DKT17 v Minister for Immigration

[2019] FCCA 317

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKT17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 317

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s claims disbelieved in part and other claims found not to be well-founded – whether the Authority erred in refusing to accept new information, in making an unreasonable finding, in dealing with information provided at interviews or otherwise considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB

Cases cited:

BMB16 v Minister for Immigration [2017] FCAFC 169

CSR16 v Minister for Immigration [2018] FCA 474

DBE16 v Minister for Immigration [2017] FCA 942

MZZJO v Minister for Immigration (2014) 239 FCR 436

Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481

Applicant: DKT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2421 of 2017

Judgment of: Judge Driver

Hearing date:	12 February 2019
Date of last submissions:	5 March 2019

Delivered at: Sydney

Delivered on: 4 April 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 31 July 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2421 of 2017

DKT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 11 July 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 5 February 2019. 

3. The applicant is a citizen of Sri Lanka who came to Australia (arriving at Cocos (Keeling) Islands) in October 2012 and on 1 August 2016 applied for a Safe Haven Enterprise Visa (SHEV). He claimed to fear harm if returned to Sri Lanka on the basis of his Tamil ethnicity, in that he claimed that the Sri Lankan Army (SLA) suspected young Tamil males to be Liberation Tigers of Tamil Eelam (LTTE) cadres. He claimed to have a facial affliction that had attracted SLA suspicion in the past. The applicant claimed that in August 2012 he and a group of friends were at Wellawatte Beach. He claimed that SLA officers arrived and interrogated and beat him and his friends. He claimed that he escaped with a broken thumb and that some in his group were arrested. The applicant fled to Jaffna but news of his encounter with the SLA spread, and the Criminal Investigation Department (CID) and paramilitary groups visited Jaffna and questioned people about him.

4. On 10 March 2017 the delegate refused to grant the applicant a SHEV.[1] On 15 March 2017 the applicant’s matter was referred to the Authority.[2]  On 14 April 2017 the applicant sent an email to the Authority making submissions and referring to a number of documents, including a TamilNet article dated 12 April 2017[3] and a Committee Against Torture report dated 30 November 2016.[4]

   [1] Court Book (CB) 160

   [2] CB 184

   [3] attached at CB 211

   [4] CB 209

Authority’s decision

1. On 11 July 2017 the Authority affirmed the decision under review.[5]

   [5] CB 218

2. The Authority noted that the applicant’s submission raised a new claim that the Sri Lankan authorities obtained information from an education provider about the applicant and his friends at a beach in Colombo.[6] The Authority listened to the SHEV interview, and while it accepted the applicant was nervous at the interview, at which he did not advance the claim, it was not persuaded that this explained why his SHEV application was also silent about the Sri Lankan authorities contacting his education provider. It was not satisfied there were exceptional circumstances justifying its consideration of the new claim.

   [6] CB 219 at [5]

3. The Authority found that the TamilNet article post-dated the delegate’s decision, but that the contents of the article were not relevant to the applicant’s claims. On this basis the Authority did not consider the article.[7]

   [7] CB 220 at [7]

4. The Authority recorded that the applicant in his submission requested that it consider the latest Amnesty International, Human Rights Watch and UK Home Office reports. The Authority found that the Committee Against Torture report pre-dated the delegate’s decision and that the applicant provided no explanation as to why the report could not have been provided to the delegate, or as to the matters in s.473DD(b)(ii) of the Migration Act 1958 (Cth) (Migration Act).[8] The Authority was not satisfied that there were exceptional circumstances justifying consideration of the document.

   [8] CB 220 at [8]

5. The Authority indicated that the applicant had not sufficiently identified the international reports referred to in his submission but the Authority sought to identify the relevant documents.[9]  It did not take into account the latest versions of the Amnesty International and Human Rights Watch reports as each pre-dated the delegate’s decision, and the applicant had given no explanation as to why the reports could not have been provided or as to how the reports contained information that was unknown at the time. The Authority was not satisfied there were exceptional circumstances justifying consideration of the two reports. The Authority did take into account the latest UK Home Office report as it considered there were exceptional circumstances justifying its consideration.

   [9] CB 220 at [9]

6. The Authority set out the applicant’s claims at [10].[10]  It addressed the incident at the beach from [13],[11] finding that the applicant failed to make any mention of the beach incident during his entry interview.[12]  The Authority found that undermined the credibility of the claim considering that the applicant had described in his SHEV interview this incident as being the catalyst for him departing Sri Lanka.  It also referred to various inconsistencies in the presentation of the applicant’s claims concerning the incident.[13] The Authority at [17] recorded that it had difficulty accepting as plausible the applicant’s claims regarding how the Sri Lankan authorities became aware of his being in Northern province and his claims regarding passenger lists. For instance, it found that if the authorities were genuinely interested in him they could easily have located him while he was hospitalised. The Authority also had regard to country information regarding discrimination against Tamils in Sri Lanka.[14]

   [10] CB 220-221

   [11] CB 222

   [12] CB 222 at [15]

   [13] CB 222-223 at [16]-[17]

   [14] CB 223 at [18]

7. The Authority accepted that the applicant and his friends had encountered the authorities at the beach as he claimed, but was not satisfied that the applicant suffered a spinal injury as he claimed or that he lost consciousness or was hospitalised. It rejected that the applicant returned to Northern province in fear of the authorities.[15] The Authority rejected the applicant’s claims that authorities came searching for him after the beach incident.

