DOF16 v Minister for Immigration

[2019] FCCA 3539

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOF16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3539

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misapplied the relevant law – whether the Authority’s decision was legally unreasonable – whether a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: DOF16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3276 of 2016

Judgment of: Judge Street

Hearing date: 5 December 2019

Date of Last Submission: 5 December 2019

Delivered at: Sydney

Delivered on: 5 December 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms K Pieri
HWL Ebsworth

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The oral application for an adjournment is refused.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 5 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3276 of 2016

DOF16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

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 pt.7AA of the Act made on 1 November 2016 affirming the decision of a delegate of the first respondent (“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 of the Hindu faith from a particular district in the Northern Province of Sri Lanka.

3. On 10 February 2016, the applicant applied for a Safe Haven Enterprise visa. The applicant claimed to fear harm from the Sri Lankan Army (“SLA”) as a young Tamil male with suspected Liberation Tigers of Tamil Eelam (“LTTE”) links.

4. The applicant claimed that he had a cousin who was arrested for financing the LTTE. The applicant claimed that his father worked for the LTTE when living in an LTTE-controlled area. The applicant claimed that was beaten in 2008 following a bomb blast. The applicant claimed that, when the authorities were looking for his cousin, he was questioned and then released. The applicant alleged that an SLA officer visited his house and made threats to kill him and his parents.

5. On 16 September 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

6. The Delegate referred to the applicant’s claims. In particular, the Delegate referred to the applicant’s alleged incident in 2012 when playing cricket. The applicant alleged that a particular person was excluded, a story was made about him by that particular person, he was taken away by the army, he was released but needed to report and that, within one week of reporting, a senior officer who had been admonished in the army came and threatened the applicant. The Delegate identified that the applicant alleged he then moved to Colombo.

7. The Delegate found that the applicant had embellished certain elements of his claims regarding the threats he claims his mother received since the applicant departed Sri Lanka.

8. The Delegate referred to the 2012 incident and referred to the Safe Haven Enterprise visa interview account provided by the applicant. The Delegate raised with the applicant the difference with his written claims when he said it was after a week that his cousin came and explained what happened and that his written claim suggested that he did not need to report any more. The Delegate also referred to what the applicant had said in relation to the alleged threat.

9. The Delegate accepted that the applicant and his friends had an altercation over a person they did not like playing in their group. The Delegate accepted that it was possible that the person had some connections which were used to pressure the applicant and that it is possible a more senior officer may have admonished the more junior officer in the army for abusing his Authority. The Delegate also accepted that, in such a situation, the army person, if he saw the applicant again in a store, may have threatened the applicant. That being said, the Delegate noted that, even after this incident at the field, the applicant appeared to live a relatively normal life in a particular district for at least one or two months.

10. The Delegate also referred to the applicant’s drivers licence and the applicant’s driving test.

11. Considering the relatively minor nature of the dispute over what the Delegate identified was a personal matter and the length of time that had elapsed and the current situation in Sri Lanka, the Delegate was not satisfied that this army person and/or the person who was stopped playing sports with the applicant’s friends would have made threats to kill the applicant over a number of years for this reason. The Delegate found that the applicant had fabricated this element of his claims.

12. On 21 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 attached a fact sheet and practice direction which provided the applicant an opportunity to put on new information and submissions. The applicant put on submissions, which were referred to in the Authority’s reasons.

13. 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 so far as they did not constitute new information.

14. The Authority identified new information that had been provided by the applicant, In relation to the articles and references to articles, the Authority noted that neither reports contained any personal information concerning the applicant, that the majority of the reports and articles appeared to postdate the Delegate’s decision and that a range of country information addressing the same issues was before the Delegate. In these circumstances, the Authority found that there were not exceptional circumstances to justify considering the new information.

15. The Authority referred to other new information provided by the applicant in relation to problems with the army, allegedly, from the army officer who arrested the applicant as a result of the cricket game. The Authority was satisfied that there were exceptional circumstances to justify considering that new information.

16. The Authority summarised the applicant’s claims. The Authority summarised the relevant law. The substance of certain provisions being set out by the Authority in its reasons. The applicable law was set out in an annexure to the Authority’s reasons.

17. The Authority referred to the applicant’s claims in relation to being detained in 2008. The Authority also referred to the applicant’s alleged incident in 2012 and identified the applicant’s claims concerning that cricket game. The Authority also identified that the applicant still suffers from health issues from his beatings by the SLA, including the need for admission to Concord Hospital in relation to a genital injury.

18. The Authority referred to country information. The Authority referred to changes in the applicant’s evidence. The Authority found the applicant not to be a credible witness in relation to the cricket-ground incident.

