DOP17 v Minister for Immigration

[2018] FCCA 647

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 647

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a protection visa – whether the Authority constructively failed to exercise its jurisdiction – whether the Authority misconstrued or misapplied s.473DD of the Migration Act 1958 (Cth) – whether the exercise of the Authority's discretion not to conduct a hearing lacked any evident and intelligible justification – no jurisdictional error identified – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DB, 473DC, 473DD, 473DE, 476

Applicant: DOP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2509 of 2017

Judgment of: Judge Street

Hearing date: 15 March 2018

Date of Last Submission: 15 March 2018

Delivered at: Sydney

Delivered on: 20 April 2018

REPRESENTATION

Counsel for the Applicant: Mr R Chia

Solicitors for the Applicant: Siva Logan Solicitors

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The further amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2509 of 2017

DOP17

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 Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 17 July 2017 affirming a decision of the delegate not to grant the applicant a protection 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 on 13 October 2012 as an unauthorised maritime arrival. On 15 December 2016 a delegate found the applicant failed to meet the criteria for the granting of a protection visa. 

3. The applicant was found to be an ethnic Tamil from Mannar, and the applicant claimed to have owned a communications centre that provided communications services and call facilities. The applicant alleged that in 2009 he was accused of providing facilities to the Liberation Tigers of Tamil Eelam (“LTTE”) and required to go to the Sri Lankan Army Intelligence office. The applicant alleged that from that point, until when the applicant departed in 2012, the applicant was continually threatened with abduction or harm by people from the Sri Lankan Army Intelligence office to whom the applicant would pay small amounts of money. The applicant claimed that this occurred at least 20 times. The applicant alleged that since his departure, his wife has told him that people are still searching for him and have gone to his home and his mother’s house. The applicant alleged that if he were returned to Sri Lanka he would be subjected to serious harm from the Sri Lankan Army Intelligence office.

The Authority’s decision

1. On 21 December 2016 the Authority wrote to the applicant identifying that the application had been referred to the Authority for review. The Authority provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information.

2. The applicant provided submissions to the Authority in response to the letter identified in the Authority’s reasons, the first being submissions dated 20 January 2017. The Authority noted those documents included excerpts of new information from a report of the United Nations Committee Against Torture (“UNCAT”) adopted 30 November 2016, and a New York Times article reporting on the UNCAT’s observations dated 7 December 2016.  The Authority was satisfied the information could not have been provided prior to the decision being made and that there were exceptional circumstances to justify considering the same, and took the submissions and those documents into account.

3. The Authority also referred to taking into account country information, being an updated DFAT report, which the Authority was entitled to have regard to under s 473DE(3)(a) of the Act. The Authority identified that the applicant was given an invitation to comment on the DFAT report by letter dated 1 May 2017, and submissions in response were provided on 15 May 2017. The Authority identified that so far as the submissions dealt with the DFAT information, the Authority was satisfied that there were exceptional circumstances to justify having regard to the same.

4. The Authority identified on 26 May 2017 that the Authority received an email from the applicant’s representative attaching an unsigned statement taken by the representative over the telephone from the applicant’s wife, who remains in Sri Lanka. The Authority identified that statement concerned new events relevant to the applicant’s claims, which are said to have occurred following the decision of the delegate.  The Authority was satisfied that the applicant could not have provided the information prior to the decision being made and that there were exceptional circumstances to justify considering the same.

5. The Authority then referred to the submissions made on 20 January 2017 requesting an opportunity to respond to any adverse credibility or plausibility findings at the hearing. The Authority referred to s 473DC of the Act providing that the Authority may get any information which was not before the Minister which it considers relevant, and that it does not have a duty to get, request, or accept new information. The Authority made reference to the requirements of the Act, that the Authority must review a decision by considering the review material without interviewing the referred applicant and other than in exceptional circumstances, the Authority must not consider new information. In that regard, the Authority referred to s 473DB(1)(b) of the Act as well as referring to s 473DD of the Act. The Authority decided in the circumstances of the case not to invite the applicant to provide any response or information beyond the invitation that had been issued by the Authority to comment on the country DFAT information.