   [15] CB 224 at [19]

8. The Authority also considered whether the applicant had a fear of harm in connection with being a Tamil from Northern province, or as a failed asylum seeker, or as a person who departed Sri Lanka illegally. It was not satisfied these claims resulted in protection obligations.

9. The Authority was not satisfied that the applicant met the requirements of the definition of refugee in s.5H(1) of the Migration Act,[16] neither was it satisfied that he was entitled to complementary protection pursuant to s.36(2)(aa) of the Migration Act.[17]

   [16] CB 227 at [38]

   [17] CB 229 at [45]

The current proceedings

1. These proceedings began with a show cause application filed on 31 July 2017.  The applicant continues to rely upon that application.  There are six grounds in it:

   1. The Second Respondent in its decision and reasons, rejected unreasonably and used excessive authority to refuse to accept the contents of the Articles in English published by Tamilnet dated 12 April 2017, Human Rights watch and the UK Home Office via the UNHCR refworld website which are recent reports, on the grounds that there are no exceptional circumstances to consider where as the Second Respondent relied on the report by UK Home Office on 28 March 2017 which it not a recent publication. Ignoring relevant materials on irrelevant grounds by the Second respondent is a jurisdictional error.

   2. The Second Respondent made an error in ignoring the fact that at the entry interview the applicant was asked to give basic information about himself and was not permitted to give detailed information during that interview which he gave in the SHEV claims and during the DIBP interview.  The finding of the respondent is unreasonable and arbitrary and had made a jurisdictional error.

   3.The Respondents misinterpreted and was confused as to the details given during the interview through the assistance of an interpreter, and failed to give the applicant an opportunity to respond to any doubts the respondents had before rejecting the claims. The Respondents failed to adhere to procedural fairness and thus made a jurisdictional error.

   4.The Second respondent used excessive authority in rejecting the applicant's main claims without any valid grounds or evidence and solely on speculations and suspicions. As the Respondents had not given serious considerations using the excessive authority, jurisdictional error was made thereby.

   5.The finding of the Second Respondent is arbitrary and confusing. The Second responded all throughout the rejection failed to give any valid grounds or evidence in rejecting the applicant’s main claims except to reject on presumption and wrongfully rejecting the applicant on credibility grounds.

   6. The Second respondent failed to give the applicant to respond to any doubts it had and thus made an error on procedural fairness.

   (errors in original)

2. I received as evidence the applicant’s affidavit filed with his application and the court book filed on 24 October 2017.

3. Only the Minister filed written submissions in advance of the trial of the matter on 12 February 2019.  I invited oral submissions from the applicant.  He sought an adjournment on the basis that he needed legal advice because he had not received the Minister’s submissions prior to the hearing and, although the submissions had been read to him (at least in part), he had not understood them.  I refused the adjournment application on the basis that the applicant had had since 26 October 2017 (when procedural orders were made by consent in this matter) to file additional material and seek whatever advice he wished.  However, given that the applicant was, in effect, unable to engage with the Minister’s submissions, I had counsel for the Minister present those submissions orally and then invited the applicant to respond.  He made some submissions in relation to Grounds 3 and 6 but sought and was granted the opportunity to provide submissions in response in writing.

4. It appears that the applicant subsequently attempted to file a document electronically but it was rejected by the registry.  My chambers staff detected the exchange on the electronic file and invited the applicant to send the document to my chambers.  My staff were eventually able to access several documents which turned out to be an x-ray, a photograph of an eye and a photograph of a back.  Meanwhile, the Minister filed supplementary submissions by leave on 5 March 2019 addressing the issue raised by the applicant orally at the trial.

Consideration

Ground 1 – the new information

1. I agree with the Minister’s submissions on this ground.

2. In the first ground the applicant contends that the Authority rejected unreasonably and “used excessive authority to refuse to accept” the contents of three articles: the TamilNet article dated 12 April 2017 and the Human Rights Watch and the UK Home Office reports. The applicant submits that ignoring relevant materials is a jurisdictional error.

3. The Authority was not permitted to consider any of the reports provided or identified by the applicant if those reports constituted new information under s.473DC, and the Authority was not satisfied of the matters prescribed in s.473DD. The Authority considered the applicant’s invitation to consider the reports, and cannot be said to have ignored the reports. The relevant question is whether the Authority misapplied s.473DD.

