DNN17 v Minister for Immigration

[2018] FCCA 638

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNN17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 638

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – whether the Authority failed to accept new information – whether the Authority failed to consider the details of the applicant’s case – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA, 473CB, 473DA, 473DB, 473DD, 473DE, 473GA, 473GB, 476

Applicant: DNN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2494 of 2017

Judgment of: Judge Street

Hearing date: 15 March 2018

Date of Last Submission: 15 March 2018

Delivered at: Sydney

Delivered on: 15 March 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr A Fisher

HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the fixed amount of $5,250.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2494 of 2017

DNN17

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 Act1958 (Cth) (“of the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 11 July 2017 affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 10 September 2012. The applicant lodged an application for a Safe Haven Enterprise visa on 8 February 2016. The applicant claimed to fear harm because as a child he carried messages for the Liberation Tigers and Tamil Eelam (“LTTE”) and his father was forced by the LTTE to carry those messages and pass messages to the applicant. The applicant alleged that during the Sri Lankan civil war the applicant and his family were displaced. The applicant alleged that they were relocated into internal displaced people (“IDP”) camps and that he and his father were named as having carried messages for the LTTE and questioned by the Sri Lankan Criminal Investigation Division (“CID”) and that officers of the CID threatened and assaulted the applicant and his father.

3. The applicant alleged his father moved away due to fear and to look for work. The applicant alleged he was questioned about his father’s whereabouts and mistreated, and that the applicant feared that the treatment would escalate in his being abducted and disappeared. The applicant alleged that his mother and father arranged for him to depart illegally by boat in August 2012. In mid-2015 the applicant’s mother told him his father had been caught by the authorities and was assaulted and required medical treatment and that the applicant’s father had now gone into hiding, and that the authorities asked about the applicant, and that the Sri Lankan army has also inquired about him at his school and among his friends.

The Authority’s decision

1. On 20 October 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. The Authority wrote to the applicant on 28 October 2016 identifying that the application for the protection visa had been referred to the Authority for review. The Authority’s letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. In response to that invitation, submissions were provided to the Authority on 30 November 2016. The Authority’s reasons refer to those submissions and to the extent that they responded to the delegate’s decision and the applicant’s claims, the Authority did not consider the submissions to be new information and had regard to the same.

2. Amongst the material provided by the applicant, relevantly, was a World Policy blog, which was not before the delegate, and which the Authority correctly identified as being new information. The Authority in that regard, in referring to the World Policy blog, noted that it pre-dates the delegate’s decision by less than approximately four weeks and that the applicant had not provided any explanation as to why the applicant had been unable to provide the World Policy blog report to the delegate or why the report contains personal credible information that was unknown at the time of the delegate’s decision. The Authority was not satisfied there were exceptional circumstances to justify considering the World Policy blog and did not have regard to it.

3. The Authority also identified and took into account more recent country information consistent with s 473DE(3)(a) of the Act. The Authority summarised the applicant’s claims and set out the relevant law. The Authority referred to the applicant’s claims in relation to being a messenger and accepted that the applicant would pass through checkpoints and deliver messages to the LTTE.

4. The Authority did, however, refer to the inconsistencies in the applicant’s evidence and took into account exaggeration by the applicant of his evidence so as to strengthen his claims for protection. The Authority also made reference to new claims that the applicant made, which the Authority found supported that the applicant was exaggerating his claims to suggest he was personally involved in assisting the LTTE, whereas he was merely carrying out school activities, albeit LTTE related.

5. The Authority also referred to the applicant raising a new claim that his father transported weapons for the LTTE. The Authority found that new claim to be an example of the applicant exaggerating his claims and found it undermines the applicant’s claims about his father transporting weapons for the LTTE and his evidence Singhalese people paid his father to do that. The Authority found this to be inconsistent with the LTTE being a Tamil organisation. The Authority found it implausible the Singhalese would pay the applicant’s father to transport weapons for the LTTE. The Authority accepted that the applicant was questioned by Sri Lankan authorities when travelling to and from school, but doubted it was with the frequency that the applicant claims. The Authority considered these claims to be a further example of the applicant exaggerating risk of harm to himself.

6. The Authority also made reference to the applicant’s claim his father went into hiding. The Authority considered this to be a further example of the applicant exaggerating his claims. The Authority made reference to the fact that the applicant states his father left because of fear but also to find work. The Authority made reference to the claim that the father relocating to find work would suggest he openly engaged in work and that is not consistent with the applicant’s father being in hiding. The Authority also referred to the applicant’s complaint of fear and his mother contacting his father by telephone and found that suggested that the applicant’s father was neither missing, nor had disappeared. The Authority does not accept the applicant’s father was caught or assaulted and then released in 2015. The Authority found it is not plausible the applicant’s father would be released if the Sri Lankan authorities genuinely suspected the applicant’s father had transported weapons for the LTTE during the Sri Lankan civil war.