6. The Authority summarised the applicant’s claims and set out the substance of the statement by the applicant’s wife, that the CID came to her house on 7 April 2017 asking about the applicant, and that she told them he was not there, and that her mother in law told her that the CID had also come to her house to ask about the applicant, and that the applicant’s wife was allegedly told that they knew he was in Australia and that he should return home. It was also asserted that a person in custody had identified the applicant as assisting the LTTE and that they wanted the applicant’s mother to call the applicant. The applicant’s wife allegedly reported the incident to the Mannar Citizen Committee and was afraid to report it to the police, as they are linked to the CID and she feared she would be harmed.

Assessment of Refugee Convention criteria

1. The Authority correctly identified the relevant law. The Authority accepted the events alleged by the applicant between 2009 and his departure which referred to members of the Eelam People’s Democratic Party (“EPDP”) paramilitary group coming to his shop, using his services and requesting him to pay money. The applicant alleged he refused to pay, and that they came requesting money and making threats to hide weapons and charge him, and that the applicant gave them small amounts of money such as 2 lakhs at a time. The applicant claimed this occurred at least 20 times and that one main person would come accompanied by others, and that the main person was from the army intelligence and a person who accused the applicant of being a supporter of the LTTE.

2. The applicant alleged that the harassment worsened after his marriage, and for a period of around two years people kept demanding 10 lakhs and the applicant continued to give them small amounts of money. The Authority referred to the motivation for extortion and accepted that people have threatened and extorted the applicant and made allegations about the LTTE and threatened he would be charged, and that these references continued until his departure.

3. The Authority made reference to the applicant’s representative submitting that the applicant’s brother took over the business and was harassed about the applicant but not extorted, which suggested that the motivation behind the extortion was not purely financial.  However, the applicant’s evidence in his statement was that his wife was threatened for money, even when the extorters knew the applicant was in Australia.

4. The Authority noted that the applicant faced no further formal investigation, was never detained, charged or sent to rehabilitation, or was not subjected to any sort of reporting requirement. It was in those circumstances the Authority did not accept that beyond the initial inquiry in 2009, the army, CID, EPDP or any other group or person had any actual suspicion over the applicant or his alleged LTTE connections. 

5. The Authority found the applicant was identified as a target because of the 2009 allegation, but the continued harassment of the applicant and later his wife was opportunistic and financially motivated, taking advantage of the earlier enquiry to extort money. The Authority was not satisfied that Sri Lankan authorities or any other groups actually believed the applicant to have a link to, or to have supported the LTTE at any time after his questioning at their office in 2009. The Authority found the applicant was not of adverse interest or suspicion to the Sri Lankan authorities at the time of his departure.

6. The Authority referred to the alleged incident in the applicant’s wife’s statement and identified reasons in support of having doubts in that regard. The Authority referred to the delay in raising the alleged incident. The Authority found it difficult to accept that, if this were true, the information would not have been provided to the Authority earlier. The Authority also took into account that the applicant claimed no connection to the LTTE and no such allegations were previously made against him, other than those in 2009. The Authority found it highly coincidental that what appeared to be new allegations would be made against the applicant some five years after his departure from Sri Lanka and following the refusal of his protection visa. Further, the Authority found the statement was vague, saying only the CID asked about the applicant and were advised he was not home but as, on the evidence in the statement, the CID were already aware of his whereabouts, it is difficult to understand the utility of these alleged visits.

7. The Authority also referred to whilst not entirely implausible, the apparent interest of the applicant eight years after the end of the Sri Lankan civil war because of the alleged past assistance to the LTTE being contrary to country information. In these circumstances, the Authority was not satisfied the applicant has been identified as having assisted the LTTE or that his wife or mother was visited by the CID in April 2017.

8. The Authority was not satisfied there is a real chance of the applicant again being targeted for extortion, abduction or other harm by paramilitary groups or the Sri Lankan authorities. The Authority was not satisfied there is a real chance of the applicant being harmed because of the past accusation of providing support to the LTTE or that he will otherwise be imputed to support that group or Tamil separatism.

9. The Authority was not satisfied on the evidence that there is a real chance of the applicant being perceived to support the LTTE and being harmed for that reason, even taking into consideration his ethnicity, the past imputation of support to the LTTE, and the fact that he left the country and claimed asylum. 

10. The Authority was not satisfied there is a real chance the applicant will experience discrimination, monitoring, harassment or any other mistreatment at a level that would amount to serious harm in the reasonably foreseeable future, whether from Sri Lankan authorities or any other persons.

