk of harm on this basis in 2017, or in the foreseeable future.

17. The Authority was not satisfied the applicant is at risk of being recruited by the LTTE or a similar Tamil separatist organisation now or in the reasonably foreseeable future if he returns to Sri Lanka. The Authority was not satisfied the applicant is at risk of harm on account of his age or his profile as a young Tamil male. The Authority was not satisfied the applicant, as a young Tamil male, will be imputed as anti-government or pro-LTTE by the Sri Lankan authorities and was not satisfied the applicant is at risk of any harm on this basis if he returned to Sri Lanka. 

18. The Authority was not satisfied the applicant’s family are impoverished and are not in a position to assist him. The Authority was not satisfied that there are significant barriers that would deny the applicant’s capacity to earn a livelihood in Sri Lanka or that he will experience significant economic hardship or will be denied access to basic services that threaten his capacity to subsist now or in the foreseeable future.

19. The Authority referred to accepting the applicant is a Catholic and accepted that anti-Christian acts of violence have occurred, but found the applicant does not claim to have experienced harm in the past on account of his religion, and did not claim to fear harm in the future on this basis. The Authority found that there is not a real chance, after citing country information, that the applicant will experience significant harm on account of his religion now or in the reasonably foreseeable future.

20. The Authority was not satisfied the applicant faces a real chance of serious harm on account of his age, his religion or due to an incapacity to subsist. The Authority was not satisfied the applicant faces a real chance of serious harm due to a potential LTTE revival or from “Grease men” upon his return to Sri Lanka now or in the foreseeable future. 

21. The Authority was not satisfied the applicant faces a real chance of serious harm on account of his details being made available for a short period on the Department of Immigration and Border Protection’s website in February 2014 now or in the foreseeable future. 

22. The Authority accepted the applicant would be returning to Sri Lanka as a failed asylum seeker from Australia. The Authority was not satisfied the applicant has a profile of interest to the security services due to any separatist or criminal activities. The Authority found the imposition of any fine which can be paid by instalments, surety or guarantee would not of itself constitute serious harm. The Authority was satisfied that the provisions and penalties of the Immigrants and Emigrants Act are laws of general application that apply to all Sri Lankans equally. The Authority was satisfied that any process or penalty the applicant may have faced on return to Sri Lanka because of his illegal departure would not constitute persecution for the purposes of the Act. The Authority found the applicant does not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia or any other reason.

23. The Authority referred to having considered the applicant’s claims individually and accumulatively and found the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act. the Authority found the applicant did not meet the requirement of the definition of “refugee” in s 5H(1) of the Act and that the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review. 

The grounds

1. The grounds in the second amended application are as follows:

   1. The IAA fell into jurisdictional error when it found [7] there were no exceptional circumstances to allow the IAA to consider further claims as to his religious fears, in that

   *the finding was unreasonable; and/or

   *that no reasonable decision maker would have come to that conclusion, and/or

   *it was made without any logical or probative basis (see CIC15 v Minister for Immigration and Border Protection [2018] FCA 795) and/or

   *the IAA misunderstood the meaning and nature of S 473DD of the Migration Act and/or misunderstood its own function and duty in respect thereof.

   2. The IAA fell into jurisdictional error when it stated ' ... ,the applicant does not claim to have experienced harm in the past on account of his religion, nor does he claim to fear harm in the future on this basis.’ Which was factually incorrect and thereby demonstrated  a misunderstanding of the nature of the case and the claims under review.

Ground 1

1. Mr Foster of counsel on behalf of the applicant in support of ground 1 submitted that the Authority’s exercise of the power of s 473DD of the Act was legally unreasonable. Mr Foster submitted that the Authority had not addressed in detail or arguably, at all the analysis of exceptional circumstances. Mr Foster submitted that the Authority’s exercise of its statutory power under s 473DD of the Act was miscarried by reason of which there was a jurisdictional error.

2. Mr Foster took the Court to the material provided to the Authority in support of the applicant’s concerns in respect of Christianity and referred to two reports being the May 2016 by the Sri Lanka Campaign for Pearce and Justice and the 2015 Annual report by the United States Commission of Enquiry of Religious Freedom in that material. Mr Foster did not submit that the Authority had failed to take into account both limbs of s 473DD of the Act, but rather that the Authority’s reasons were irrational, illogical or unreasonable.

3. The Authority’s reasons in relation to the new information refers to both the claims and the country information referred to in support of that claim. The Authority was correct to find the same was new information.

4. The Authority provided a logical and rational reason in support of its exercise of its statutory power under s 473DD of the Act, being the absence of any such claim being advanced before the delegate and the information provided, that the applicant did not fear harm based on his religion before the delegate. 

5. In these circumstances, the Authority’s reasons cannot be said to lack an evident and intelligible justification. The Authority provided further reasons as summarised above. Those reasons are not irrational or illogical. The Authority’s exercise of its statutory power under s 473DD of the Act cannot be said to be legally unreasonable in the circumstances of the present case. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground, 2 Mr Foster of counsel took the Court to paragraph 50 of the Authority’s reasons and sought to argue that the Authority had thereby misunderstood the applicant’s claims.

2. Mr Foster properly conceded this ground was in substance, interdependent on ground 1. If the Authority had correctly concluded that the new claim was new information, in respect of which the ground attacks the finding of exceptional circumstances justifying consideration was not made out, then the Authority could not be said to have made any factual error in saying that the applicant does not claim to have experienced harm. That was a proper concession by counsel, consistent with counsel’s duties to the Court.

3. It is apparent that the Authority was identifying in paragraph 50 of its reasons that there was no separate claim advanced that in the context of the Authority having exercised its powers under s 473DD of the Act. The Authority’s reasons are to read as a whole. No misunderstanding of the applicant’s claims is made out by paragraph 50.

4. Further, I accept the first respondent’s submission that in the circumstances of the present case, even if there was a factual error of the kind alleged in relation to ground 2, it is apparent that the Authority proceeded to determine and consider whether or not the applicant would face harm based on his Catholic faith and made an adverse finding on the country information that was before the Authority that was open to the Authority. In these circumstances, the alleged factual error the subject of the alleged misunderstanding, could not be said to be a material fact and could give rise to no practical injustice and had not material impact on the outcome. Accordingly, no jurisdictional error would arise, even if the alleged factual mistake in ground 2 was otherwise made out. 

Conclusion

1. As the second amended application fails to make out any jurisdictional error, the second amended application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  23 November 2018