DKJ16 v Minister for Immigration and Anor (No.2)
[2020] FCCA 2092
•30 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DKJ16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 2092 |
| Catchwords: MIGRATION – Review of the Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well founded – numerous errors alleged – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 46A, 473DC |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 ALR17 v Minister for Home Affairs [2019] FCAFC 182 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Minister for Immigration v SZIAI (2009) 259 ALR 429 Minister for Immigration v SZQHH (2012) 200 FCR 223 Plaintiff M174/2016 v Minister for Immigration (2019) 93 ALJR 732 SZSGAv Minister for Immigration [2013] FCA 774 |
| Applicant: | DKJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1805 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms Strugnell of Minter Ellison |
ORDERS
The application filed on 9 June 2017 and amended on 6 February 2018 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1805 of 2017
| DKJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 23 May 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are conveniently set out in written submissions filed on behalf of the Minister.
Factual background
The applicant is a citizen of Sri Lanka, who arrived in Australia on 19 September 2012 and is an unauthorised maritime arrival. On 20 October 2015, the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa. The applicant subsequently applied for a Safe Haven Enterprise Visa (SHEV) which was received on 18 December 2015.[1]
[1] Court Book (CB) 29
On 18 August 2016, the delegate refused to grant the applicant a SHEV.[2] The delegate's decision was a “fast track reviewable decision” and was referred by the Minister to the Authority for review.[3] On 27 October 2016, the Authority affirmed the decision under review.[4]
[2] CB 179
[3] CB 195
[4] CB 212
On 26 April 2017, this Court made orders (by consent) remitting the matter to the Authority for redetermination according to law (SYG3131/2016).[5] The Authority had regard to the “review material” and no “new information” was obtained or received. On 23 May 2017, the Authority affirmed the decision under review.[6]
[5] CB 231
[6] CB 242
Applicant’s claims
The applicant claimed to fear harm on account of his Tamil ethnicity, his involvement in the Tamil National Alliance (TNA), as an imputed supporter of the Liberation Tigers of Tamil Eelam (LTTE), and as a failed asylum seeker who departed Sri Lanka illegally. In support of those claims, the applicant recounted the following events:
a)he grew up in an LTTE controlled area and he had relatives who died in the civil war;
b)in 1998, he was injured by shelling causing scarring on his leg;
c)from 2004–2008, he worked for “Porunniyam” an organisation run by the LTTE to help those affected by the war and natural disasters;
d)in 2007, he had 10 days training with the LTTE;
e)on 15 March 2009, he and his family moved from an LTTE controlled area to a Sri Lankan Army (SLA) controlled area where he was beaten, detained and interrogated;
f)in January 2011, he was approached by a TNA member seeking his support; however, upon being threatened by Criminal Investigation Division (CID) and SLA officers, he did not get involved further;
g)in July 2012, he was approached again by the TNA member seeking his support and when he became involved he was arrested, detained and beaten; and
h)in February, June and July 2012, he was arrested, detained and threatened (and beaten on the last occasion) by the CID on account of his involvement with the TNA.
The Authority decision
The Authority accepted some of the applicant's evidence but rejected his claims on the basis of adverse credibility findings and they did not give rise to a risk of serious or significant harm. In particular, the Authority accepted that the applicant had relatives who died in the civil war, that he had 10 days training with the LTTE, that he was employed by “Porunniyam”, and that he was mistreated by the SLA in 2009.[7] However, the Authority did not accept that the applicant would face harm for these reasons.[8]
[7] CB 245–246: [10]–[15]
[8] CB 250–251: [40]–[43]
After recounting the applicant's evidence,[9] the Authority found that the applicant's claims relating to his involvement in the TNA and any consequent adverse attention were “unconvincing” and concluded they were “fabricated”.[10] In support of that finding, the Authority referred to various inconsistencies and deficiencies with the applicant’s claims and evidence.[11]
[9] CB 246–248: [16]–[27]
[10] CB 248, 250: [28], [37]
[11] CB 248–249: [29]–[35]
In light of country information, the Authority did not accept that the applicant would face harm on account of his Tamil ethnicity nor any actual imputed support for the LTTE.[12] The Authority accepted that the applicant would return as a failed asylum seeker who departed illegally.[13] However, in light of country information and the applicant's profile, the Authority did not accept that the applicant would face harm as a failed asylum seeker.[14] In relation to the applicant's illegal departure, the Authority found that the applicant would not be targeted and his experiences would not amount to serious harm.[15] The Authority also found that the applicant would face “laws of general application”.[16]
[12] CB 251: [44]–[45]
[13] CB 251: [46]
[14] CB 251–252: [47]
[15] CB 252–253: [50]–[52]
[16] CB 253: [52]
For those reasons, and considering the applicant’s claims cumulatively, the Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act.[17] For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion.[18] The Authority found that the applicant would not face significant harm on account of being Tamil[19] or his illegal departure.[20]
[17] CB 253: [53]–[54]
[18] CB 253–254: [57], [62]–[63]
[19] CB 254: [58]
[20] CB 254: [59]–[61]
The current proceedings
These proceedings began with a show cause application filed on 9 June 2017. There is one general ground of review in that application, with a promise of more details later. Those details were provided in an outline of submissions filed on 6 February 2018. There are five particularised grounds in the application, as amended.