19. The Authority referred to what occurred at the arrival interview and that the applicant changed his evidence about the reason for the SLA becoming interested in him, whether he was detained or if reporting conditions applied, whether he resided in Colombo prior to leaving for Malaysia, whether he raised an additional incident with the SLA officer and the alleged extended death threats made against him after he left Sri Lanka to his mother. The Authority found that the difficulties with the applicant’s evidence were such that the Authority was not satisfied that the applicant was a witness of truth on this matter.

20. The Authority rejected the applicant’s evidence that he was involved in an incident at the cricket ground in 2012 that led to attention from the SLA, including the SLA officer as alleged, or that the applicant was detained, questioned, placed on reporting conditions and/or threatened as a result.

21. The Authority did not accept that, after the applicant left Sri Lanka, the SLA officer or anyone else made threats against the applicant to his parents or threatened his parents with arrest.

22. The Authority accepted that the applicant was detained, questioned, seriously mistreated and released by the SLA in 2008 after a bomb blast. The Authority also accepted that the applicant was detained, questioned and seriously mistreated and released by the SLA in 2009. The Authority also accepted the applicant’s complaint in relation to an incident he suffered in Australia.

23. The Authority referred to the applicant being able to continue his studies in Sri Lanka and being supported by his family. The Authority was not satisfied that the incidents of harassment identified by the applicant impacted to such an extent that threatens his capacity to subsist or otherwise constitutes serious harm.

24. The Authority noted that the applicant did not claim that any health issues following on from his mistreatment by the SLA interfered with his studies in Sri Lanka or that he was ever denied medical treatment. The Authority accepted that the applicant may require ongoing medical treatment and took into account country information. The Authority found that there is not a real chance the applicant would, as a Tamil man from the north who may require some ongoing health care, face official or subtle discrimination amounting to serious harm upon his return to Sri Lanka now or in the reasonably foreseeable future.

25. The Authority referred to Department of Foreign Affairs and Trade (“DFAT”) country information and, in particular, identifying people who may face difficulties upon returning to Sri Lanka. The Authority accepted that the applicant and his family lived in an LTTE-controlled area during the war. The Authority accepted the substance of the applicant’s claim in relation to being imprisoned in 2008 and subsequently being released and being imprisoned in 2009 and subsequently being released. The Authority also referred to the applicant being required to report weekly to the SLA after being released in 2009 until February 2010.

26. The Authority identified, having regard to the United Nations High Commissioner for Refugees’ (“UNHCR”) guidelines, why the Authority did not consider the applicant to be at risk of harm.

27. The Authority noted that the applicant did not appear to have been the subject of any adverse attention in relation to his father working for the LTTE. The Authority also noted that the applicant was not in touch with his mother’s cousin.

28. The Authority noted that the applicant himself was not a member of the LTTE and never did any work for the LTTE. The Authority referred to the applicant having been mistreated in 2008 and 2009 but having been released following such detention.

29. The Authority found that there was no suggestion that the authorities pursued any further interest in respect of the applicant’s two cousins, one of whom was released from prison in 2010.

30. The Authority referred to some low-level harassment and reporting requirements that ended in February 2010 and that the applicant was able to depart from the Colombo Airport on his own passport when he left for Malaysia.

31. In these circumstances, the Authority was not satisfied that the authorities would have any adverse interest in the applicant if he had remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities on return.

32. The Authority found the risk of harm to the applicant from the authorities based on his profile to be remote. The Authority was satisfied that the applicant will not face a real chance of harm from the Sri Lankan authorities due to any links to the LTTE on return to Sri Lanka now or in the reasonably foreseeable future.

33. The Authority accepted that the applicant would be identified as a failed asylum seeker. The Authority did not accept that the applicant will be at risk of adverse attention from the current Sri Lankan authorities when scrutinised on arrival in Sri Lanka. The Authority was not satisfied that there is a real chance the applicant will face serious harm on his return to Sri Lanka as a failed Tamil asylum seeker from Australia now or in the reasonably foreseeable future.

34. Having considered the applicant’s circumstances as a whole, the Authority was not satisfied that the applicant faced a real chance of persecution now or in the reasonably foreseeable future, either in the period following his arrival or on his return home, whether because he made a claim for asylum in Australia, for any alleged links to the LTTE, as a Tamil male with health issues from the north or any combination of these reasons. The Authority found that the applicant does not have a well-founded fear of persecution.

35. The Authority found that the applicant does not meet the requirements of the definition of “refugee” in s.5H(1) of the Act. The Authority found that the applicant does not meet the criteria in sub-s.36(2)(a) of the Act.

