DPT17 v Minister for Immigration
[2018] FCCA 3695
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DPT17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3695 |
| Catchwords: MIGRATION – Safe haven enterprise (subclass 790) visa – Immigration Assessment Authority – authority did not accept certain claims by applicant that had been accepted by the minister’s delegate – procedural fairness – legal unreasonableness – context critical – CRW16 considered – authority’s reliance on applicant’s entry interview – audio and transcript of interview were before the minister’s delegate – authority considered all claims made by the applicant – application dismissed. |
| Legislation: Migration Act 1958, pt.7AA, ss 473CB, 473DA, 473DC, 473DD, 473DE, 473FB |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 CGL17 v Minister for Immigration and Border Protection [2018] FCA 1747 CRW16 v Minister for Immigration and Border Protection [2018] FCA 710 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 Htun v Minister for Immigration and Border Protection (2001) 233 FCR 136 Minister for Immigration and Border Protection v CRY16 (2018) 253 FCR 475 |
| Applicant: | DPT17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 429 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 19 September and 25 October 2018 |
| Date of Last Submission: | 25 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Guo |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Mr J Maloney |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed 10 August 2017 as amended on 6 September 2018 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 429 of 2017
| DPT17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case concerned a decision by the Immigration Assessment Authority (“IAA”) made on 21 July 2017 pursuant to which the IAA affirmed a decision of the minister’s delegate not to grant the applicant a safe haven enterprise (subclass 790) visa. Relying on three grounds of his amended application for judicial review, the applicant contended that –
a)the IAA’s failure to consider whether to exercise its discretion to seek further information under s 473DC of the Migration Act (“Act”) was legally unreasonable;
b)the IAA examined the applicant’s entry interview without considering whether exceptional circumstances existed justifying its consideration and without the IAA first complying with s 473DE of the Act; and
c)the IAA failed to consider the applicant’s claim that he would be exposed to a real chance or real risk of torture during any period of detention upon return to Sri Lanka.
The minister argued that none of the grounds urged by the applicant were made out with the consequence that this application for judicial review should be dismissed.
Synopsis
For the reasons that follow, in my judgment none of the grounds of review was made out. I dismiss this proceeding and order the applicant to pay the minister’s costs.
Relevant factual history
The applicant is a Hindu man of Tamil ethnicity.[1] He is a citizen of Sri Lanka and was born in Jaffna on 4 January 1992.[2] He arrived in Australia on 26 October 2012 and applied for a safe haven enterprise visa on 6 April 2016.[3]
[1] Court book (filed on 10 October 2017) 41
[2] Ibid 39
[3] Ibid 89
The applicant’s application was accompanied by a statement setting out the basis of his claims.[4] In particular, he made the follow claims –
[4] Ibid 63
a)he was living in Vavuniya district during the Sri Lankan civil war;
b)his uncle, who at times lived with the applicant, stored weapons, ammunition and explosives for the Liberation Tigers of Tamil Eelam (“LTTE”);
c)in early 2008 the applicant’s uncle was arrested by the Criminal Investigation Department (“CID”) then two or three days later the CID informed the applicant’s mother that the applicant was wanted for questioning at the local army camp;
d)the applicant reported to the camp and was questioned about his involvement with the materials stored by his uncle after which he was sent home unharmed on the condition that he may be required to report further;
e)the applicant was afraid and went to Jaffna where he worked at a shop;
f)the applicant’s parents advised him that the authorities had made further inquiries about him;
g)the applicant returned to Vavuniya in 2012 although he did not live at his home in order to avoid the army;
h)the army made further inquiries in relation to the applicant prompting him to leave Sri Lanka that year;
i)in 2014 the applicant’s mother received a further request in writing from the army summoning the applicant for questioning;[5] and
j)the applicant’s uncle was held for four years, tortured and left with permanent injuries and in addition the applicant’s brother was conscripted for training by the LTTE in 2007, and in 2008 and 2009 the applicant himself was forced to chop wood for the LTTE.[6]
[5] Ibid 65 [20]
[6] Ibid 66 [21]-[23]
Relying on the above, the applicant claimed to face a real chance or risk of serious or significant harm from the Sri Lankan authorities. He claimed more broadly that his Tamil ethnicity would lead to the imputation of an association with the LTTE[7] and that he faced a real chance or risk of harm upon his return to Sri Lanka as an illegal emigrant.[8]
[7] Ibid [27]
[8] Ibid [26]
On 25 August 2016 the applicant was invited to attend an interview on 19 September 2016.[9]
[9] Ibid 80
On 25 November 2016 the delegate refused his application.[10]
[10] Ibid 87, 89
Under the heading findings of fact, the delegate reasoned that during the course of the interview inconsistencies emerged in respect of exact dates and the exact sequence of events. The delegate said that the applicant’s claims were subject to exaggeration in respect of the applicant’s recounting of certain incidents. Nonetheless, the delegate accepted the applicant’s claims in relation to specific incidents and events that had allegedly occurred to the applicant as well as other members of his family up until his departure from Sri Lanka in September 2012.[11]