Ground 1
The IAA failed to consider the real risk of significant harm the applicant may face due to his perceived LTTE Links
Particulars
1. At [CB 213, 3] the applicant claimed that he was previously targeted by the SLA as they suspected him to be an LTTE member.
2. At [CB 213, 3], the applicant claimed he had visible scars which may lead the authorities to suspect he was an LTTE fighter.
3. The IAA accepted [CB 215, 10] tha thte applicant was beaten by the SLA.
4. When assessing future risk of significant harm the IAA failed to consider that the applicant was targeted in the past due to his perceived links.
5. The IAA committed legal error for this reason.
Ground 2
The IAA’s reasoning at [CB 173, 36] was inconsistent, illogical and so unreasonable.
Particulars
1. The IAA was willing to accept that the applicant was beaten by the SLA in 2009 due to perceived LTTE links [CB 215, 10].
2. The IAA accepted the following:
a. The applicant had family links (cousin) to the LTTE [CB 220, 36].
b. The applicant had family links to an LTTE matyr [CB 220, 36].
c. The applicant had scars [CB 220, 36].
d. The applicant worked for an organisation managed by the LTTE [CB 220, 36].
e. The applicant was beaten in 2009 [CB 220, 36].
f. The applicant was questioned “five times” [CB 200, 36].
g. The CID visited the applicant three times to question the applicant, fill in forms and take photos [CB 220, 36].
3. It was unreasonable for the IAA to state “except for his mistreatment and questioning by the SLA in 2009 and his questioning and registration by the CID in 2011 the applicant…did not receive any other adverse attention from the Sri Lankan authorities” [CB 220, 36].
4. The IAA’s inference at [CB 217, 19] was inconsistent with its own findings at [CB 220, 36], because at [CB 217, 19] the IAA rejected the applicant’s claim that the applicant was arrested, threatened by the CID in 2011 when the IAA was willing to accept in 2011, the CID visited the applicant three times to question the applicant, fill in forms and take photos [CB 220, 36].
5. The applicant said during the SHEV interview that this memory wasn’t good because he took medication [CB 216, 18].
6. It was unreasonable for the IAA to not consider the effect of the applicant being under a medication known referred to in the doctor’s letter (i.e. Zoloft).
7. The IAA failed to enquire the effect of taking the medication, or the effect it may have had on the applicant as claimed. Simply because the doctor’s letter did not state “anything about the effect of Zoloft” was not a reason to not give weight to the applicant’s claim that this memory was not good.
8. Therefore the IAA’s reasoning at [CB 216, 19] was so unreasonable that no reasonable decision maker would make.
Ground 3
The IAA fell into error because it had regard to the previous decision made by the IAA which was infected with legal error [CB212].
Particulars
1. The IAA’s decision of 27 October 20136 [CB 212] was remitted by the Federal Circuit Court for reconsideration because it was infected with legal error [CB 243, 4].
2. The IAA that considered the applicant’s case after it was remitted by the FCA states it did not consider the previous decision made by the IAA which was infected with legal error [CB 243,4].
3. For this reason it is submitted that the IAA committed legal error.
Ground 4
The IAA fell into error because it had regard to the previous decision made by the IAA which was infected by legal error [CB212].
Particulars
1. The IAA’s decision of 27 October 2016 [CB 212] was remitted by the Federal Circuit Court for reconsideration because it was infected by legal error [CB 243, 4].
2. Because the IAA that considered the applicant’s case after it was remitted by the FCA states it did consider the previous decision made by the IAA which was infected with legal error.
