DOE16 v Minister for Immigration

[2019] FCCA 1943

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOE16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1943

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority considered all of the evidence and took into account relevant considerations – whether the Authority’s adverse findings lack an evident and intelligible justification – whether the Authority denied the applicant procedural fairness – whether the Authority acted legally unreasonably – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: DOE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3274 of 2016

Judgment of: Judge Street

Hearing date: 15 July 2019

Date of Last Submission: 15 July 2019

Delivered at: Sydney

Delivered on: 15 July 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms K Pieri
HWL Ebsworth

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

DATE OF ORDERS: 15 July 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3274 of 2016

DOE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 of the Act made on 21 October 2016 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 was found to be a Tamil from Batticaloa, Eastern Province. On 21 October 2012, the applicant arrived in Australia as an unauthorised maritime arrival.

3. On 11 February 2016, the applicant lodged an application for a Safe Haven Enterprise visa. The applicant claimed, in summary, to fear harm as a result of his Tamil ethnicity and having been employed as a driver by the Provincial Council in Batticaloa, a bus driver, and a driver for a Tamil National Alliance (“TNA”) election candidate.

4. The applicant alleges that he was detained by the army in two round ups in 2000 and 2001. The applicant also alleges that he was shot four times by unknown offenders whilst standing outside his home in 2009. The applicant also alleges that, while in hospital, unidentified people came to his family home in search of him. The applicant also alleges that he received telephone calls from people who threatened him and told him to stop working for the Provincial Council. The applicant also alleges that he was abducted and held for a day by unknown abductors who threatened him not to work for the Provincial Council and beat and tortured him in July 2009. The applicant also alleges that he then received further threatening phone calls.

5. The applicant then commenced work as a bus driver between Batticaloa and Colombo. The applicant alleges that he received a telephone call from a person who demanded the applicant transport goods for them in February 2011. The applicant alleges that he refused and then received three demanding calls. The applicant also alleges that his bus was stopped in Colombo by three or four unidentified persons in October 2011. The applicant alleges that the persons used a rickshaw to block the bus and the police were then called. The applicant then ceased driving the bus and moved his family to live near his wife’s home.

6. The applicant then worked as a driver for a TNA election candidate in August 2012. The applicant alleges that he was harassed by opposing party members who also visited his home when he was out. The applicant alleges that he was fearful for his safety and decided to leave Sri Lanka. The applicant also alleges that his wife has received two telephone calls from persons asking his whereabouts and threatening to harm him on his return.

7. The applicant claims to fear harm from unspecified paramilitary groups. The applicant also claims to fear harm by reason of an imputed link with the Liberation Tigers of Tamil Eelam (“LTTE”), being a Tamil who has scars on his body which the authorities will allegedly attribute to LTTE activity. The applicant also claims that he will be arrested, detained and harmed on return to Sri Lanka by reason of having illegally departed Sri Lanka and returning as a failed asylum seeker.

8. On 5 September 2016, the delegate found that the applicant failed to meet the criteria for a grant of a Safe Haven Enterprise visa. The delegate accepted certain aspects of the applicant’s claims but identified having concerns in respect of the credibility of the applicant’s claim that he was harassed by unknown callers in 2011. The delegate also identified that there were other aspects of the applicant’s key claims which the delegate did not accept as credible. The delegate did not accept as credible the applicant’s evidence of alleged harassment as a result of the October 2011 incident and provided reasons in support of that adverse finding. The delegate also did not accept as credible the applicant’s evidence of alleged harassment in August 2012 and provided reasons in support of that adverse finding. The delegate also did not accept as credible the applicant’s evidence in relation to unknown persons searching for him or making threatening telephone calls to his wife. The delegate found that the applicant did not have a profile that was of adverse interest to any individual or group at the time he departed Sri Lanka in October 2012.

9. On 9 September 2016, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant put on submissions dated 30 September 2016 (comprising of four pages) which were expressly referred to in the Authority’s reasons.

10. The Authority, in its reasons, identified the background to the applicant’s Safe Haven Enterprise visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act. The Authority referred to the applicant’s submissions and had regard to the same insofar as they engaged with the delegate’s decision and findings. The Authority summarised the applicant’s claims.

11. The Authority identified the requirements for s 473DD of the Act and found that the new information did not meet the requirement of there being exceptional circumstances to justify considering the new information. The Authority’s reasons do not identify any basis upon which it could be said that the Authority adopted an erroneous construction as to the requirements of s 473DD of the Act or failed to have regard to both limbs in determining whether the new information met the requirements of that provision.

