DJG17 v Minister for Immigration
[2020] FCCA 1400
•17 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJG17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1400 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa (SHEV) – whether the Authority erred in considering the applicant was an unauthorised maritime arrival – whether the proclamation that the Cocos (Keeling) Islands as a port is invalid – whether the Authority failed to engage in genuine and realistic consideration of the applicant’s claims – whether the Authority failed to engage in careful, fair and reasonable approach in assessing the credibility of the applicant – whether the Authority’s findings are illogical – whether there is jurisdictional error – no jurisdictional error made out – application is dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 DBB16 v Minister for Immigration [2017] FCCA 375 FFZ18 and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1 GGD18 v Minister for Home Affairs (No 3) [2019] FCCA 444 Minister for Immigration and Citizenship v Li (2013) 297 ALR 226 |
| Applicant: | DJG17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2368 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 17 June 2020 |
| Date of Last Submission: | 17 June 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 17 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bodisco |
| Solicitors for the Applicant: | Abu Legal |
| Counsel for the Respondents: | Mr Rielly |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7,467.00.
Costs thrown away for the adjournment are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2368 of 2017
| DJG17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from transcript)
Introduction
The applicant is a Sri Lankan national of Tamil ethnicity. On or around 27 or 28 August 2012, the applicant was on a vessel that was intercepted by Australian authorities. The applicant was taken to the Cocos (Keeling) Islands as an unauthorised maritime arrival. The applicant was detained on West Island, Cocos Island on 28 August 2012. On or around 30 August 2012, the applicant was taken to Christmas Island. The applicant remained there until October 2012 when he was then taken to RAAF Base Curtain and further detained.
On 22 June 2016, the applicant filed an application for a Safe Haven Enterprise Visa (SHEV). A delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the visa on 22 November 2016.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for a fast track merits review, pursuant to Part 7AA of the Migration Act 1958 (Cth) (“the Act”). In a decision dated 6 July 2017, the Authority affirmed the delegate’s decision to refuse the applicant a protection visa.
The applicant now seeks judicial review of the Authority’s decision.
Preliminary Issues
This matter was listed for hearing on 2 June 2020. Orders were in place for the filing and serving of submissions well in advance of the hearing date. While referred to in submissions filed by Counsel for the applicant, no Amended Application containing the grounds of appeal, now relied upon, was filed with the Court, when the matter came on for hearing. At 9:14am, the Court was emailed supplementary submissions from the applicant, which included a new additional ground. It was indicated that the new ground had only crystallised when Counsel for the applicant was considering the matter over the preceding weekend.
It was only at the hearing that Counsel for the applicant confirmed that the initial grounds contained within the application to the Court, filed in July 2017, would be abandoned. This was notwithstanding that an email had been sent from the Court, to Counsel for the applicant on 20 May 2020, seeking confirmation as to what grounds of appeal were being pressed. No response was received to the email.
Given the legal representatives for the first Respondent were taken by surprise by this new ground, it was necessary for the matter to be adjourned in order for the first respondent to consider this entirely new ground. The time spent by Counsel for the first respondent responding to the initial grounds of appeal, were as a result, thrown away.
The Immigration Assessment Authority’s Decision
At paragraph 5 of its decision, the Authority notes that the Department of Foreign Affairs and Trade (“DFAT”) released an updated version of a country information report, in relation to Sri Lanka, that was not before the delegate. The Authority considered that there were exceptional circumstances to justify considering this new information.
The applicant’s claims are set out in paragraph 7 of the Authority’s decision. They are summarised as follows:
· One of the applicant’s brothers, L, died in 1990 at the hands of the Sri Lankan Army (“SLA”). In March 2001, the applicant’s brother S, was killed in crossfire between the SLA and the Liberation Tigers of Tamil Eelam (“the LTTE”).
· The applicant was subsequently arrested by the Criminal Investigation Division (“CID”) and accused of helping the LTTE. The applicant claims to have been held for 35 days, tortured and only released after his mother paid a bribe. This was later clarified, in that the torture took place in 2006, not 2001.
