DJO16 v Minister for Immigration

[2017] FCCA 944

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJO16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 944

Catchwords:
MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Migration Act 1958, ss.5, 5AA, 5J, 13, 14, 36, 46A, 91R, 425, 473BB, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 474, 91R

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, s.2, sch.4

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
WZAPN v Minister for Immigration & Border Protection (2014) 229 FCR 477
SZTEQ v Minister for Immigration & Border Protection (2015) 229 FCR 497
Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610

Applicant: DJO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3104 of 2016

Judgment of: Judge Cameron

Hearing date: 19 April 2017

Date of Last Submission: 19 April 2017

Delivered at: Sydney

Delivered on: 15 May 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L. Leerdam of DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3104 of 2016

DJO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived by boat at Christmas Island in September 2012 without a visa permitting him to enter and stay in Australia.  On 29 June 2016 he lodged an application for a Safe Haven Enterprise (subclass 790) visa with the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity and political opinion.  On 8 August 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”).  The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Fast track review legislative framework

1. Section 5AA of the Act relevantly provides that a person is an “unauthorised maritime arrival” if he or she entered Australia by sea at an excised offshore place at any time after the excision time for that place and the person became an unlawful non-citizen because of that entry. Section 5(1) of the Act prescribes the Territory of Christmas Island, amongst other places, as an excised offshore place. Its excision time was 2pm on 8 September 2001 by the legal time in the Australian Capital Territory.

2. Between them, ss.13 and 14 of the Act provide that a non-citizen in the migration zone who does not hold a visa which is in effect is an unlawful non-citizen. Section 5 provides that, relevantly, the migration zone includes the Australian States and Territories. Consequently, the applicant is an unauthorised maritime arrival.

3. Section 46A(1) of the Act provides that an unauthorised maritime arrival cannot make a valid application for a visa. However, s.46A(2) of the Act provides that the Minister may, in his or her discretion, lift the bar on an applicant making such an application.

4. On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 5(1) of the Act relevantly defines a “fast track applicant” as, relevantly, a person:

   (i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)who has made a valid application for a protection visa in accordance with the determination;

5. Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.

6. Part 7AA of the Act sets out the IAA fast track process. Section 473CA is found in that part and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review. Section 473CB relevantly provides:

   473CB  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; …

7. Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The relevant sections of div.3 relevantly provide:

   473BB      Definitions

   In this Part

   …

   new information has the meaning given by subsection 473DC(1).

   …

   473DB  Immigration Assessment Authority to review decisions on the papers

   (1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

   (a)     without accepting or requesting new information; and

   (b)     without interviewing the referred applicant.

   …

   473DCGetting new information

   (1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

   (a)were not before the Minister when the Minister made the decision under section 65; and

   (b)the Authority considers may be relevant.

   (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.

   …

   473DDConsidering 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.

Background facts

1. The applicant initially applied for a permanent protection visa on 13 August 2013. However, as an unauthorised maritime arrival, he was barred from making a valid visa application and so his 2013 protection visa application was deemed to be invalid and was not processed further.

2. On 20 November 2015 the applicant was advised that the Minister had exercised his power under s.46A(2) of the Act to lift the bar on him applying for a visa. The applicant subsequently made his application for a safe haven enterprise visa (a temporary protection visa) on 29 June 2016.

3. The applicant’s claims for protection were made in a statement dated 29 June 2016, at an interview with the delegate on 5 July 2016 and in submissions dated 15 July 2016.  As summarised by the IAA in its decision, the applicant relevantly made the following claims:

   a)he is a Tamil from Udappu in Sri Lanka’s North Western Province; 

   b)he left Sri Lanka because in his village the Sinhalese blamed the Tamils whenever something happened;

   c)he worked for the United National Party (“UNP”) and consequently faced threats from opposition party members.  In 2010 a fight broke out in his village between supporters of the UNP and the opposition, the Sri Lanka Freedom Party (“SLFP”).  One of the SLFP supporters (“Kabil”) threatened to kill the applicant if he saw him again;