36. 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 in sub-s.36(2)(aa) of the Act.

37. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 23 November 2016.

2. On 30 March 2017, a Registrar of the Court made orders providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed within the time period identified by the Registrar.

3. On 7 February 2019, this Court fixed the matter for hearing and granted liberty to the parties to apply on two days’ notice.

4. 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.

5. From the bar table, the applicant sought an adjournment in order to obtain a transcript of the Safe Haven Enterprise visa interview with the Delegate. The applicant, in that regard, identified the sending of an email requesting a copy of the transcript on 31 July 2017, which was outside the timeframe identified by the Registrar, and a reply dated 1 August 2017 which identified that the Department of Immigration and Citizenship did not have a transcript of the Safe Haven Enterprise visa interview. The applicant’s email made clear that he had the CDs in respect of that interview. Reference was also made to the timetable that had been made by the Court.

6. The applicant has had ample opportunity, if he wished to do so, to obtain a transcript of the interview. There was no obligation on the first respondent to create a transcript for the applicant in respect of that interview. The applicant had the benefit of the CDs.

7. Given the procedural history of the matter and that these proceedings were commenced on 23 November 2016 and the opportunity provided by the Registrar’s orders of 30 March 2017 and the making of the orders by this Court on 7 February 2019 with liberty to apply, the Court does not accept the applicant’s explanation as to why he has not obtained a transcript if he wished to obtain one.

8. Further, the adjournment application was opposed by the first respondent. In circumstances where the applicant had the CDs and where the applicant knew the matter was fixed for hearing, to seek an adjournment on the day of hearing on the basis that the applicant wants to have created a transcript of the CDs is not a satisfactory and proper basis for an adjournment given the history of these proceedings.

9. The Court is not satisfied that an adjournment was warranted in the interests of administration of justice. It is for these reasons the application for an adjournment was refused.

10. From the bar table, the applicant submitted that he had been the subject of torture by the SLA and that he had suffered an injury to his genital area and suggested that it had not been taken into account by the Authority. It is clear from the Authority’s reasons, referred to above, that the Authority expressly referred to the genital injury as well as the incidents that occurred in 2008 and 2009. In that regard, the Authority made express reference on both occasions to the fact the applicant was released and also referred to the ceasing of reporting requirements in 2010.

11. There is no substance in the applicant’s submission that the Authority overlooked the applicant’s claims and evidence. The Authority’s reasons reflect an active intellectual engagement with the applicant’s claims and evidence and the making of adverse findings that were open to the Authority for the reasons given by the Authority. The applicant’s disagreement with those adverse reasons does not identify any jurisdictional error. The Authority identified inconsistencies in the applicant’s evidence at paragraph 22 of its reasons which cannot be said to be trivial and insignificant.

12. Further, it is apparent that the Delegate also made adverse credibility findings in relation to part of the applicant’s claims concerning the alleged cricket incident and ongoing interest in the applicant. It is apparent that the applicant sought to address those adverse findings in relation to what was identified in the Authority’s reasons as being the new claim, which the Authority found there were exceptional circumstances to justify considering.

13. On the face of the Authority’s reasons, the Authority made findings dispositive of the applicant’s claims. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error and, in substance, invites merits review. This Court has no power to review the merits.

14. From the bar table, the applicant submitted that he could not go back to Sri Lanka because he would be harmed. The Authority found that the applicant did not face a real chance or real risk of serious harm or significant harm. The applicant’s submissions in that regard do not identify any jurisdictional error.

15. From the bar table, the applicant also referred to having a Canadian wife. To the extent that the applicant is inviting the Court to determine the matter on compassionate or discretionary grounds because of his Canadian wife, the Court has no power to decide the matter on compassionate or discretionary grounds.

16. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground in the Application

1. The ground in the application is as follows:

   1. The IAA acted unreasonably in failing to put the credibility finding to put it to me in writing or at an interview for comment.

   Particulars

   a. The delegate did not make any credibility findings against me;

   b. At paragraph 22 of the IAA's decision and reasons the IAA found as follows:

   22. Given the changes and inconsistencies in the applicant's evidence, I do not find him to be a credible witness in relation to the cricket ground incident… The difficulties with his evidence are to such an extent that I am not satisfied that the applicant is a witness of truth on this matter and I reject his evidence that he was involved in an incident at the cricket ground in 2012 that led to further attention from the SLA, including the SLA officer, or that he was detained, questioned ,place on reporting condition and/or threatened as a result.

   c. The information contained in paragraph 22 was not before the Minister when the Minister made the decision under section 65. Indeed, the delegate found as follows on page 7 of his decision record:

   I accept that the applicant and his friends had an altercation over a person they did not like playing sports with their group. I accept that it is possible this person had some connections with an army person in the area and used this army person to pressure the applicant to allow him to re-join. I also accept that a more senior officer may have admonished the army person for abusing his authority for such a purpose. I also accept that in such a situation when the army person saw the applicant again in a store sometime later he may have threatened the applicant.

   d. The IAA acted unreasonably and/or there was a reasonable apprehension of bias in failing to put this new information to me in writing or at an interview in accordance with s473DC(3).

