DKP17 v Minister for Immigration

[2018] FCCA 1530

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1530

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – existence of a letter before the delegate which was not in the material referred by the Authority under s.473CB – whether the Authority failed to comply with s.473CB – whether the Authority acted legally unreasonably in failing to exercise the power under s.473DC – writs issued.

Legislation:
Migration Act 1958 (Cth), ss.473CB, 473DC, 473EA, 476

Applicant: DKP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2532 of 2017

Judgment of: Judge Street

Hearing date: 12 June 2018

Date of Last Submission: 12 June 2018

Delivered at: Sydney

Delivered on: 12 June 2018

REPRESENTATION

Counsel for the Applicant: Mr J Young

Solicitors for the Applicant: Simon Diab & Associates

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 16 May 2018.

2. A writ of certiorari is issued calling up the record of the Immigration Assessment Authority and quashing the decision dated 13 July 2017.

3. A writ of mandamus is issued requiring the Immigration Assessment Authority to determine the review under Part 7AA according to law.

4. The first respondent pay the applicant’s costs fixed in the amount of $8,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2532 of 2017

DKP17

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 13 July 2017 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil born in a particular village in the Batticaloa district, Eastern province. The applicant claimed to fear harm from the Sri Lanka authorities, or their associated paramilitaries and by reason of being a Tamil from a formerly LTTE-controlled area and by reason of having departed Sri Lanka illegally and being a failed asylum seeker.

3. The applicant arrived in Australia as an unauthorised maritime arrival on 21 October 2012. On 3 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. 

The Authority

1. On 8 November 2016, the Authority wrote to the applicant identifying that the application for a protection visa had been referred to the Authority for review.  Relevantly, in the present case, the letter explained that:

   The Department of Immigration and Border Protection (the department) has provided us with all documents they consider relevant to your case. 

2. The letter stated:

   This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. 

3. In that regard, the applicant in the enhanced screening interview, provided in his application for protection before the delegate, made express reference to having received a letter from the Tamil Makkal Viduthalai Pulikal (“TMVP”) on 9 September 2012.  The applicant also identified that letter as one of the documentary evidence supporting his claim for protection in his application for the Safe Haven Enterprise visa.

4. The applicant’s statement also refers to being informed by a paramilitary group on 12 September 2012 that he must come to their office.  Whilst there is a difference between the identification of where the office is, the applicant’s statement on a fair reading, appears to be referring to the same letter identified in his application for protection. 

Before this Court

1. Mr Young confirmed that grounds 1, 3 and 4 were no longer pressed and the Court has treated them as abandoned. The grounds in the amended application that are pressed are grounds 2, 5 and 6 and are as follows:

   2. The second respondent made jurisdictional error at [42] by misapplying the real chance test at finding or assuming that a "low" risk of persecution could not be a real chance of persecution.

   5. The Second Respondent 111ade jurisdictional error by making a decision where:

   (a) There had not been compliance with s.473CB(l)(b) in that a document dated 08.09.2012 from the Tan1il Makkal Viduthalai Pulikal (TMVP) referred hereafter as the 'relevant missing document', had not been provided to the Second Respondent.

   (b) The Second Respondent knew that the relevant missing document had not been provided but made the decision in the knowledge that it did not have the relevant missing document.

   Particulars: CB 202 - 207.

   (c) The decision does not record that the Second Respondent did not have the relevant missing document.

   6. The Second Respondent treatment at [10] at CB 218-219 of the claim that the Applicant had a well-founded fear because the Karuna Group of the Sri Lankan Army had abducted and tortured the Applicant’s brother thereby obtaining a ransom for his release, was:

   (a) Irrational, unreasonable or capricious: or

   (b) amounted to a failure to consider a claim or a component integer of a claim; or

   (c) involved a constructive failure to exercise jurisdiction; or

   (d) ignored the Second Respondent's own statement of the evidence given by the Applicant to the delegate in relation to the threefold motivation of the Karuna Group in abducting and torturing the brother and obtaining a ransom from the family for his release.