   d)the applicant had to pass through Kabil’s village to go to work.  One day he was assaulted by Kabil and his associates.  Kabil was charged in relation to the assault.  He feared harm from Kabil and SLFP supporters if he returned;

   e)in May or June 2012 he was arrested in Negombo by the Criminal Investigation Department (“CID”).  He was detained for three days before being taken to court and released on bail.  He was accused of being involved with the Tigers of Tamil Eelam (“LTTE”) because of a scar on his face and because he is a Tamil male who regularly travelled to the north (he claimed that he travelled every year for the fishing season);

   f)he left Sri Lanka whilst charges were still pending against him.  He will be detained, tortured and possibly killed on his return because of suspected LTTE involvement; and

   g)he also faced harm as a failed asylum seeker, and especially because he ran away without facing court.

4. As noted earlier, the applicant’s application was refused by the delegate on 8 August 2016. The delegate found that the applicant was not an “excluded fast track review applicant” and so referred his matter for review by the IAA as required by s.473CA of the Act.

The IAA’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act. The IAA’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:

   9.The IAA accepted that the applicant assisted the UNP at a low level and that his involvement was for personal reasons rather than political reasons.  The IAA also accepted that the applicant was involved in a fight between forty or fifty UNP and opposition party supporters in March 2011.  The IAA accepted that the applicant was injured in August 2011 and that he was assaulted [by Kabil and his associates] in the circumstances claimed.  The IAA found that the applicant’s evidence overall suggested that the court matter in relation to this assault had finalised.  Due to the applicant’s low level of involvement with the UNP, the absence of country information to suggest that other UNP supporters had been subjected to politically motivated violence, and the circumstances of the brawl in March 2011, the IAA considered that the threats and subsequent assault from Kabil was personal, rather than politically motivated. The IAA found that the risk of future harm from Kabil to be remote.  The IAA considered the risk of future harm towards the applicant as a low level UNP supporter to be remote.

   10.The IAA considered the applicant’s evidence in relation to his arrest in 2012 and due to numerous inconsistencies, the IAA did not accept that the applicant was arrested and detained at all.  The IAA also noted there were major inconsistencies in the applicant’s claims about the subsequent court proceedings.  The IAA found the applicant’s account of these events to be implausible given his lack of connection of any kind to the LTTE.  Overall, given the inconsistencies in the applicant’s evidence, the overall implausibility of his account, and the lack of documentary evidence to support his claims, the IAA did not accept that the applicant was arrested and detained in May or June 2012 nor that he had ever come to the authorities’ attention due to actual or imputed LTTE links.  The IAA did not accept that the applicant’s family had been visited after the applicant’s departure from Sri Lanka.

   11.The IAA was satisfied that the applicant was not at risk of harm now or in the reasonably foreseeable future because of his Tamil ethnicity and/or his previous travel to LTTE controlled areas.  The IAA did not accept that the scar on the applicant’s face alone would cause the applicant to be suspected of LTTE involvement.  The IAA found the applicant had no connection with the LTTE and was not imputed by the authorities to have any connection with the LTTE.

   12.The IAA considered the applicant’s claim to fear harm on account of being a failed asylum seeker but did not accept that the applicant would be at risk of adverse attention from the Sri Lankan authorities on his return and therefore found he would not be subjected to mistreatment that would amount to serious harm.  The IAA also found that any investigation, prosecution or punishment the applicant may face for leaving Sri Lanka illegally would be under a law of general application and therefore not amount to serious harm.

   13.Turning to the complementary protection criteria, the IAA found that as it was not satisfied there was a real chance that the applicant would face harm for the reasons claimed in relation to the refugee criteria, it was also not satisfied that there was a real risk that the applicant would face significant harm for these reasons.

   14.The IAA considered whether the applicant would face significant harm on account of his illegal departure from Sri Lanka.  The IAA was not satisfied that there were any particular aspects of the applicant’s profile which would result in him being detained for a longer period or being subjected to interrogation which would give rise to significant harm.  Similarly, the IAA did not accept that the process the applicant would be required to go through in being charged, the penalty, or the remand conditions amounted to significant harm.  The IAA was not satisfied that that any pain or suffering caused to the applicant by overcrowding, and poor and insanitary conditions in prison or on remand would be intentionally inflicted as required. (references omitted)

Proceedings in this Court

1. In his application commencing this proceeding the applicant alleged as follows:

   1.The Assessment (IAA) officer made a legal error in failing to consider the full integers of the applicants claim with respect to the complementary protection criteria.