4. The Authority found in respect of the TamilNet article that, whilst it post-dated the delegate’s decision, it related to a man facing charges in court and was not relevant to the applicant’s claim.[18] The applicant had not in respect of the TamilNet article identified its relevance, or satisfied the Authority of the matters prescribed in s.473DD. The Authority’s determination in respect of the article was open to it. I draw the same conclusion in respect of the Human Rights Watch article. The Authority found that the applicant had not advanced any explanation as to why the most up to date report released in January 2017 could not have been provided to the delegate, or why the report contained information that was unknown at the time of the delegate’s decision.[19] Leaving aside the infelicity in expression, the Authority’s reasons adequately explain its determination for being unsatisfied of the matters in s.473DD.

   [18] CB 220 at [7]

   [19] CB 220 at [9]

5. As to the UK Home Office report, the Authority identified the most recent report, which the applicant had not identified specifically in his submission to the Authority, and took the most recent report into account.[20]  It was open to the Authority to do so.

   [20] CB 220 at [9]

6. The task of the Authority, in considering whether to receive the new information, was to engage with that information and the requirements of the Migration Act. The Authority did so. Ground 1 fails to establish any jurisdictional error.

Ground 2 – whether a finding was unreasonable

1. In the second ground the applicant asserts that the Authority ignored that he was asked only to give basic information at the entry interview, and that its findings were unreasonable and arbitrary. The applicant is here presumably referring to the Authority’s findings at [15][21] in which the Authority relied in part on the lack of any mention of the beach incident by the applicant during his entry interview as a reason for rejecting parts of that claim.[22]

   [21] CB 222

   [22] CB 223-224 at [19]

2. That the Authority took into account what the applicant said, or relevantly, did not say, at his entry interview, does not in the circumstances of this case amount to jurisdictional error.[23] The Authority adopted an appropriately “cautious” approach in its reliance on the failure of the applicant to mention details of the beach incident at the entry interview. It was mindful of the fact that the applicant was not asked about the incident during the entry interview, and that the purpose of the entry interview was not to assess the applicant’s claims for protection. Nevertheless the Authority referred to the beach incident as being the “catalyst” for the applicant’s departure from Sri Lanka and therefore considered the applicant’s failure to mention the incident in the entry interview undermined the credibility of his claims.

   [23] see MZZJO v Minister for Immigration (2014) 239 FCR 436 at [56] and CSR16 v Minister for Immigration [2018] FCA 474 at [50]

3. The Authority referred to various other inconsistencies in the presentation of the applicant’s claims, culminating in its conclusions at [19].[24] There was no error in the Authority’s approach.

   [24] see CB 222-223 at [16]-[17]

4. This ground does not establish any jurisdictional error. 

Grounds 3 and 6 – the conduct of earlier interviews

1. In the third ground the applicant asserts that “the Respondents misinterpreted and was confused as to the details given during the interview”, and that it failed to give the applicant an opportunity to respond to its concerns. The applicant claims he was denied procedural fairness. The sixth ground is to similar effect, by which the applicant contends that the Authority failed to give the applicant an opportunity to respond to its doubts.

2. The Authority’s obligation to give procedural fairness to the applicant in this matter was limited.[25] The Authority in the conduct of a fast-track review is required to make a fresh decision and is not restricted to the correction of error in relation to the issues considered by the delegate to be determinative.[26] The Authority did not conduct an interview in this matter, and neither was it required to.[27] Further, no denial of procedural fairness arises from the mere fact that the Authority made different findings to those findings made by the delegate.[28]

   [25] section 473DA(1)

   [26] BMB16 v Minister for Immigration [2017] FCAFC 169

   [27] section 473DB(1)

   [28] DBE16 v Minister for Immigration [2017 FCA 942 at [59]

3. In the circumstances, there was no error by the Authority in failing to put any concerns it had to the applicant.

4. To the extent that the applicant in the third ground asserts error in respect of the delegate and the conduct of the SHEV interview, the Court does not have jurisdiction to conduct a review of the delegate’s decision. The applicant had an opportunity, which he took, to advise the Authority of any concerns he had with the delegate’s decision and the delegate’s interpretation of his claims. The applicant sent a submission to this effect to the Authority.[29]

   [29] CB 206

5. There is a related question whether the Authority performed its statutory task of review lawfully by engaging with the applicant’s submissions in relation to the inadequacies of the SHEV interview.  In his submission to the Authority on 14 April 2017[30] the applicant is critical of the delegate’s decision which might be interpreted also as a criticism of the SHEV interview.  The Authority at [4] of its decision states that it had regard to that submission.  At [5][31] the Authority states that it had listened to the recording of the SHEV interview.  The Authority there acknowledges that the applicant was nervous at that interview but nevertheless draws an adverse conclusion at [16][32] concerning inconsistencies in the applicant’s claims and evidence.

