DNQ17 v Minister for Immigration
[2017] FCCA 3032
•7 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DNQ17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3032 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that the IAA relied on irrelevant and outdated information, gave inappropriate weight to certain information, did not consider all the information before it, gave inadequate reasons for its decision and reasoning, denied the applicant common law procedural fairness. |
| Legislation: Migration Act 1958, ss.36, 430, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473EA, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 |
| Applicant: | DNQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2496 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 29 November 2017 |
| Date of Last Submission: | 29 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C. Zheng of Solutions Legal Sydney |
| Solicitors for the Respondents: | Mr E. Cheesman of Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2496 of 2017
| DNQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived in the Cocos Islands as an illegal maritime arrival on 4 November 2012. On 30 December 2016 he lodged an application for a Safe Haven Enterprise Visa (Subclass 790) with the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity and imputed affiliation with the Liberation Tigers of Tamil Eelam (“LTTE”). On 29 May 2017 the applicant’s application was refused by a delegate of the first respondent (“Minister”). His matter was then referred to the Immigration Assessment Authority (“IAA”) for a review of that departmental decision. The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
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.
For the reasons which follow, the application will be dismissed.
Background facts
The applicant is a Tamil born in the Northern Province of Sri Lanka. In his written submissions, the Minister summarised the applicant’s claims in the following terms, which I adopt:
6(a) when he was young his father was shot and killed by Sri Lankan armed forces on suspicion of having LTTE links;
(b)in May 2005 the applicant’s older brother did not come home one day. His mother learned that he had joined the LTTE, and she informed the village officer and the police. His mother travelled into LTTE-controlled territory in search of the applicant’s brother and saw him once or twice. On her return to government-controlled territory army soldiers spoke to her and made reference to looking for her son;
(c)around 2007 or 2008 the applicant’s brother visited the family in Batticaloa, in possession of his gun, his LTTE identity card and a cyanide capsule. The applicant’s mother was concerned for the family’s safety and the family went to an aunt’s home in Batticaloa that evening;
(d)four men visited the aunt’s house that night and spoke to the applicant’s grandmother at the door. They identified themselves as being from the LTTE and said they knew the applicant’s brother was there, or would visit. The men threatened to harm the applicant’s brother or family members if he did not return to the LTTE. The applicant’s brother left the next morning and has not been seen since. The applicant stated at the SHEV interview that the four men may have been from the Karuna group (the LTTE’s rivals) and may have been trying to trick the applicant’s brother into returning to the LTTE so that they could capture him;
(e)the applicant’s mother made further attempts to locate the applicant’s brother and lodged a tracing request with the International Committee of the Red Cross (ICRC) on 12 May 2008;
(f)the applicant’s mother contacted the LTTE and was advised that the applicant’s brother had been killed in battle;
(g)in about 2009, six armed officers from the Criminal Investigation Department (CID) came to the family home and searched for weapons. The CID asked about the applicant’s brother and his mother informed them of his death. The CID told the applicant’s mother and aunt to report to the CID office in Colombo the next day. They did so, and the applicant’s mother was interrogated. The CID may have followed up this interrogation with phone calls to the applicant’s mother;
(h)in August or September 2012, four CID officers came to the family home and asked about weapons. They took the applicant to Colombo where he was interviewed by senior CID officers, assaulted and threatened. The applicant was held overnight and left at the Batticaloa police station the next day. The applicant believes his mother contacted a human rights agency to complain about him being taken, and that because he was a student in school uniform he was released. The applicant’s mother came to the police station and signed for him. The police warned her that the CID was likely to harass the applicant again;
(i)the applicant then went to stay at a friend’s home. A few days after his release, two policemen came to his mother’s house asking about his whereabouts. His mother told them the applicant was away for work. The police told her that the applicant had been required to report to them after his release and he should come to the police station or they would take another family member;
(j)his mother, fearing for the safety of the applicant and his younger brother, arranged for both to travel to Australia;
(k) after the applicant’s arrival in Australia he spoke to his mother who advised that the police had come looking for the applicant and his brother. His mother advised that his third surviving brother had gone to Malaysia to avoid harm;
(l)the police have returned to question the applicant’s mother about the applicant and his brothers and threatened their safety if they return to Sri Lanka.
(References omitted)
The applicant claimed that he feared harm on return to Sri Lanka and would not be able to obtain protection. As summarised by the IAA, he claimed to fear being arrested at the airport upon return to Sri Lanka and detained for investigation or charged on the basis of:
a)his illegal departure from Sri Lanka;
b)his failure to report to the police after his release in 2012;
c)being a supporter of the LTTE;
d)possession of LTTE weapons brought to his house by his brother;
e)intelligence offences against the government by informing the Australian government about human rights abuses by Sri Lankan authorities;
f)being involved in anti-government activities in Australia.