12. The Authority accepted that the applicant stopped working for the Provincial Council immediately following the shooting in 2009. The Authority identified having serious doubts in relation to the threatening telephone calls which the applicant allegedly received and identified the applicant’s account of those threats to be unconvincing. The Authority also referred to the omission by the applicant in his Safe Haven Enterprise visa statement of the alleged threats in relation to transporting goods as a bus driver and him refusing to do so. In these circumstances, the Authority did not accept that unknown people made demands that the applicant transport goods for them or carry out other tasks.

13. The Authority identified inconsistencies in the applicant’s two accounts of the incident in his Safe Haven Enterprise visa statement and interview. The Authority also referred to an employment reference submitted by the applicant with his Safe Haven Enterprise visa application in relation to working for a bus company from November 2010 to October 2011. The Authority concluded that the bus company employment reference has been copied from another employment reference also submitted by the applicant with his Safe Haven Enterprise visa application, with the exception of the employment dates and a misspelling. The Authority also identified that the person who copied the bus company employment reference neglected to change the reference to “six years”, being the period of employment which corresponded to the employment dates on the other employment reference and not the bus company employment reference. The Authority found that this brings into doubt the genuineness of the document and, accordingly, gave it no weight.

14. Nevertheless, the Authority accepted that the applicant worked for the bus company from November 2010 to October 2011. Having considered the applicant’s account of the incident in October 2011, however, the Authority did not accept that the incident occurred. The Authority did not accept the applicant’s claim that he was stopped by unknown attackers when driving a bus in October 2011.

15. The Authority accepted that the applicant worked as a driver for a TNA candidate during the provincial elections in 2012. The Authority referred to country information which indicates that various parties sought to disrupt the election campaigns of their opponents with the aim of hampering the campaigns of their opponents. The Authority found that, while the country information supports harassment of the applicant at the time of the election, it was not satisfied that such harassment would lead to ongoing threatening telephone calls a significant period after the election.

16. The Authority did not accept that the applicant was threatened after an abduction incident in 2009. The Authority also did not accept that unknown people demanded the applicant transport goods for them. The Authority also did not accept that the applicant was threatened by unknown people in October 2011 while driving a bus in Colombo. The Authority also did not accept that the applicant was threatened after the 2012 election. The Authority found that the applicant was of no ongoing interest from these events that would lead to threatening calls to his wife after his departure from Sri Lanka. The Authority did not accept that the applicant’s wife received threatening telephone calls. The Authority did not accept that the applicant’s name was on a list of names with a Sri Lankan Immigration Officer.

17. The Authority found that there is not a real chance of the applicant suffering serious harm arising from his experiences during the civil war. The Authority referred to the events of 2009 and found that there is not a real chance of any harm to the applicant now as a result of these past events. The Authority also found that there is no real chance of any residual harm to the applicant arising from his driving role or his role working with the Provincial Council.

18. The Authority referred to the applicant’s fears in respect of his Tamil ethnicity. The Authority found that the country information does not support the applicant having a well-founded fear of persecution by reason of his Tamil ethnicity alone.

19. The Authority referred to the applicant’s scars. The Authority accepted that the applicant has scars. The Authority was not satisfied that the applicant’s scars would result in a real chance of harm to the applicant.

20. The Authority accepted that the applicant departed Sri Lanka illegally. The Authority referred to the Immigrants and Emigrants Act 1949 (Sri Lanka) and found that there is no real chance the applicant will be given a custodial sentence. The Authority was not satisfied that the imposition of a fine would constitute serious harm. The Authority found that, if the applicant was having difficulty meeting the cost of a fine, there is scope to request the fine be paid by instalments.

21. The Authority found that the applicant will not be subject to any mistreatment on arrival back in Sri Lanka which would extend beyond routine processing or which would amount to serious harm. The Authority was not satisfied that there is a real chance the applicant will be subjected to torture or other serious harm during the brief period of detention required to complete the process of investigation or while on remand. The Authority also found that the procedures to which the applicant would be subject as a returnee are non-discriminatory under a law of general application and therefore do not constitute persecution for the purpose of ss 5H(1) and 5J(1) of the Act. The Authority was not satisfied that there is a real chance the applicant will face any harm as a returning failed Tamil asylum seeker.