   Particulars

   a)The Assessment (IAA) officer erred in failing to consider the real risk to the applicant’s liberty posed by the application of Sri Lanka law in respect of fail asylum.

   2.The Immigration Assessment Authority (IAA) officer made a legal error in failing to consider the real risk of harm faced by the applicant.

   Particulars

   a)The Immigration Assessment Authority (IAA) officer erred in making a qualitative assessment of the serious harm faced by the applicant, beyond a de minimus consideration of the harm faced by the applicant.

   3.The Immigration Assessment Authority (IAA) officer made a legal error in failing to consider the real risk of serious harm to the applicant under s.91R(2)(d).

   Particulars

   a)The Immigration Assessment Authority (IAA) officer erred in failing to consider the risk of the applicant facing significant economic hardship that would threaten the applicant and his family’s capacity to subsist.

   b)Furthermore the Immigration Assessment Authority (IAA) officer erred in failing to consider the implication of [the applicant’s] imprisonment on his capacity to assist due to his departure illegally from Sri Lanka returning as a fail asylum. 

   4.The Immigration Assessment Authority (IAA) officer made a legal error in failing to consider the real risk of serious harm to the applicant under s.91R(2)(f).

   a)The Immigration Assessment Authority (IAA) officer erred in failing to consider the risk of the applicant facing serious harm through the denial of capacity to earn a livelihood of any kind insofar that the denial threatens the applicant’s capacity to subsist.

2. In his affidavit sworn on 6 December 2016 the applicant included the following additional grounds:

   1.The Immigration Assessment Authority (IAA) fell into jurisdictional error when making the following findings that were not open on the evidence and based merely on assumption:

   Particulars

   a)that if the Applicant returns to Sri Lanka and is arrested for being an unlawful departure then he will be routinely bailed and would be released on personal surety for such bail.

   b)The IAA after accepting that the applicant had formally worked for the LTTE but will not face persecution, mistreatment or torture if returned as a failed asylum seeker.

   2.The Immigration Assessment Authority (IAA) fell into jurisdictional error when it failed to comply with s.425(1) of the Migration Act 1958.

3. In his affidavit sworn or affirmed on 8 November 2016 the applicant also made various unparticularised allegations of error on the part of the IAA.

Ground 1

1. As noted earlier, the matters which the applicant raised in the context of his claims to fear persecution in Sri Lanka were also considered in the complementary protection context.  The IAA said:

   The applicant has not made specific claims to complementary protection separate from those put forward in relation to the refugees criteria.  As set out above, I have found that there is not a real chance that the applicant faces harm of any kind, now and for the reasonably foreseeable future, as a Tamil who travelled to and worked in formerly LTTE controlled areas, or because he has a visible scar, or for any other reason arising from the credible evidence before me.  Based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm.

   One of those “other” reasons the applicant claimed fear harm was that he would be, upon a return to Sri Lanka, a failed asylum-seeker.   The particularization of ground one indicates that this was the claim said not to have been considered by the IAA.

2. That quoted passage makes it clear that the IAA did consider the matter which the applicant has alleged was overlooked.  In that paragraph the IAA should be understood to have been adopting in the complementary protection context, its reasoning for rejecting the applicant’s claims to fear persecution in Sri Lanka.  Its findings were equally applicable to both issues and so it was unnecessary for the IAA to repeat in its discussion of complementary protection the reasoning which it had already set out when considering the applicant’s refugee claims.  The IAA had only one body of evidence and it did not err by making findings on that evidence and then applying the different statutory tests to those findings. 

Ground 2

1. This ground appears to draw on a submission made in WZAPN v Minister for Immigration & Border Protection (2014) 229 FCR 477 at 483 [20] to the effect that, when considering the complementary protection criteria:

   … there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. 