The applicant further alleged that in February 2014 the Department had released his personal details in a data breach and he feared that the Sri Lankan authorities would aware that he claimed asylum in Australia.
The IAA’s decision and reasons
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 accepted as plausible that the applicant’s father was killed by Sri Lankan armed forces when he was young; that his older brother was recruited into the LTTE at 14 and that his mother had made attempts to locate his brother. The IAA did not accept that the applicant was of adverse interest to authorities in Sri Lanka because of his links to relatives who were associated with the LTTE and was not satisfied that the authorities would have an interest in him on this basis if he were to return to Sri Lanka. The IAA’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:
11.… The IAA did not accept as genuine the applicant’s account of a visit by his brother to the family in Batticaloa in 2007/2008, considering it implausible on the basis of country information that an LTTE fighter would have been able to enter government-controlled Batticaloa or that the brother would have carried his LTTE identity card as claimed. The IAA did not accept the applicant’s account of four men from either the LTTE or Karuna group visiting his family home in search of the applicant’s brother, considering it implausible that LTTE members would have been able to enter the area or that either group would have decided not to search the house because of concern the family might complain to the police.
12.The IAA accepted that at some point the applicant’s mother was informed that the applicant’s brother had died in battle. It accepted as plausible that in 2009 the CID made a weapons search in the applicant’s home [noting at the time it was common for the authorities to harass Tamils and look for weapons], but did not accept that the visit was motivated by any specific interest in the applicant’s brother given the passage of time from when the applicant’s mother was said to have alerted the authorities to the brother having joined the LTTE (about 3 years).Nor did it accept that the applicant’s mother was arrested by the CID and told to report to their offices in Colombo for questioning, for the same reason and noting that the CID had an office in the Eastern Province which she could have attended.
13.The IAA accepted as plausible that the CID came to the family home in August or September 2012 and asked about weapons and mistreated the applicant, but did not accept that they took him to Colombo where he was interviewed by senior CID officers. In making this finding, the IAA took into account what it considered to be a significant inconsistency in the applicant’s account- namely, that he claimed in his written submission and at his SHEV interview that this incident occurred while he was a student, and claimed that this event occurred in 2012;but in his SHEV application he claimed that he completed school in 2010. Noting that no weapons were found during the 2012 CID search, and on the basis of the findings set out above, the IAA did not accept that the applicant was of adverse interest to the authorities when he departed Sri Lanka.
14.The IAA did not accept that the applicant’s personal details were released by DIBP in the data breach as the breach only affected people who were in immigration detention on 31 January 2014. DIBP records indicated that the applicant was not in immigration detention on that date.
15.…On the totality of the evidence, the IAA was not satisfied that there is a real chance of the applicant being persecuted in Sri Lanka in the reasonably foreseeable future.
16.As the IAA did not accept that the applicant was imputed as a supporter of the LTTE, imputed with possession of LTEE [sic] weapons brought to the applicant’s house by his brother, failed to report to the police after being interviewed in Colombo in 2012, or would be suspected of informing about human rights abuses by Sri Lankan authorities or of being involved in anti-government activities in Australia, it was, for the reasons set out above, not satisfied there is a real risk the applicant would face significant harm in Sri Lanka.
17.The IAA accepted that the applicant would be identified on return to Sri Lanka as an illegal departee who sought asylum in Australia. Based on available country information, the IAA did not accept the applicant faced a real risk of the relevant harm (for the purposes of ss36(2)(a) or 36(2)(aa) for this reason. It considered that he may be briefly detained in poor conditions and face a fine, but that this would be pursuant to a non-discriminatory law of general application, did not rise to serious or significant harm, and that any harm would not be intended by the authorities.
(References omitted)
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
The decision of the second respondent (the Authority) was affected by jurisdictional error in that the Authority failed to adequately exercise its jurisdiction to review my claims by:
• not understanding or misunderstanding my fear of harm and persecution if I was returned to Sri Lanka
• relying on irrelevant material in making its decision and did not refer to more recent and detailed information
• failing in its duty to consider my entire circumstances
• failing to give proper weight and consideration to important evidence attached to the claims of my brother who has been granted protection in Australia and which supports my claims
A number of other issues were also raised the applicant’s written submissions and in his solicitor’s address to the Court.
Ground 1
The applicant did not particularise his allegation that the IAA had not understood his claims or explain what he meant by it. As a result, the assertion lacks meaningful substance. Further, consideration of the IAA’s decision does not reveal that its understanding of the applicant’s claims was deficient. In the circumstances this allegation has not been made out.