   [30] CB 206-210

   [31] CB 219

   [32] CB 222

6. If the applicant had put to the Authority specific concerns, for example, relating to the quality of interpretation at the SHEV interview, the Authority would have needed to have engaged with those concerns.  In the present case, however, the criticisms of the delegate are more general and focus more specifically on the reasons for the delegate’s decision rather than the conduct of the interview. 

Other matters

1. At the trial the applicant supplemented Grounds 3 and 6 with the proposition that the Authority failed to give him the opportunity to respond to any doubts it had, and that the Authority misinterpreted and was confused about his responses given during the hearing.

2. The applicant contended in the context of these grounds that the Authority fell into error because it failed to respond to the applicant’s concerns as expressed in submissions put to it dated 14 April 2017.[33]  In his submission to the Authority,[34] the applicant submitted that the Minister’s Department “failed to consider my answers I gave in relation to the above fact at the PV interview”. The “above fact” was the applicant’s failure to mention during the entry interview the fact that he was beaten by police in 2012 at Wellawatte Beach, which the delegate had observed by reference to his written claims had “prompted his decision to leave Sri Lanka”.[35]

   [33] CB 206

   [34] at CB 207

   [35] CB 164

1. To the extent the applicant’s claim is a challenge to the Authority’s reliance upon his failure to mention a critical aspect of a claim during his entry interview, this argument is addressed in relation to Ground 2 of the application.

2. To the extent the applicant’s argument raises a question of procedural fairness, the Authority’s obligations towards the applicant were limited. As held by Barker J in DBE16, ss.473DA, 473GA and 473GB provide an exhaustive statement of the natural justice hearing rule in relation to reviews and the Authority is not required to disclose adverse information or potential findings or conclusions to an applicant.

3. In its reasons the Authority expressly noted that it had been provided with a submission dated 14 April 2017 and that the submission was “in part the [applicant’s] response to the delegate’s decision and in part repeats his earlier claims. I do not consider these parts of the IAA statement to be information and I have had regard to them”.[36]  The Authority noted at [5] that it had listened to the SHEV interview.

   [36] CB 219 at [4]

4. Any assertion that the Authority fell into error in failing to respond to the applicant’s concerns expressed in his submission cannot be accepted; first, because as a question of principle the Authority is not engaged in a review of the delegate’s decision to correct error, but to conduct a de novo review on the merits; secondly, because in any event the Authority did take the applicant’s submission regarding the SHEV interview into account.

5. The task of the Authority was to conduct a de novo review of the merits of the applicant’s claims. As Gageler, Keane and Nettle JJ observed in Plaintiff M174/2016 v Minister for Immigration:[37]

   Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it.

   [37] (2018) 92 ALJR 481 at [17]

6. That is, the Authority was not required to engage with the applicant’s submissions directly in so far as they sought to challenge the delegate’s decision. The task of the Authority was to determine for itself whether the applicant was owed relevant protection obligations, and in so doing, it was required to consider the applicant’s representations advancing any new information, and submissions as to why any new information should be accepted by the Authority. It was sufficient for the Authority to address the beach incident as it did at [15],[38] having listened to the SHEV interview.

   [38] CB 222

7. Further, and in any event, at [15] the Authority addressed the failure by the applicant to mention the beach incident in the SHEV interview, and in so doing made express reference to the applicant’s submission raised in the submission to the Authority. The Authority stated:

   I am mindful too the applicant explained in the SHEV interview and in the IAA submission he was not asked about the beach incident during the entry interview. However, given the beach incident is the catalyst to the applicant’s departure from Sri Lanka, I consider the applicant not raising the beach incident at the entry interview undermines the credibility of his claims.

8. In my view, the Authority did perform its statutory task in accordance with the Migration Act and no jurisdictional error is established by these grounds.

Grounds 4 and 5 – other asserted errors

1. These grounds overlap to some extent but no jurisdictional error is demonstrated.

2. In the fourth ground the applicant contends that the Authority erred in rejecting the applicant’s main claims without any valid grounds of evidence and solely on speculations and suspicions. To similar effect, in the fifth ground the applicant asserts that the Authority’s findings were arbitrary and confusing and that the Authority failed to give any valid grounds or evidence in rejecting the applicant’s main claims.

3. Whilst making findings without any evidence, or on the basis of mere speculation might point to jurisdictional error in a particular case, the Authority here gave clear, detailed and cogent reasons for rejecting critical parts of the applicant’s claims to fear harm. The Authority did not need positive evidence in order to reason by reference to inconsistent or implausible claims that it was not satisfied of those claims. The Authority’s credibility findings were open to it. The grounds fail to identify error by the Authority.

Conclusion

1. The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:    4 April 2019