· In 2009, the applicant and his family were placed in an Internally Displaced Person’s (“IDP”) camp. Whilst there, the applicant claimed to have been taken, interviewed and beaten by the CID on a number of occasions.
· In 2012, the applicant claims to have been recognised by a CID officer from his 2006 detention. The applicant was again arrested, detained for 4 weeks and only released after his mother again paid a bribe. The applicant then went into hiding and then fled Sri Lanka.
· The applicant claims his wife has received many visits from the CID who are looking for him. The applicant fears harm due to his suspected links with the LTTE, his Tamil ethnicity and the fact that he left Sri Lanka illegally, whist subject to reporting requirements.
At paragraph 13 of its decision, the Authority reviewed the circumstances surrounding the death of L in 1990. The Authority accepts L died and his burnt body was subsequently found. The Authority does not accept that L’s death was as a result of suspicion that he was a member of the LTTE. The Authority does not accept that the applicant has an adverse profile, as a result of the death of L.
Paragraphs 14 - 17 of the Authority’s decision deal with the death of S and subsequent detention. The Authority accepts the different dates given by the applicant, as to the death of S in 2001 or 2006, were the result of genuine confusion. The Authority does not draw any adverse inference as a result. The Authority was prepared to accept that the applicant was arrested and detained for a period of time, subjected to harm and mistreatment. The Authority accepted that the applicant was released, after a bribe was paid.
Paragraphs 18 – 25 of the Authority’s decision deal with the applicant’s time in the IDP camp. This was for a period of approximately 12 months, from April 2009 - 2010. The applicant claims he was regularly called in for questioning and abused. The Authority, at paragraph 22 of its decision, accepted that the applicant was called in for questioning on a number of occasions. The Authority found the applicant was of no ongoing interest to the CID and had no adverse profile, when he was released from the IDP camp.
The Authority was not satisfied that the applicant’s departure from Sri Lanka, while on reporting conditions, would give rise, if returned, to an adverse security or criminal profile. Further, the applicant would not be the subject of a regular reporting requirement, if he returned to his home village.
Paragraphs 22 - 43 of the Authority’s decision deal with the applicant’s 2012 detention and illegal departure. The Authority finds it not plausible that the applicant would have been released from the IDP, if he had an adverse profile. The Authority further finds it implausible the applicant would have been recognised, 6 years later by a CID officer, given he had no particular adverse profile. The Authority finds that the applicant fabricated his claims of arrest, abuse and release in 2012, after payment of a bribe to the CID.
The Authority was prepared to accept that in the days after the applicant’s departure, the CID may have visited the applicant’s wife and questioned her. The Authority notes however, that the applicant has not claimed any other family members were visited and questioned, as to his whereabouts.
After considering relevant country information, the Authority was not satisfied that the applicant faced a real chance of serious harm, based on him being a male, Tamil from the East, a former resident of the North or being a Hindu.
Paragraphs 44 – 52 of the Authority’s decision, deal with the risk of serious harm based on the applicant’s illegal departure and return as a failed asylum seeker. The Authority accepts the applicant will be charged with a law of general application for departing illegally. If the applicant pleads guilty, he will receive a fine rather than a custodial sentence. The applicant may face a delay in being placed before a Magistrate, but the Authority does not find this would amount to serious harm. If the applicant pleads not guilty, he would be released on a personal surety or may be required to have a family member act as surety. The Authority finds that none of the above, if the applicant returns, will constitute to serious harm.
Accordingly, the Authority finds that the applicant does not meet the refugee criteria under s 36(2)(a) of the Act.
Finally, the Authority deals with the complimentary protection criteria. For similar reasons as outlined above, the Authority finds that the applicant does not face a real risk of significant harm as a foreseeable and necessary consequence, of being returned to Sri Lanka. Accordingly, the applicant does not meet the criteria under s 36(2)(aa) of the Act.