Ground 2
The allegation that the IAA had ignored relevant material but relied on irrelevant material was also unparticularised and unexplained. Moreover, the applicant did not seek to show that, even if those allegations were to have been made out, such conduct could have had a material effect on the outcome of the review and that that outcome was affected by jurisdictional error as a result. Consequently this allegation has also not been made out.
Ground 3
The applicant also did not particularise the third allegation, that the IAA had not considered his “entire circumstances”, or explain what he meant by it. As a result, this assertion also lacks meaningful substance. Further, it is not apparent that the IAA did not, in fact, consider the applicant’s claims. Consequently, this allegation has not been made out.
Ground 4
The fourth ground of the application invites the Court to review matters which are properly the province of the IAA. The applicant does not suggest that unreasonableness or illogicality attached to the IAA’s considerations, merely that it reached conclusions with which he disagrees. Such circumstances to not amount to reviewable error.
Written submissions
Inadequacy of reasons
In his written submissions the applicant argued that the IAA’s reasons had been inadequate to explain some of its conclusions. However, a failure to provide reasons in accordance with the requirements of the Act has, in similar circumstances, been held not to amount to reviewable error: Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362. In this case, the relevant statutory provision was s.473EA whose terms are relevantly the same as the provision considered in SZLSP, s.430. I conclude that the reasoning expressed in SZLSP should apply to s.473EA and that s.473EA is not a requirement which goes to jurisdiction in the sense that a decision of the IAA will be invalid if a statement of reasons complying with the requirements of the section has not been prepared in the particular case. Consequently, in this case, even if the Tribunal’s reasons were inadequate, without more that would be insufficient to find that the IAA’s decision was affected by jurisdictional error: DYK16 v Minister for Immigration and Border Protection [2017] FCCA 2749.
Inadequacy of reasons may, however, be evidence of inadequate consideration or reasoning which will lead to the IAA’s decision being affected by jurisdictional error. In this case the applicant submitted that:
a)the IAA had given little weight to the murder of his father and his brother’s involvement with the LTTE. The implication was that the IAA had given inadequate reasons for having done so;
b)the IAA’s acceptance that in 2012 he may have been mistreated and his home searched for weapons was inconsistent with its finding that circumstances in Sri Lanka had changed following the end of the civil war. The applicant submitted that the IAA had failed to explain how these matters could be reconciled;
c)the IAA failed to give sufficient reasons for its implicit conclusion that he would be treated leniently by the new Sri Lankan government, notwithstanding his profile.
In relation to (a), the IAA said in relation to the applicant’s father and brother:
6.I accept as plausible that his father was shot and killed by Sri Lankan armed forces when he was young. Many civilians were killed during the war and it is plausible that being a Tamil male living in an LTTE controlled area he was suspected of having LTTE links.
7.It is plausible that the applicant's older brother was recruited into the LTTE, either willingly or forcibly, in 2005 when 14 years of age; the recruitment of child soldiers by the LTTE is well documented.
...
13.… The applicant’s brother joined the LTTE as a fighter in 2005 and from the applicant's account this was known to some of the Sri Lankan authorities as his mother alerted the police and the village officer at the time and army soldiers spoke to her about her LTTE son when she passed the checkpoint after searching for him. I consider it implausible that if the CID had any specific interest in the applicant's brother that they waited until 2009, over three years later, to come to the family home to make enquiries about him. …
…
26.I have accepted that the applicant's father was suspected of having LTTE links and was shot and killed by the authorities during the war and that his brother joined the LTTE as a fighter in 2005. …
27.There is no indication that the applicant's mother or extended family faced any problems as a result of his father's imputed LTTE links or subsequent death. Although a number of Sri Lankan authorities were aware the applicant's brother joined the LTTE as a fighter in 2005, no adverse action was taken by any authorities against the applicant, his mother or other family members at this time. I have accepted that the CID conducted searches of the family home in 2009 and 2012 looking for weapons, but I have not accepted that this was motivated by any interest in the applicant's brother. Considering the information before me I am not satisfied that the authorities had an interest in the applicant because of his family links to relatives with LTTE links and I am not satisfied that they would have an interest in him on this basis on return to Sri Lanka now.
It is clear from these passages that the IAA explained with adequate clarity and cogency why it was not persuaded that the applicant claim to fear harm as a consequence of his father and brother’s circumstances was well-founded.
In relation to (b), citing country information, the delegate recorded that the Sri Lankan civil war ended in 2009 with the defeat of the LTTE. The IAA discussed the 2012 search of the applicant’s home in the following terms:
15.I have accepted during and in the aftermath of the war that the authorities maintained close scrutiny over the Tamil population and in cordon and search exercises came into homes and harassed the occupants. In this environment I accept as plausible that the CID came to the family home in August/September 2012 and asked about weapons. I also accept as plausible that the officers mistreated the applicant as it is widely reported that the Sri Lankan authorities acted with impunity in abusing the general Tamil population.