1. The review conducted by the second respondent under pt.7AA of the Act is identified in the outline provision s.473BA of the Act. The review is intended to be efficient, quick and a mechanism of limited review. The outline identifies that the Authority does not hold hearings and is required to review the decisions on the papers that are provided when the applications are referred to it and that, in exceptional circumstances, the Authority may consider new material and invite referred applicants to provide information or comment on new information at an interview or in writing.

2. The scheme of div 3 of pt.7AA of the Act identifies, pursuant to s.473DA of the Act, that the division, together with two particular sections, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to review conducted by the Authority.

3. Further, in s.473DB of the Act, it is identified that, subject to the provisions of the part, the Authority is to consider the review material without accepting or requesting new information and without interviewing the referred applicant. Section 473DC of the Act refers to the power to invite a person to give information in writing or at an interview. Section 473DD of the Act identifies that the Authority must not consider new information unless satisfied that there are exceptional circumstances, including the considerations in sub-s.473DD(b) of the Act.

4. In the context of this statutory regime, it was not necessary for the Authority to put its adverse credibility findings to the applicant nor, in circumstances where the Delegate had made a finding identifying that the applicant had fabricated an element of his claim in relation to the alleged cricket incident, can it be said that the adverse reasoning of the Authority and the absence of express consideration to the exercise of the powers under s.473DC of the Act could be said to lack an evident and intelligible justification. The evident and intelligible justification includes the opportunity given to the applicant by the sending of the letter dated 21 September 2016, which the applicant took advantage of by putting on submissions and new information.

5. It is also apparent that the applicant appreciated the issue in respect of the alleged cricket incident and sought to put on a new claim in relation to the same, which the Authority found in the circumstances did meet the requirements of exceptional circumstances to take into account.

6. The Authority was not required to invite the applicant to put in writing or comment upon adverse findings in the circumstances of the present case or to invite the applicant to attend an interview. The absence of any express reference to the same cannot be said to be legally unreasonable in the circumstances of the present case.

7. For the reasons already identified, it is not correct to suggest that the Delegate unconditionally accepted the applicant’s assertions in respect of the cricket incident, as suggested by the particulars to the ground, which expressly omitted the finding of fabrication of an element of the applicant’s claims in this regard.

8. No legal unreasonableness is made out in respect of the Authority’s adverse findings in respect of the applicant’s credibility because the Authority provided logical and rational reasons in support of the same.

9. No jurisdictional error is made out by reason of the absence of express reference and consideration to the powers under s.473DC of the Act by the Authority in respect of the making of the adverse credibility findings given the opportunity to the applicant to comment and to put on submissions and new information identified in the letter dated 21 September 2016.

10. No jurisdictional error is made out in the circumstances of the present case, including the finding of fabrication of an element of the applicant’s claims by the Delegate to which the applicant responded in the submissions by putting on new information and which the Authority took into account.

11. No jurisdictional error is made out by ground 1 paragraphs a. to c..

12. In relation to ground 1 paragraph d., the applicant alleges that the Authority acted unreasonably in failing to put the credibility information to the applicant in accordance with s.473DC of the Act. For the reasons already given, there is an evident and intelligible justification apparent on the face of the Authority’s reasons which includes the opportunity given to the applicant to put on new information and submissions as a result of the letter dated 21 September 2016 which, taken together with the statutory provisions governing the exercise of the review of the present case, means that there was no legal unreasonableness by the Authority in not exercising any power under sub-s.473DC(3) of the Act.

13. Insofar as ground 1 paragraph d. suggests that there was reasonable apprehension of bias because the adverse credibility findings were not put to the applicant, given the statutory regime to which the Court has referred and the opportunity given to the applicant to put on submissions and new information, the absence of an invitation to put on new information or to attend an interview is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits.

14. Further, there is nothing on the face of the Authority’s reasons to suggest that the Authority did other than approach the review with an open mind reasonably capable of persuasion as to the merits. No case of apprehended bias is made out.

15. No jurisdictional error is made out by ground 1 paragraph d.

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

I certify that the preceding seventy (70) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  5 March 2020