11. The Authority was not satisfied there is a real chance of the applicant being seriously harmed because of his ethnicity, alleged LTTE association, past extortion or failure to meet the extortion demands, imputed pro-LTTE political opinion, perceived wealth including as a returnee from Australia, membership of a particular social group of wealthy Tamil business owners imputed to have provided services to the LTTE or any combination of these factors.

12. The Authority found that the applicant was of no adverse interest to the Sri Lankan authorities or other persons and was not satisfied there is a real chance that his past investigation in 2009, or subsequent treatment by army intelligence officers or EPDP, even if know, would form the basis of any interest or suspicion. The Authority found that undergoing investigation of this nature a number of hours does not amount to serious harm. The Authority did not accept there is a real chance the EPDP will use the opportunity of the applicant’s forced return to subject him to harm. 

13. The Authority was not satisfied there is a real chance of the applicant being seriously harmed, whether immediately on return to Sri Lanka, after returning to his home area, or subsequently in the reasonably foreseeable future because he is a member of a particular social group of returned asylum seekers or otherwise because he has claimed asylum in Australia, including when considered in combination with his ethnicity and other circumstances.

14. The Authority noted that the applicant departed Sri Lanka legally using his own passport, and found there is not a real chance that he will be detained, prosecuted, punished or otherwise harmed because he fled illegally as claimed in the submissions.

15. The Authority was not satisfied there is a real chance the applicant will be seriously harmed by reason of the Sri Lankan authorities or any other group or person. The Authority was not satisfied any of the treatment that the Authority had accepted the applicant had experienced, will amount to serious harm when considered cumulatively, even considered in light of the ongoing impact of the past threats on the applicant’s mental state. The Authority found the applicant did not meet the definition of Refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

Assessment of complementary protection criteria

1. The Authority found there are 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 that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds of the further amended application are as follows:

   1. The second respondent (Authority) asked itself the wrong question and thereby constructively failed to exercise it jurisdiction.

   Particulars

   The Authority held that in Sri Lanka, between 2009 and 2012, the applicant had modified his conduct by making payments to Sri Lankan Army intelligence and EPDP paramilitaries. In finding that it was not satisfied the applicant faced a real chance of serious harm, the Authority relied in whole or in part upon the fact that threats were not carried out without considering whether the applicant had modified his conduct due to well-founded fear of harm.

   2. Further or in the alternative, the Authority at [7] either misconstrued and misapplied the requirements of section 473DD of the Act or the exercise of its discretion under subsection 473DC(3) was legally unreasonable.

   Particulars

   The Authority failed to consider whether “information ... proposed to be given" to it satisfied the requirements of paragraph 473DD(b) of the Act.

   In the alternative, the exercise of the Authority's discretion not to conduct a hearing lacked any evident and intelligible justification.

Ground 1

1. In relation to ground 1, Mr Chia of counsel submitted that the Authority had failed to take into account that the applicant had modified his conduct by making payments to Sri Lankan Army intelligence and the EPDP paramilitary. Mr Chia submitted that the Authority had relied upon the proposition that the threats had not been carried out and it had failed to consider whether the applicant had modified his conduct due to a well-founded fear of harm.

2. Mr Chia took the Court to paragraphs 14, 22, 25 and 29 of the Authority’s reasons. Mr Chia submitted that the reference to the Authority not being satisfied that the applicant would be targeted for extortion was not something that dealt with the applicant’s claims in relation to the threats for extortion. The Authority’s reasons are not to be read with a keen eye for error.

3. The reference by the Authority to the applicant being targeted for extortion clearly includes the applicant facing threats of extortion. I do not accept that the Authority found that the applicant had modified his conduct in circumstances giving rise to an assumption that the Authority failed to address in determining whether the applicant had a well-founded fear of harm.

4. The definition of “well-founded fear of persecution” within s 5J(1) of the Act for the purposes of s 36(2)(a) of the Act is a forward looking test focusing on whether there is a real chance that if returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in s 36(2)(a) of the Act. Further, s 36(2)(aa) of the Act is also to be assessed in this manner when considering whether, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country there is a real risk that the non-citizen will suffer significant harm. 