Ground 2

1. In relation to ground 2, Mr Young submitted that the Authority had misapplied the real chance test.  The Authority’s reasons reflect a correct identification of the relevant law. Mr Young focused on the particular reasoning of paragraph 42 of the Authority’s reasons.  Paragraph 42 is not an ultimate finding in respect of the applicant’s claims. That ultimate finding was made in paragraph 49 and paragraph 50 of the Authority’s reasons in respect of the Refugees Convention. Mr Young submitted that the reference in paragraph 42 to DFAT assessing the risk of mistreatment for a majority of returning asylum seekers to be low reflected the test being applied by the Authority. I do not accept that this how the Authority’s reasons are to be read. No jurisdictional error as alleged in ground 1 is made out. The Court will return to ground 5 in a moment. 

Ground 6

1. In relation to ground 6, Mr Young submitted that the Authority’s reasons in relation to the applicant’s brother, who claimed asylum in paragraph 10 of the Authority’s reasons, was irrational, unreasonable and capricious and/or that there was a failure to take into account a component integer of the applicant’s claim which was a constructive failure to exercise jurisdiction.

2. The Authority’s reasons identify why the Authority did not accept the application’s brother was abducted because the Karuna group did not want the applicant to support Illankai Tamil Arasu Kachchi (“ITAK”) as stated in the applicant’s written claims.  In essence, the Authority did not accept what the applicant advanced as the reasoning for the brother’s abduction. The Authority referred to the fact that during the Safe Haven Enterprise visa interview, the applicant told the delegate that his brother was abducted because the Karuna Group wanted his brother to join their organisation. That, on its face, is an entirely different proposition than that advanced by the applicant in his claims. The Authority also referred to the assertion at the interview that the Karuna Group wanted the family to pay a ransom as well as referring the applicant supporting the ITAK and the Tamil National Alliance (“TNA”). The Authority reasoned that if the Karuna group did not want the applicant to support the ITAK/TNA, then it is implausible that they would have abducted the applicant’s brother rather than the applicant himself. That was a logical, rational and open reasoning process by the Authority on the material before the Authority. There is no irrationality, unreasonableness or capriciousness in the adverse finding in paragraph 10 of the Authority’s reasons. There is no failure by the Authority to consider an integer of the applicant’s claim and no failure to constructively exercise the Authority’s jurisdiction as alleged in ground 6. No jurisdictional error as alleged in ground 6 is made out. 

Ground 5

1. In relation to ground 5, Mr Young drew the Court’s attention to the correspondence prior to the delivery of the Authority’s reasons that make clear the Authority was alive to the fact that it did not have the letter dated 9 September 2012 in the material referred to by the Secretary that was identified in the applicant’s claims and which the applicant provided in support of his Safe Haven Enterprise visa application. This is a case where there is no reference by the Authority to the applicant, that the document had not been provided by the Secretary under s.473CB of the Act or that the document purportedly supporting the applicant’s claims have been lost.

2. Mr Young drew attention to the fact that the letter, dated 8 November 2016, informed the applicant that any material that he had provided to the Department was before the Authority. Mr Young also drew attention to the fact that in the Authority’s reasons, the Authority made reference to having before it the material referred to by the Secretary, and relevantly referred to the applicant’s claim that on 9 September 2012, the day after the TMVP sent the applicant a letter asking him to attend a meeting at their office, which warned of dire consequences if he did not. Nowhere in the Authority’s reasons did the Authority disclose that the letter was not in fact before the Authority. Mr Young submitted that the Authority, by reason of the failure of the Secretary to refer the relevant letter under s.473CB of the Act to the Authority, had been disabled, from constructively exercising its jurisdiction under Part 7AA. 