22. The Authority referred to considering the applicant’s claims individually and cumulatively. The Authority found that the applicant is of no adverse interest to the Sri Lankan authorities. The Authority also found that the applicant is not at risk of experiencing serious harm in Sri Lanka, either now or in the reasonably foreseeable future. The Authority also found that the applicant does not have a well-founded fear of persecution. The Authority found that the applicant failed to meet the requirements of the definition of “refugee” in s 5H(1)of the Act and failed to meet the criteria under s 36(2)(a) of the Act.

23. The Authority found that there were not 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 that the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. These proceedings were commended on 23 November 2016. As a result of orders made by a Registrar of the Court on 30 May 2017, the applicant had an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an amended application and submissions.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. At the commencement of the applicant’s submissions from the bar table, the applicant submitted that the Authority did not listen to him. This appears to be a reference to the fact that the applicant was not invited to attend any oral hearing before the Authority. The provisions of Part 7AA of the Act provide a limited form of review in relation to fast-track applicants. Section 473CA of the Act requires the review to be conducted as soon as reasonably practical after the decision is made. Section 473DA of the Act identifies that the natural justice hearing rule is excluded, in that Division 3 of the Act is an exhaustive statement of the requirements in relation to the conduct of the review. Under s 473DB of the Act, subject to the provisions of Part 7AA of the Act, the Authority must conduct the review without accepting or requesting new information and without interviewing the referred applicant.

4. The applicant submitted that the Authority had not taken into account the whole of his claims. There has been no part of the applicant’s claims which has been identified by the applicant that was not taken into account by the Authority.

5. The applicant referred to his brother successfully obtaining a Protection visa having earlier come to Australia. The applicant’s brother’s Protection visa application decision appears to have been provided to the Authority, and commences at page 176 of the Court Book. The applicant’s claims do not, however, on their face, reflect the substance of his brother’s claims. The applicant indicated that he and his brother were not close. The applicant did not advance any information to the Authority which indicated that he fears harm on return to Sri Lanka in relation to his brother’s profile. This failing by the applicant is referred to in the delegate’s reasons and was not the subject of any submission advanced by the applicant in his submissions dated 30 September 2016. In circumstances where no issue was raised by the applicant in relation to his brother’s claims, there was no need for the Authority to refer to the applicant’s brother’s claims. In the circumstances, the existence of the applicant’s brother’s successful Protection visa application does not identify any basis upon which it could be said that the Authority should have exercised its powers under s 473DC(3) of the Act.

6. The applicant made submissions in relation to the opportunity provided by the Authority to the applicant to provide submissions and the limited page number of those submissions. The applicant’s submissions comprised four pages. There was no request made by the applicant for any further opportunity to provide submissions to the Authority. The practice direction and the limit of any pages in relation to submissions does not identify any relevant error by the Authority.

7. The applicant submitted that claims and evidence of his had been accepted by the Authority and that the reasoning of the Authority was there would now be no problem for him in obtaining a Safe Haven Enterprise visa. The applicant’s submission in that regard does not reflect the reasoning of the Authority. It is apparent that the Authority made adverse credibility findings that were open to the Authority in respect of parts of the applicant’s claims. The applicant’s submission that the Authority had simply reasoned that there would now be no problem for the applicant is incorrect. On the face of the material before the Court, the Authority correctly identified the relevant law and the applicant’s claims and made findings which were open to it and dispositive of the applicant’s claims.

8. The applicant submitted that his brother had been granted a Protection visa in 2013 and that he wanted the same treatment. The applicant’s assertion in that regard does not identify any relevant error by the Authority. For the reasons already given, there was no issue raised by the applicant before the Authority in respect of the applicant’s brother that would have required the Authority to make any express reference to the applicant’s brother’s protection visa. In these circumstances, there was no need for the Authority to make express reference to the applicant’s brother’s claims. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the amended application are as follows:

   1.The Authority acted unreasonably in failing to put new information to me for comment.

   Particulars

   a.The Authority made a number of credibility findings that were not before the Minister when the Minister made the decision under section 65, in particular with regards to my work references in paragraph 16 of its decision and reasons; and

   b. The authority acted unreasonably in not inviting me in writing or at an interview to ask me to comment on the new information under s473DC.

   2. The decision of the Authority was affected by jurisdictional error as the Authority denied me procedural fairness by not disclosing to me that a delegate of the Department of Immigration and Border Protection had issued a certificate under section 473GB of the Migration Act to the Authority.