5. The Authority did consider whether the applicant would be of interest to the Sri Lankan authorities on the basis of having implied LTTE links and thus subject to harm. However, the Authority was not satisfied that the applicant would be of any adverse interest. Based on the Authority’s assessment of the applicant’s claims and the country information, there is no error in the Authority’s findings that there is no real chance of the applicant being seriously harmed by the Sri Lankan authorities or any other group or person and the Authority’s finding that the applicant did not meet the criteria under s 36(2)(aa) of the Act. 

6. On the face of the material before the Court, the Authority correctly identified the relevant law. The Authority’s reasons did not proceed on the basis, or suggest that the applicant could act to avoid harm in the future. Rather, the Authority found there is not a real chance that such harm would occur.

7. The Court does not accept that the Authority asked itself the wrong question or constructively failed to exercise its jurisdiction in making adverse findings in respect of the applicant’s claims. The adverse findings were open and cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, Mr Chia submitted that the Authority had either misconstrued the statutory provisions in determining the request made by the applicant’s representative under s 473DC(3) of the Act, or had acted legally unreasonably in its refusal of the representative’s request in the letter dated 20 January 2017. Mr Chia submitted that the Authority had acted legally unreasonably, if the Authority considers that it may make an adverse plausibility or credibility finding about any aspect of the case unless the Authority provides the applicant with an opportunity to respond in a hearing.

1. The Authority correctly identified that this was a request for the Authority to exercise its discretionary power under s 473DC of the Act. Section 473DC of the Act provides as follows: 

   (1)  Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

   (a)  were not before the Minister when the Minister made the decision under section 65; and

   (b)  the Authority considers may be relevant.

   (2)  The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

   (3)  Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)  in writing; or

   (b)  at an interview, whether conducted in person, by telephone or in any other way.

2. The Authority also referred to s 473DB of the Act which relevantly provides:

   (1)  Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

   (a)  without accepting or requesting new information; and

   (b)  without interviewing the referred applicant.

   (2)  Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

   Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

3. Section 473DD of the Act relevantly provides as follows: 

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

4. Mr Chia’s first submission was that the Authority had misconstrued the statutory provision because the Authority’s reasons should be read as taking into account the consideration under s 473DD of the Act, and that the Authority had failed to take into account both limbs of s 473DD of the Act in determining the request under s 473DC of the Act. I do not read the Authority’s reasons in relation to a refusal to exercise the discretion under s 473DC of the Act as being one in which there was any misconstruction of s 473DD of the Act. The Authority’s reasons are not to be read with a keen eye for error.

5. The Authority’s reasons identified the statutory regime relevantly, by reference to the provisions in s 473DB of the Act which identifies that subject to Part 7AA, the Authority is to consider and review material without interviewing the referred applicant. In that regard, s 473DD of the Act in the statutory regimes identifies the Authority must not consider new information unless there are exceptional circumstances and there are two limbs identified.

6. I do not read the Authority’s reasons as erroneously understanding the discretionary power under s 473DC of the Act to get new information as being confined by s 473DD of the Act. Nor, do I read the Authority’s reasons as meaning that the Authority was unaware and did not take into account both limbs of s 473DD of the Act in referring to the nature of the statutory scheme. There was no need in the present case for the Authority to expressly identify both limbs of s 473DD of the Act because the Authority was not at the stage of considering any new information. Rather, the Authority was deliberating upon a request to get new information. No misconstruction as alleged by Mr Chia in the exercise of the discretion under s 473DC of the Act arose.

7. Further, Mr Chia submitted that the refusal to exercise the discretion in the circumstances of the request as well as including where subsequent related material from the applicant’s wife was received as new information, meant that the exercise of the discretion was legally unreasonable.  The Authority identified rational and logical reasons for the adverse findings in relation to the new information from the applicant’s wife. The Authority clearly took into account the request made in the submissions dated 20 January 2017 and gave real and meaningful consideration to the submissions.

8. The Authority referred to the circumstances of the present case and was not satisfied that this was a case where the applicant should be invited to give oral or written information beyond the opportunity that the applicant had already had in relation to the DFAT country report. The Authority’s reasons cannot be said to lack an evident and intelligible justification. The Authority’s reasons evaluative judgment under s 473DC of the Act was not legally unreasonable and was eminently justified by the reasons it gave. No jurisdictional error as alleged in ground 2 is made out.            

9. Accordingly, the further amended application is dismissed.   

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 April 2018