In that passage the IAA explained in appropriately logical terms why a search of the applicant’s home might have taken place even after the civil war had ended. It also explained why it thought it plausible that the applicant would have been mistreated during that search, notwithstanding the end of the civil war.
In relation to (c), the IAA found at para.27 of its decision record that the applicant did not have a profile which would have been concern to the Sri Lankan government. Consequently no reconciliation of supposedly inconsistent facts was necessary in this connection.
Credibility
The applicant referred to a number of his factual allegations which the IAA did not accept and submitted that as the IAA had made “no explicit finding of incredibility … hence credibility should be presumed”. Logically that contention cannot be made out. It is not necessary that a person be disbelieved for their account to not be accepted. In this case, a number of the applicant’s factual allegations were considered implausible because other evidence cast doubts on them and this led to the IAA not accepting many of those allegations. However, the IAA did not, in terms, find that the applicant had not been credible. This is hardly surprising as it had not had an opportunity to see him give evidence. What it did do was review the available material and conclude that when all the evidence was considered, the applicant’s account lacked persuasive force.
The applicant’s submissions concerning credibility do not reveal reviewable error.
Oral submissions
The applicant submitted that he should have been given an opportunity to address the IAA’s concerns regarding his credibility. However, as already noted, the IAA made no credibility finding in relation to him.
The applicant also submitted that if the IAA questioned certain facts, he ought to have been given the opportunity to address its concerns regarding those matters. He referred in this connection to the IAA’s conclusion that the allegations concerning the alleged visit of his brother in 2007/08 were implausible, when it said:
I do not accept that an LTTE fighter would have been able to enter government controlled Batticaloa town. Country information indicates that movement between government and LTTE controlled areas was strictly regulated by armed checkpoints and the security authorities viewed Tamils crossing between as suspect and they were subject to stringent checking. Furthermore he claims his brother was armed and carrying his LTTE identity card and cyanide capsule. I do not accept an LTTE fighter would risk detection in a government controlled area by carrying his LTTE identity card.
However, the natural justice hearing rule has been excluded from operating in IAA reviews and the Act provides no right to be provided with information unless it is “new information” as defined: ss.473DA – s.473DF. But even if information is “new information”, s.473DE(3) does not require it to be given to an applicant if it is not specifically about the applicant but is general information about a class of persons of which the applicant is a member. In this case, to the extent that any information relevant to the present allegation was “new information”, it was information which fell within the exclusion in s.473DE(3) and so did not have to be given to the applicant. Further to the extent that the applicant alleged that the IAA’s conclusions in the quoted paragraph were based on “assumptions”, the factual basis for those conclusions is clear enough from the IAA’s discussion of the evidence before it. The statement that the IAA did not accept an LTTE fighter would risk detection in a government controlled area by carrying his LTTE identity card was no more than a logical conclusion based on the obvious risk of capture which the Sri Lankan army’s security measures presented to a person carrying such a card.
The applicant also submitted that he should have been given an opportunity to address the IAA’s concerns expressed in para.10 of its decision record where it said:
Furthermore I find the applicant's account of the visit that evening by four men claiming to be from the LTTE to be implausible. Similarly to the applicant's brother, these four LTTE members would have had to pass security checkpoints to enter government controlled Batticaloa. Having done so it is implausible that they merely spoke to the. grandmother at the front door and did not seek to enter the house to locate the applicant’s brother. I do not accept the applicant's assertion that they did not do so due to concern the family may complain to the police. When questioned at his SHEV interview why the LTTE would bother to send four members to locate his brother, yet not seek to come into the house to take him, the applicant speculated that perhaps these men were from the Karuna group. The delegate put to the applicant that it was not plausible that the Karuna group, who were rivals to the LTTE, would have told his grandmother that the brother must return to the LTTE. In response the applicant speculated that they may have been trying to trick his brother into returning to the LTTE so that they could capture him. I am not satisfied by the applicant’s explanation. The LTTE were brutal in their treatment of deserters and the Karuna group brutal in its treatment of LTTE members and I do not accept that either group would have decided not to look for the applicant’s brother inside the house because of concern the family might complain to the police.
To the extent that they are not dealt with by the discussion in [26] above, the matters to which the applicant referred in his address to the Court regarding para.10 of the IAA’s decision record concerned the IAA’s thought processes. These are not “information” falling within the scope of provisions such as s.473DC: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1196 [18]. Consequently, the Act did not require such matters be put to him.
The applicant also suggested that the IAA had been biased but did not seek to amend his application or to otherwise propound a recognizable or properly cognizable claim of bias: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [69]. Consequently, to the extent that an allegation of bias was made, it has not been made out.
Conclusion
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 7 December 2017
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