Grounds of Appeal
Two grounds of appeal, which are contained within the initial application to the Court, filed 26 July 2017, have been abandoned. The grounds of appeal which are now relied upon, are contained in an Amended Application filed with the Court at the hearing on 2 June 2020. The grounds of appeal are as follows, verbatim:
Ground one
a. The Proclamation of the Cocos (Keeling) island of 30 July 2017 is ( in invalid.
b. The applicant is not an “unauthorised maritime arrival” within the meaning of s5AA of the Migration Act 1958 (Cth).
Ground two
The IAA has failed to engage in a genuine and realistic consideration of the Applicant’s claims.
Particulars:
The IAA has failed to engage in a careful, fair and reasonable approach to assessing the credibility of the applicant so as to avoid the engaging in a “quest to disbelieve”.
The Applicant’s Submissions
Counsel for the applicant relied upon the written submissions and chose not to expand on them orally.
In ground one, Counsel for the applicant asserts that the proclamation that the Cocos (Keeling) Islands as a port, is invalid. Reliance is placed on DBB16 v Minister for Immigration [2017] FCCA 375 (“DBB16”) per Perram, Wigney and Lee JJ.
Counsel for the applicant submits that the Cocos (Keeling) Islands territory, consists of 27 coral islands formed into two large coral atolls. The islands have a total land area 14 km² and support a population of 572 (ABS 2006). Only two of the islands are inhabited, West Island and Home Island. It is submitted that there are no major seaports on the island. Supply ships transporting goods to and from the islands, stop at anchorages within the area defined by the port limits. Cargo is offloaded in 20ft containers, onto a 150 ton dumb barge.
Firstly, Counsel for the applicant submitted that, only ports which could be appointed by the Minister which were, in fact, ports as a matter of ordinary English. A lagoon could not be a port, nor could it be an anchorage. It is submitted that the lagoon as an anchorage cannot be a port. It is submitted that a visa holder who arrived at the “port” would be entitled to do so, but there is no infrastructure there which would permit immigration clearance to occur.
Secondly, Counsel for the applicant submitted that the Minister, in appointing the Western lagoon as a port, has been actuated by extraneous purposes, so that the exercise of the power was vitiated.
Thirdly, Counsel for the applicant submitted that the terms of the instrument of appointment, contained errors and omissions which rendered it uncertain, so that the exercise of a power was again, vitiated.
It is conceded that in DBB16, the applicant in that matter did not leave the confines of the boat at Ashmore Reef. In this case, the applicant did briefly alight for two days. Counsel for the applicant submits that this brief stop, should not be regarded as the applicant’s entry into Australia, for the purposes of the Act. Embedded in the reasoning above, the Cocos (Keeling) Islands are insufficiently resourced for mercantile or migration transactions. This is why the stop was short and transitory in nature.
In relation to ground two, Counsel for the applicant submitted that the case of CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 (“CBN18”), is authority whose principals have direct relevance to this matter. At [59] of CBN18, the following was said:
The short point is that where an asylum seeker has given different accounts and offers an explanation for why that is so, the explanation must be seriously and properly considered. It may be that it is unpersuasive, but in another case it might count decisively against an adverse credibility finding or the rejection of a particular account in favour of another.
In making determinations as to credibility, the Authority was required to engage in an “active intellectual process”. The Authority was obliged to adopt a careful, fair and reasonable approach, to assessing the credibility of the applicant, so as to avoid engaging in a “quest to disbelieve” and to avoid irrationality or legal unreasonableness, in approaching that assessment (see AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [24] per Kenny J).
In the present case, at paragraph 13 of the Authority’s decision, there is simply no basis for accepting that the applicant’s brother L died on the one hand and not accepting that the family would be subject of suspicion. It is obvious that death certificates are issued by governments to substantiate a death. Such certificates are not to certify “suspicion”.
Further, there is no basis for accepting the applicant’s account, that he was detained and questioned about his involvement with the LTTE, that the applicant’s family paid a bribe for his release and not to accept his account of ongoing interest to the CID. Moreover, the applicant is simply incapable of leading evidence as to why the authorities would take an interest five years later, after the death of his brother, just as the applicant could not lead evidence as to what was occurring in the mind of another.