2. Justice North held in that case that, regardless of its severity, any threat to liberty would amount to serious harm for the purposes of the then- s.91R(1)(b) and that making a qualitative assessment of the nature and degree of a threat to liberty allegedly feared by an applicant, when determining whether such a threat amounted to serious harm, would be to fall into error. His Honour’s holding has been disapproved by the Full Court of the Federal Court in SZTEQ v Minister for Immigration & Border Protection (2015) 229 FCR 497. Reflecting the manner in which the Act was drawn at the time, the Full Court of the Federal Court said:

   …  In our opinion, on its proper construction, s 91R does not forbid a qualitative assessment of claimed detention or imprisonment with a view to establishing whether or not it rises to the level of “serious harm” so as to constitute persecution, if the detention or imprisonment is for a Convention reason and the other aspects of s 91R are satisfied.

   …

   With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397:

   … the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. (at 510 [46], 513 [60])

3. That approach was approved by the High Court in Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610 at 619 [5], the court later saying:

   Section 91R is concerned, as is Art 1A(2) of the Convention, not simply with the violation of rights, but also with the seriousness of the harm suffered by a person as a result of the violation. (at 634 [70])

4. The statutory wording which was considered in those cases is now found in s.5J of the Act which relevantly provides:

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

5. The Full Court’s reasoning is applicable not only to para.(a) of that sub-section but also, were it necessary to apply it, to the other paragraphs with the consequence that, in order to determine whether conduct or circumstances will amount to serious harm, the statutory context requires consideration be given to the gravity of the harm likely to be suffered.  That is to say, a qualitative assessment is necessary.

6. Consequently, conduct which the applicant contends would amount to jurisdictional error would not, in fact, be erroneous and so the second ground of the application does not disclose a basis on which the IAA’s decision should be set aside.

Grounds 3 and 4

1. Section 91R of the Act was repealed with effect on and from 18 April 2015, i.e. before the applicant lodged his Save Haven Enterprise visa application: item 14 of s.2(1) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Nevertheless, what was previously provided in s.91R(2)(d) and (f) is now to be found in s.5J(5)(d) and (f), quoted earlier. Those paragraphs concern circumstances of significant economic hardship and denial of capacity to earn a livelihood that threaten an applicant’s capacity to subsist. As the summary of the applicant’s claims set out earlier implies, no claims of that sort were made in this case. Nor did the availability of such claims arise tolerably clearly from the materials before the IAA such that the IAA was required to consider them even if not expressly made by the applicant.

2. For these reasons, the third and fourth grounds of the application are not made out.

Affidavit of 6 December 2016 para.1

1. The first particular of the allegation that the IAA made findings for which there was no evidence referred to a finding made in para.39 of the IAA’s reasons.  Contrary to this allegation, that finding was supported by information from the Department of Foreign Affairs and Trade which was set out in the IAA’s reasons at paras.37 and 38.

2. In the second particular of this allegation, the applicant relied on what he purported was a finding by IAA, namely that he had “formally worked for the LTTE”.  The IAA made no such finding.  Consequently, this particular evidences no error on the IAA’s part.

Affidavit of 6 December 2016 para.2

1. Contrary to the applicant’s allegation, the IAA was not obliged to observe the requirements of s.425 of the Act which provides:

   425 Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)    Subsection (1) does not apply if:

   (a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)     subsection 424C(1) or (2) applies to the applicant.

   (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

2. Section 5 of the Act defines “Tribunal” to mean the Administrative Appeals Tribunal (“AAT”).

3. Unlike the AAT, the IAA is not required to hold hearings where an applicant may appear before it: ss.473DB, 473DC. Further, div.3 of pt.7AA of the Act, which is concerned with the conduct of IAA reviews, does not require the IAA to invite an applicant to “give evidence and present arguments relating to the issues arising in relation to the decision under review”.

4. Consequently, the second allegation made in the applicant’s second affidavit is not made out.

Affidavit of 8 November 2016

1. As none of the allegations made in the applicant’s first affidavit were particularised they all lacked meaningful substance.  Consequently, they provide no basis to set the IAA’s decision aside

Conclusion

1. Jurisdictional error on the part of the IAA has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 15 May 2017