3. It is submitted that the IAA was biased against the applicant for this reason as its decision is infected with legal error because it was considered the previous decision made by the IAA which was infected with legal error.
Ground 5
The IAA’s reasoning was so unreasonable [CB 249, 36].
Particulars
1. The IAA states that it had regard that the applicant’s memory was impaired on account of medication the applicant had taken [CB 250, 36].
2. However The IAA was not satisfied that this would amount for the number of discrepancies in the applicant’s evidence [CB 250, 36].
3. The IAA states that the doctor’s letter makes no reference to the applicant having difficulty with his memory on account of his medical condition, prescribed medication… “I find the letter from the doctor does not evidence that the applicant has problems with his memory as claimed” [CB 250, 36]
4. It was not open for the IAA to state…”I find the letter from the doctor does not evidence that the applicant has problems with his memory as claimed” as the IAA is not a medical professional and therefore was not able to draw such an inference.
5. The decision is affected with legal error for this reason
(errors in original)
After some initial uncertainty, the applicant confirmed that those were the grounds he relied upon. He also relies upon the affidavit accompanying his original application. I received into evidence that affidavit as well as the court book filed on 27 September 2017. In addition, the Minister tendered a statutory declaration made by the applicant in 2013 that was inadvertently omitted from the court book and I received it as exhibit R1.
These proceedings had been initially allocated to the docket of Judge Barnes but, on 12 March 2019, she transferred the matter to my docket. The matter came before me for hearing on 19 March 2020. At that time, the applicant appeared but sought an adjournment due to illness. That was granted. The applicant attended today’s adjourned hearing by telephone. He sought a further adjournment in order to obtain additional documents. That was refused. The applicant referred to documents in his possession which supported his case. I declined to deal with additional documents which I did not have before me and which postdated the Authority’s decision.
I invited oral submissions from the applicant. He addressed in some detail his claims for protection. Despite prompting from me, he was unwilling or unable to address legal issues relating to the Authority decision. He did assert that there were interpretation problems at the interview conducted with the Minister’s delegate. He said he had determined this from listening to the sound recording of the interview, and invited me to do the same. I declined to do so, on the basis that the applicant had not taken up the opportunity to make any submission to the Authority. I also noted that the Authority’s decision is silent in relation to any question of interpretation at the interview before the delegate.
The Authority did listen to the sound recording of the interview and it records that it heard an oral complaint made by the applicant concerning poor memory. That was dealt with by the Authority at [23] – [24] and [36] of its reasons. I see no error with the Authority’s approach to that issue.
In his submissions in reply, the applicant suggested that his memory problems may have stopped him making a submission to the Authority. He again referred to alleged interpretation problems at the interview with the delegate and reiterated that he will face problems should he be required to return to Sri Lanka.
I am not persuaded that the Authority decision is affected by any jurisdictional error. The applicant has not addressed the grounds of review in his submissions. The Minister’s submissions deal with those grounds. The Minister’s solicitor also addressed the written submissions orally for the applicant’s benefit. I agree with the Minister’s submissions.
Ground 1
This ground contends the Authority erred because it “failed to consider the real risk of significant harm the applicant may face due to his perceived LTTE links”. The particulars point to parts of the first Authority's decision, dated 27 October 2016.[21] The first Authority’s decision is irrelevant and this ground otherwise seeks impermissible merits review.
[21] CB 213, [3]; 215, [10]
The Authority was required to review the delegate's decision which included its own assessment of the applicant's evidence.[22] The Authority considered the applicant's claims to have previously been targeted by the SLA and his scarring.[23] Its findings were open to the Authority for the reasons it gave and were dispositive of the applicant's claims.