   Particulars

   a. On 5 September 2016 Thomas Marwick of the Department of Immigration and Border Protection issued a certificate and notification regarding the disclosure of certain information under s473GB of the Act in regards to a document which appears to relate to my brother’s RRT decision;

   b. Similar to the s438 certificate issued in the matter of MZAFZ v Minister for Immigration & Anor [2016] FCCA 1319, the certificate describes the information “relating to internal Department working documents and business affairs” and as such does not meet the statutory prescription of s438(1)(a), nor does the applicant's s473GB certificate meet the statutory prescription of s473G(1)(a);

   c. Even though s473GB(3) allows the Authority to disclose the certificate and its information to me, the Authority made a decision not to exercise its discretion to disclose the certificate to me for comment;

   f. It is difficult to speculate what influence the certificate had on the Authority’s findings, nevertheless the Authority has denied me procedural fairness and a real and meaningful opportunity to be heard (MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183).

Ground 1

1. In relation to ground 1, the applicant submits that he should have had an opportunity to comment in writing or attend an interview in respect of the Authority’s adverse findings in relation to the bus company employment reference, to which the Authority gave no weight.

2. It is apparent that the Authority accepted the applicant’s alleged period of employment as a bus driver. Whilst the Authority identified the reference to “six years” in the bus company employment reference as creating doubt about the genuineness of the document, it is apparent that the Authority accepted the period for which the applicant alleged he was working.

3. The Authority’s reasoning in relation to the bus company employment reference does not identify any basis upon which it could be said to be unreasonable that the Authority did not expressly consider exercising its powers under s 473DC of the Act in respect of giving the bus company employment reference no weight or in relation to the reasoning of the Authority in respect of the same.

4. Given the Authority’s acceptance of the applicant’s employment with the bus company, the absence of any express consideration by the Authority of the powers under s 473DC(3) of the Act cannot be said to lack an evident and intelligible justification. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error.

5. The only new information which the Authority took into account has been identified. The applicant submits that the Authority took into account new information and that the applicant was not given an opportunity to comment in respect of the same. Rather, the Authority made adverse findings on the information which had been before the delegate and on which the applicant was on notice. Those adverse findings were open for the reasons already given. This is not a case where there was a new issue or claim which required the Authority to expressly consider or exercise the power under s 473DC of the Act. The applicant’s assertion that it was unreasonable not to invite him to comment on the Authority’s adverse findings does not identify any jurisdictional error. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, this refers to a certificate issued pursuant to s 473GB of the Act at page 146 of the Court Book. That certificate referred to s 473GB of the Act applying to a document or information in a document being an enhanced screening file.

2. The certificate identified that:

   “…the disclosure of any matter contained in the document would be contrary to the public interest because the document is an internal working document which contains details of investigative/intelligence methods used by the Department in verifying the identity and claims of the applicant.”

3. The certificate referred to a further document of the same kind in relation to the applicant’s brother’s claims and identified that the information should not be disclosed because the document was given to the Department in confidence.

4. Section 473GB of the Act provides:

   (1) This section applies to a document or information if:

   (a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

   (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

   (2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:

   (a) must notify the Authority in writing that this section applies in relation to the document or information; and

   (b) may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.

   (3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

   (a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

   (b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.

   (4) If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.

   (5) The Minister may issue a written certificate for the purposes of subsection (1).

5. On the face of the certificate, there is no basis to conclude that the same was invalid. There is nothing before the Court to support the proposition that the Authority took into account the information in the certificate or acted upon the same. On the face of the evidence before the Court, the applicant suffered no practical injustice by reason of the existence of the valid certificate under s 473GB of the Act.

6. Further, there is nothing in the circumstances of the present case to identify whether or not the Authority acted legally unreasonably in not disclosing the certificate. Given the absence of any reference to the certificate or the subject matter of the certificate, this provides a logical and rational explanation as to why the Authority made no express reference to the powers under s 473DC(3) of the Act.

7. Even if the certificate were found to be invalid, given the findings the Court has made in respect of the reasons of the Authority and the Authority not acting upon the certificate, the Court finds that the applicant suffered no practical injustice by reason of the existence of the certificate, the information the subject of the certificate or the non-disclosure of the certificate. Accordingly, no jurisdictional error arises by reason of ground 2.

8. The Court does not accept the contention advanced in the applicant’s written submissions that the certificate was invalid. The Court does not accept that there is any substance in the contention that the Authority used the documents or the information the subject of the certificate. The submission that such documents or information were used illegally is without substance. For the reasons already given, the Court does not accept that the applicant suffered any practical injustice or that the Authority acted legally unreasonably in failing to disclose the existence of the certificate or the documents the subject of the certificate. No jurisdictional error is made out by ground 2.

9. Accordingly, the amended application is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 30 August 2019