7. The Authority rejected the claim that the applicant’s father transported weapons for the LTTE or was paid to do so by Singhalese people and rejected the claim that the Sri Lankan authorities are looking for or targeting the applicant’s father on suspicion that he was transporting weapons for the LTTE. The Authority rejected the claim that Sri Lankan authorities are looking for the applicant. The Authority did accept that since the applicant has left his home village the Sri Lankan authorities have asked about his whereabouts with his mother, school and friends. The Authority did not consider that this is anything beyond routine questioning and rejected that it is related to any suspicion the applicant or his father have had any involvement in transporting weapons or other activities for the LTTE beyond carrying messages. The Authority referred to the applicant being a Tamil from the Northern Province.

8. The Authority also took into account the United Nations High Commissioner for Refugees (“UNHCR”) guidelines and the monitoring of Tamils by Sri Lankan authorities. The Authority did not consider any possible harm to the applicant from such monitoring amounts to serious harm when having regard to the non-exclusive instances of serious harm in s 5J(5) of the Act. The Authority was not satisfied the applicant has a profile which would bring him to the attention of Sri Lankan authorities as someone connected to the LTTE. The Authority reached this conclusion having regard to the DFAT country information and the UNHCR guidelines regarding the Sri Lankan authorities not imputing every Tamil with a pro-LTTE political opinion and that the Sri Lankan authorities have sophisticated intelligence gathering techniques.

9. The Authority was not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities or any other armed groups for an imputed pro-LTTE or anti-Sri Lankan government political opinion, because of his age, he is a Tamil, he was born on the Northern Province, he lived in an LTTE controlled area, he and his father were forced to carry messages for the LTTE, the LTTE gave money to his parents, and/or he and his parents were questioned and assaulted by the Sri Lankan authorities, now or in the reasonably foreseeable future if the applicant returns to Sri Lankan.

10. The Authority referred to the applicant being a failed asylum seeker and was not satisfied the applicant faced a real chance of serious harm from the Sri Lankan authorities due to being a failed asylum seeker now or in the reasonably foreseeable future if he returns to Sri Lanka. The Authority referred to the applicant’s illegal departure and found there is not a real chance the applicant would face a custodial sentence or a significant period of detention or imprisonment. The Authority found that the questioning and detention the applicant may experience would be brief and would not constitute serious harm as defined in the Act.

11. The Authority was also satisfied that the provisions and penalties of the Immigration and Emigration Act 1948 (Sri Lanka) are laws of general application that apply to all Sri Lankans equally. The Authority found the law is not discriminatory on its terms, nor is there any country information to suggest that the law is applied in a discriminatory manner, or that it is selectively enforced. Having considered the applicant’s claims, the Authority was not satisfied that any process or penalties that the applicant may face as a person who left Sri Lanka illegally and returned to Sri Lanka would amount to serious harm.

12. The Authority was not satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would constitute persecution for the purpose of the Act. The Authority was not satisfied that the applicant has a well-founded fear of persecution from the Sri Lankan authorities or another armed groups for reason or a combination of reasons in s 5J(1)(a) of the Act now or in the reasonably foreseeable future if he returns to Sri Lanka. The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant doesn’t meet the criteria in s 36(2)(a) of the Act.

13. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia there is a real risk the applicant will suffer significant harm. The Authority found the applicant does not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Hearing before this Court

1. These proceedings were commenced on 4 August 2017 and on 16 November 2017 a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that in summary this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair the application would be dismissed with costs. The Court explained it would identify the evidence and then hear submissions from the applicant and then hear submissions from the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that his life would be in danger if he were to be returned to Sri Lanka and that he had submitted all the material he was able to obtain and that he just wasn’t believed. The applicant asserted that his case had not been assessed properly and he wanted a second opportunity. The Court explained to the applicant that the Court could not decide the case on compassionate grounds, and it had no discretion in determining whether or not to set aside the decision of the Authority. The Court repeated the explanation to the applicant that the Court could only consider whether the Authority’s decision was one that complied with the statutory obligations and complied with the requirements of procedural fairness. The Court explained to the applicant it could not revisit the merits and had no power to do so.

4. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Authority properly considered the new information in accordance with the requirements of s 473DD of the Act and took into account both limbs of that provision. The Authority’s reasons expressly refer to both limbs in respect of the World Policy blog report. There is no basis to find that the Authority adopted a narrow meaning of exceptional circumstances and no basis to conclude that the Authority failed to have regard to both limbs of s 473DD of the Act in determining whether to accept as new information the World Policy blog report.

5. The Authority’s reasons for finding that the World Policy report did not meet the requirements of s 473DD of the Act cannot be said to be illogical or irrational. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of a review. On the face of the material before the Court, the Authority complied with the requirements of procedural fairness by giving the applicant an opportunity to put on submissions and new information, and by having regard to the same subject to the application of the provisions of Subdivision C and Division 3 of Part 7AA of the Act. It is apparent that the Authority did so in the present case. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds of the application are as follows:

   1. The Second Respondent in its decision and reasons in paragraph 4 refused to accept the World Policy Blog Report that was published 4 weeks before the delegate’s decision on the ground that why “the applicant has not provided an explanation why he was unable to provide the delegate or why the report contains personal credible information that was unknown at that time of the delegates decision.” This finding was made using excessive authority to refuse to accept new information and further made an unreasonable finding on unreasonable grounds just because the applicant was unable to provide the above report that was published 4 weeks before the interview. The Second respondent made a jurisdictional error thereby.