[22] s.473CC(1) of the Migration Act; Plaintiff M174/2016 v Minister for Immigration (2019) 93 ALJR 732; [2018] HCA 16 at [16]–[17] per Gageler, Keane and Nettle JJ
[23] at [5], [15], [21], [25], [36], [42], [47]
It is open to the Authority to adopt its factual findings in respect of the refugee criterion in support of its findings made pursuant to the complementary protection criterion.[24]
[24] SZSGAv Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57] per Robertson J; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125 at [35] per Robertson, Griffiths and Perry JJ
Ground 2
This ground contends the Authority's findings were “inconsistent, illogical and so unreasonable”.[25] This ground also points to parts of the first Authority's decision, dated 27 October 2016.[26]
[25] CB 249–250: [36]
[26] CB 215, 220: [10], [36]
Neither the delegate's findings nor the first Authority's findings impose an obligation on the Authority to consider particular issues.[27] Further, it was open to the Authority to make different factual findings to those decision makers.[28]
[27] Minister for Immigration v EEI17 (2018) 261 FCR 461; [2018] FCAFC 166 at [34] per McKerracher, Gleeson and Burley JJ
[28] ALR17 v Minister for Home Affairs [2019] FCAFC 182 at [31]–[32] per Nicholas, Griffiths and Gleeson JJ; DGZ16 v Minister for Immigration (2018) 258 FCR 551; [2018] FCAFC 12 at [72] per Reeves, Robertson and Rangiah JJ
The Authority considered the matters raised by the applicant in this ground. In particular, the Authority considered the applicant's medical evidence and claims about his memory.[29]
[29] CB 247–250: [23], [36]
The Authority was not under any duty to “get, request or accept, any new information”, nor exercise its procedural discretion to invite the applicant to an interview.[30] In the circumstances of this case, the Authority's approach to its discretion in s.473DC(3) of the Migration Act was reasonable.[31]
[30] ss.473DC(2) and 473DC(3)(b) of the Migration Act
[31] Plaintiff M174/2016 at [71] per Gageler, Keane and Nettle JJ; cf. Minister for Immigration v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 at [76], [82] per Robertson, Murphy and Kerr JJ
The Authority was not under any obligation to make enquiries. In DYK16 v Minister for Immigration,[32] the Full Court of the Federal Court found at [72] per Collier, Middleton and Rangiah JJ:
72.…As Logan J pointed out in DJF16 v Minister for Home Affairs [2018] FCA 1285, it is questionable whether there is a duty imposed by Pt 7AA of the Migration Act on the IAA to make inquiry of the kind described in relation to the Administrative Appeals Tribunal by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429, namely an obvious inquiry about a critical fact easily ascertained.
[32] (2018) 267 FCR 69; [2018] FCAFC 222
In any event, this is not a case where the Authority failed to make an “obvious inquiry about a critical fact, the existence of which is easily ascertained”.[33]
[33] Minister for Immigration v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
Ground 3
This ground contends the Authority erred by having regard to the first Authority decision. This ground fails to identify jurisdictional error. Contrary to the applicant's assertion, the Authority did not state “it did consider the previous decision made by the Authority”. Rather, the Authority stated as follows:[34]
I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). No further information was obtained or received by the IAA.
[34] CB 243 [4]
This aspect of the Authority’s reasons reveals the Authority conducted the review in accordance with Part 7AA of the Migration Act.
Ground 4
This ground is in the same terms as Ground 3 and raises an allegation of bias. The applicant has provided no evidence to support such an allegation which is serious and must be “distinctly made and clearly proved”.[35] Further, there is nothing before the Court which demonstrates that a fair‑minded lay person might think that the Authority did not bring a fair and impartial mind to the making of the decision.[36] Moreover, it would be a rare case in which apprehended bias could be made out on the basis of the Authority's reasons alone.[37]
[35] Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] per Gleeson CJ and Gummow JJ
[36] Minister for Immigration v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 at [37] per Rares and Jagot JJ
[37] Minister for Immigration v SZNPG [2010] FCAFC 51 at [18] per North and Lander JJ
Ground 5
This ground takes issue with the Authority's findings addressing the applicant's medical evidence and claims about his memory.[38] This ground seeks impermissible merits review. The Authority made the following finding:[39]
I have had regard to the applicant’s verbal submission in the SHEV interview that his memory was impaired on account of medication he had taken; however, I am not satisfied this accounts for the numerous discrepancies in his evidence at different times. I also note the letter from the applicant’s doctor makes no reference to him having difficulty with his memory on account of his medical condition, prescribed medication, or for any other reason. I find the letter from the doctor does not evidence that the applicant has problems with his memory as claimed.
[38] CB 247–250: [23], [36]
[39] CB 249–250: [36]
The weighing of various pieces of evidence is a matter for the Authority.[40] The Authority considered the nature and content of the applicant's evidence and gave details reasons for its conclusion that the letter from the doctor “does not evidence that the applicant has problems with his memory as claimed”. The Authority's findings were open to it for the reasons it gave.
[40] Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [197] per Gummow and Hayne JJ
I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $7,000. That is below scale costs and I have no difficulty in accepting the claim when considered on a party and party basis. The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will therefore order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 August 2020
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