3. Mr Young submitted that the letter in the present case was material to the applicant’s claims. Whilst the Authority has identified part of the content of the letter, the letter has been admitted into evidence before this Court. It is apparent that the letter referred to content which has not been identified, taken into account, or considered by the Authority in conducting a review under Part 7AA. In that regard, the letter referred to there being important matters to be discussed with the applicant. I find in the present case this content to be material. The letter was brief, and was one in respect of which the context of that statement was not considered or taken into account by the Authority to determine whether the letter should not be given weight, or little weight should be placed on the letter itself.

4. It is the case that the delegate had also concluded, having the letter in front of it, that the delegate would not place weight on this document or its contents. That reasoning of the delegate is qualified by the fact that the delegate did accept that the applicant was summoned to visit the TMVP office, although not to produce a list of missing persons. The delegate’s reasons do reflect what was accepted, taking into account a summons to visit the TMVP office, by reason of the letter. The Authority’s reasons also refer to the letter warning of dire consequences. The letter in fact refers to “serious consequences”.  There is no material difference in the present case in that regard. I do, however, regard the reference to there being important matters to be discussed with the applicant, who is named in the document, by handwriting inserted into a format letter, was in the circumstances of the present case, material to the applicant’s claims and was not taken into account by the Authority.

5. Mr Bevan of counsel on behalf of the first respondent, submitted that the content of the letter referring to important matters to be discussed is not material, and that the Court can take into account the substance of the reference to the letter in the delegate’s reasons. The reference to the delegate’s reasons is not one that picks up the reference to there being important matters to be discussed and the content of the document. This was a document expressly provided by the applicant in support of his claims. I find that the document in the present case contained material information not taken into account in respect of the applicant’s claims, in the consideration identified by the Authority in paragraph 17 and 18 by the Authority.

6. I accept Mr Young’s submission that the Authority in the circumstances of the present case, was not provided with all relevant information in accordance with s.473CB of the Act and that the letter in the present case was material to the applicant’s claims. Accordingly, the Authority was disabled in those circumstances, from conducting the review required under Part 77AA.

7. Issue was also raised as to whether the circumstances of the present case fell within s.473DC of the Act, and whether the Authority’s failure in circumstances where it was aware of a document relating to the claims that had gone missing, in not raising the same with the applicant and exercising its powers under s.473DC of the Act, was engaged in legal unreasonableness. The Court’s attention was drawn to the potential problem that the document itself was one that was before the delegate when the decision was made under s.473DC(1)(a) of the Act.  That is not an answer to circumstances in which a document has gone missing, or has been lost that is apparently material to the applicant’s claim. The applicant needs to be given the opportunity of either identifying a missing or lost document if it is said to be material, and/or putting on secondary information in relation to that document. If it is the case the applicant has kept a copy of the document, the Authority may well find and it would be surprising if it did not, that the copy was not new information, and could have regard to the same. Equally, if having identified the lost material, secondary information was advanced, the Authority could have regard to the same in then determining the applicant’s claims.

8. In the circumstances of the present case, I regard the Authority as having acted legally unreasonably in the failure to exercise a power under s.473DC of the Act, in circumstances where the Authority was aware there was a material document to the applicant’s claims that had gone missing or lost, and in not inviting the applicant to provide new information in respect of the lost document. That invitation may well have generated the lost document, and that is the very reason why the power in the circumstance of the present case, was exercised legally unreasonably in circumstances where the Authority in the present case knew the document was not in its possession.

9. It is not necessary for the Court to descend further into the argument advanced by Mr Young criticising the reasons under s.473EA(1), beyond saying that it is important for the Authority to ensure that the reasons correctly reflect the position in relation to the consideration of material, and if there is material that is not before the Authority, the reasons make apparent any material information that is known to be missing, and why the Authority has come to a view that it is not necessary to exercise its powers under s.473DC of the Act.

Conclusion

1. Accordingly, in the circumstances of the present case, the Court finds that there was jurisdictional error, both by reason of the noncompliance with s.473CB of the Act which disabled the Authority from conducting the review required under Part 7AA, and by reason of the failure to exercise the power under s.473DC of the Act being legally unreasonable in the circumstances of the present case. In these circumstances, writs will issue.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  17 July 2018