Complaint is also made that at paragraph 23 of its decision, the Authority held that it is implausible that if the CID had any level of historic or ongoing suspicion of the applicant, it would have allowed the applicant to remain with his family in the IDP camp and then leave the IDP camp without further investigation follow-up.
The finding by the Authority that, if the applicant were under suspicion, he would not have been released, is simply a failure to give genuine realistic consideration to the claim that is actually advanced by the applicant.
Complaint is also made with the finding at paragraph 28 of its decision, where the Authority held that if “the applicant had any sort of CID profile or file relating to suspected LTTE involvement…he would have been identified during the IDP screening processes”. This reasoning is flawed. It assumes the IDP screening processes were flawless, moreover, is contradicted by the finding that it was implausible that the applicant would be identified by a CID officer “six years after detention in 2006” and yet be undetected by the screening processes, at the IDP camp.
These findings were essential for the applicant’s claim to be refused. They effectively form the basis for lack of ongoing interest in the applicant, by the authorities in Sri Lanka. Counsel for the applicant submits that these findings amount to a failure to give proper, genuine and realistic consideration of the applicant’s claims.
The First Respondent’s Submissions
In relation to ground one, Counsel for the first respondent notes that the applicant essentially seeks to adopt the central argument of the appellant in DBB16. The substance of that statement, is that the applicant was not a ‘fast track’ applicant because he was not an “un-authorised maritime arrival”, as defined in s 5AA of the Act, given that he arrived at the Cocos (Keeling) Islands.
Counsel for the first respondent notes that the proclamation of the islands as a port, was made in the following instrument Appointment of “Proclaimed Ports’ under paragraph 5(5)(a) dated 22 August 1994 and issued by the then Minister for Immigration and Ethnic Affairs pursuant to s 5(5)(a) of the Act and published in the Commonwealth of Australia Gazette no GN 34, on 31 August 1994.
Counsel for the first respondent submitted that the applicant’s submissions regarding whether or not the islands are a “port”, are made without any evidence. Further, the alleged difference between a “port”, a “lagoon” and an “anchorage”, is nugatory that have no probative value, because the applicant concedes that he physically disembarked his vessel, at the Cocos (Keeling) Islands, stayed there for two days, undertook checks and then was physically moved to Christmas Island.
Accordingly, Counsel for the first respondent submits that DBB16 has no relevance to this application.
Because the applicant arrived at the Cocos (Keeling) Islands by sea and into the migration zone, by stepping onto land at Cocos (Keeling) Islands, being an excised offshore place, he became a “fast track applicant”. The Proclamation of the Port of Cocos (Keeling) Islands, under s 5(5)(a) of the Act, is not relevant to the present matter, in circumstances where the applicant physically disembarked his vessel and remained on the Cocos (Keeling) Islands for two days, during which time he was processed by Immigration officials. Accordingly, DBB16 is distinguishable.
In relation to ground two, Counsel for the first respondent submitted that there is nothing in CBN18 that establishes any new or different legal principle. It is simply an application of existing principles, to a particular fact situation. In CBN18, the Court found extreme illogicality, however, this is not present in this case. The Authority did not find the applicant or his family were under suspicion of LTTE involvement, despite accepting the death of L in 1990. The applicant and his family were questioned following the death of L. There is nothing illogical or irrational in the Authority, accepting the applicant may have been of interest in 2006, but is not of interest in 2017. The Authority explained why it came to this conclusion at paragraphs 18 – 32 of its decision and specifically took into account the 2006 detention.
Finally, the applicant submits that the Authority’s findings are flawed, as the IDP screening in Sri Lanka was flawed. This is despite findings based on country information at paragraphs 18 -26 of its decision, that screening processes were comprehensive and multi-staged, in order to identify LTTE involvement. There is nothing illogical at paragraph 26 of the Authority’s decision, in finding the claim the applicant was again arrested in 2012 implausible, following his screening at the IDP camp in 2009 - 2010.