   2. The Second Respondent made an error in its finding by failing to accept that the applicant was a minor at the time he passed messages to the LTTE under his father’s direction and has no knowledge of the contents of the messages and also couldn’t understand them. The Second respondent made an erroneous finding that “I consider the application provided credible, detailed claims at the SHEV interview explaining how he would pass through check points and deliver the messages.” The Second Respondent failed to understand the fact that the messages are confidential and not to be tampered with and further the applicant had no knowledge of it but knew the way and manner how he passed through the check point being a young boy. Here the Second Respondent made an error on relevant fact finding and made a jurisdictional error.

   3. The first and Second Respondent used excessive authority to reject the claims at the interview that the applicant’s father’s involvement in transporting arms for the LTTE, his father’s disappearance and the authorities’ interrogations with that regard were as applicant’s exaggerations. These relevant facts are ignored by the Respondents and made an erroneous finding that this made a jurisdictional error.

   4. The Second Respondent used excessive authority in rejecting the main claims but was accepting the general claims in order to reject the applicant’s protection visa on the grounds that the applicant would not face serious harm on his return. The Respondents categorically rejects the main claims such as the father’s involvement in transporting weapons, and his involvement in passing messages for the LTTE and thereby failed to accept the relevant facts and made jurisdictional errors.

   5. The Second respondent failed to give the applicant to respond to any doubts the Respondents had during the interview and after the submissions to the Second Respondent and thus made an error on the grounds of procedural fairness.

2. In relation to ground 1, for the reasons summarised above, there is no basis to find that the Authority failed to have regard to both limbs of s 473DD of the Act and the Authority’s reasons expressly refer to both limbs as summarised above. This was a case where there was no submission advanced explaining why the report that was in existence, albeit, only four weeks before the delegate’s decision, was not provided to the delegate. The Authority’s reasons in that regard cannot be said to be unreasonable, irrational or illogical. No jurisdictional error as alleged in ground 1 is made out.

3. Ground 2 reflects a disagreement with the Authority’s findings in relation to the applicant’s absence of knowledge of the contents of the messages that he passed to the LTTE. It is also suggested that the Authority erred in finding that the applicant had provided credible detail in relation to his passing through checkpoints. Those findings by the Authority were open on the material before the Authority and cannot be said to be irrational or illogical or unreasonable.

4. The applicant maintained that the Authority failed to understand that the documents were confidential and could not be tampered with and that accordingly, the Authority had made a jurisdictional error. The applicant’s contention in ground 2 in relation to the content of the messages is, in substance, an invitation for this Court to engage in an impermissible merits review and effect a disagreement with the adverse findings by the Authority. There is no basis on the material before the Court to find that the Authority failed to understand the applicant’s claims. On the face of the material before the Court, the Authority made dispositive findings in respect to those claims that were open to the Authority. Further, the adverse credibility findings by the Authority in relation to the applicant’s claims, given the reasons of the Authority referring to the exaggeration that the Authority found, were open on the material before the Authority. No jurisdictional error as alleged in ground 2 is made out.

1. In relation to ground 3, this reflects a disagreement with the Authority’s adverse finding in relation to the applicant’s father’s involvement in transporting arms. The Authority gave reasons why the Authority rejected this new claim and it was open to the Authority to do so for the reasons given by the Authority. Ground 3 in substance reflects a disagreement with the adverse finding by the Authority and does not identify any jurisdictional error. No jurisdiction error as alleged in ground 3 is made out.

2. Ground 4 reflects a further disagreement with the adverse findings in respect to the applicant’s fear of serious harm and in respect to the applicant’s claims. For the reasons already given, those adverse findings were open to the Authority and in substance the ground invites this Court to engage in impermissible merits review. No jurisdictional error as alleged in ground 4 is made out.

3. In relation to ground 5, the nature of the review under Part 7AA of the Act is one in relation to which, under s 473DA of the Act, together with s 473GA and s 473GB of the Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority. In that regard, under s 473DB of the Act, the Authority must review a fast track reviewable decision referred to it under s 473CA of the Act by considering the review material provided to the Authority under section 473CB of the Act without accepting the request of new information and without interviewing the referred applicant.

4. The Authority was not required under Part 7AA of the Act to invite the applicant to comment or give the applicant an opportunity to respond to the adverse findings made by the Authority. On the face of the material before the Court, the Authority complied with the statutory regime and there is no denial of procedural fairness by the Authority not inviting the applicant to comment or respond to the adverse findings in the present case. No jurisdictional error as alleged in ground 5 is made out.

5. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 April 2018