Consideration
Ground one argues that the proclamation of the Cocos (Keeling) Islands as a port, is not valid. In DBB16, the Full Court considered whether the applicant in that case, was a “fast track” applicant, in circumstances where he was taken to Ashmore Reef, but did not step ashore. In order for him to be a “fast track” applicant, the Western Lagoon of Ashmore Reef, accordingly needed to be proclaimed as a port for the applicant to have entered the Migration Zone at Ashmore Reef. The Full Court found Ashmore Reef was not a port, by reference to a number of factors including the fact, that a fundamental feature of a port is that it is a place where a non-citizen, holding a visa, can be immigration cleared (see DBB16 at [44]).
Evidence in this case, clearly indicates and is not disputed, that the applicant was ashore at the Cocos (Keeling) Islands for two days, prior to being removed to Christmas Island. During that time, the applicant underwent health checks. There is also evidence of being immigration processed onshore at the Cocos (Keeling) Islands. This evidence includes a Detention Notice to the applicant, issued by an officer of the then Department of Immigration and Citizenship (see Supplemental Court Book pages 7 - 8). The fact that this processing may have been brief, is not sufficient to vitiate the fact that the applicant was onshore in an ‘excised offshore place’, for the purposes on s 5 of the Act, after the relevant “excision time of 12 noon on 17 September 2001, by legal time in the Australian Capital Territory”.
Accordingly, whether or not the Cocos (Keeling) Islands were a “port” by reference to its physical characteristics, as discussed in DBB16, is irrelevant. In coming to this conclusion, the Court adopts the reasoning of Driver J in FFZ18 and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1 at [28] and Street J in GGD18 v Minister for Home Affairs (No 3) [2019] FCCA 444 at [39] – [40]. Both cases are analogous to the current case, albeit they involve Christmas Island. Even if they are wrong, which the Court does not think they are, the Court would follow that reasoning as a matter of comity.
Ground one must fail. No jurisdictional error is apparent.
Ground two is couched in terms of reliance on the judgement of Stewart J in CBN18. Properly understood, CBN18 is not an expression of new law, it is merely a variation of legal unreasonableness, or where the decision “lacks an evident and intelligible justification” (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 226 (“Li”) at [76]).
The test for legal unreasonableness is stringent and will only arise in rare cases. Unreasonableness is not a means for challenging a decision, on the basis that the Court disagrees with the consideration of the matters or the evaluative judgement of the decision maker (see Li at [30] and [113]).
There is nothing in the decision, which to the Court’s mind, constitutes a ‘quest to disbelieve’ on the part of the Authority, in terms of the applicant’s credibility. The Authority was prepared, at paragraph 14 of its decision, to accept the issues that the applicant had with dates, without drawing adverse inferences. As pointed out by Counsel for the first respondent, the Authority’s discussions of the various claims was detailed and it gave proper and adequate reasons for its findings. The fact that reasonable people may disagree with those findings, does not make them legally unreasonable. The Court cannot detect anywhere within the decision evidence of a ‘quest to disbelieve’. Many of the matters pointed to in the applicant’s submissions, are speculation. For example, it is suggested that the decision to release the applicant from the IDP camp, which the Authority found to be evidence of a lack of an adverse profile, may have been due to a “flawed screening process”. No evidence is offered as to this proposition.
If the claim that the Authority was on a ‘quest to disbelieve’, amounts to a claim of bias, the Court does not accept that claim. There is no evidence before the Court that the Authority pre-judged the matter. Bias is a serious claim that requires evidence. No evidence of bias has been produced to this Court.
At best, ground two asks the Court to engage in merits review, which the Court cannot do. No jurisdictional error is made out
Conclusion
Accordingly, the application is dismissed.
The Court will hear from the parties on the issue of costs, including costs thrown away by the adjournment, caused by the late filing of an amended application to include ground two.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 25 June 2020
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