[11] Ibid 91
The delegate subsequently considered, on the basis of these incidents or the applicant’s profile, whether he faced a real chance or risk of serious or significant harm. In part on the basis of country information indicating diminished hostilities and improved conditions for Tamils in Sri Lanka, the delegate concluded that the applicant did not face a real chance of harm as a result of being a Tamil from a former LTTE‑controlled area.[12] Further, the delegate found that the applicant was of no real interest to the Sri Lankan authorities when he left the country and of no real significance to the Sri Lankan authorities.[13] The delegate further found that the applicant would not face a real chance of serious harm on his return as a consequence of being a failed asylum seeker who departed Sri Lanka illegally.[14] The delegate likewise found that the applicant did not face a real risk of significant harm on any basis.[15]
[12] Ibid 94-5
[13] Ibid 95
[14] Ibid 97
[15] Ibid 98-99
The IAA decision
On 30 November 2016 the matter was referred to the IAA.[16] On 29 April 2017 the applicant’s representatives provided a submission to the IAA. Relevantly to this application, the applicant’s representatives –
a)submitted in substance on grounds of procedural fairness that the applicant should be invited to comment if the IAA was considering not accepting the applicant’s account of past events;[17] and
b)submitted that the applicant faced a real risk of significant harm on being detained, even if briefly, on his return to Sri Lanka.[18]
[16] Ibid 106
[17] Ibid 117 [4]
[18] Ibid 118 [6]-[7]
On 21 July 2017 the IAA affirmed the delegate’s decision. The IAA took into account the material referred to it under s 473CB of the Act and to the applicant’s submissions of 29 April 2017. With respect to the latter, the IAA did not accept that the terms of pt 7AA of the Act required it to invite comment or response from the applicant if it did not accept any aspects of the applicant’s account.[19]
[19] Ibid 127 [3]
The IAA’s conclusions are best summarised as follows –
a)the IAA observed that the applicant did not refer in his entry interview to his or his brother’s forced recruitment by the LTTE and in the interview with the delegate only referred to his brother’s forced recruitment and then only at the end of the interview when prompted by the delegate which led the IAA not to accept that aspect of the applicant’s account;
b)the IAA observed that at interview and in the written statement accompanying his application the applicant said that his uncle was arrested in 2008 and shortly thereafter his mother was told to send him to the army camp for questioning thereby causing the applicant to flee to Jaffna for three years before returning to Vavuniya and ultimately fleeing Sri Lanka;
c)the IAA further noted that this was inconsistent with the applicant’s entry interview, in which he stated that the authorities visited and questioned him several times at his home before requiring him to report to the camp, that he then left for Jaffna and that these events took place in 2006, and further the address history given by the applicant at this interview indicated that he lived in Jaffna from 2006, returned to Vavuniya in 2007 and remained there until 2012;
d)the IAA noted that applicant also gave an employment history which included employment in Vavuniya during the period he later claimed he was in Jaffna and included jobs other than working at a shop which he later claimed was his job in Jaffna;[20]
e)the IAA accepted that arrival and entry interviews are not conducted for the purposes of assessing an applicant’s claims for protection and that in that process applicants do not have the benefit of representation but the IAA said it did not consider this adequately explained the different timeline of events the applicant gave between his entry interview and his safe haven enterprise visa application and oral evidence;
f)the IAA said that while the applicant stated in his safe haven enterprise visa application that he would provide to the delegate a detailed work and address history he did not do so;[21]
g)the IAA accepted that the applicant’s uncle was arrested for storing materials for the LTTE and that the applicant was present when his uncle was arrested, then questioned and lived in Jaffna, but the IAA concluded that those events took place in 2006 after which the applicant returned to Vavuniya where he lived without further incident until his departure in 2012;[22]
h)the IAA said that on the applicant’s version of events (which included his being summoned by letter in 2014) no further action was taken and there had been no consequences for his family or friends in the form of questioning or investigation[23] and so the IAA did not accept that the applicant faced a real chance of harm from the Sri Lankan authorities;
i)having regard to country information indicating diminished hostilities and improvements for Tamils in Sri Lanka, the IAA concluded more broadly that the applicant did not face serious harm on the basis of his age, gender, ethnicity, family connections, friendships, or the fact that he is from an area that was formerly under the control of the LTTE;[24]
j)as to the applicant’s claims on the basis of his profile as a failed asylum seeker and illegal emigrant, the IAA accepted that the applicant would likely be found to have breached the Sri Lankan Immigrants and Emigrants Act and may therefore be charged, arrested, briefly detained, convicted and fined but that those consequences would not amount to serious harm and would in any event follow from the general application of law;[25]
k)the IAA said the applicant’s representative submitted that the applicant feared torture or other harm in prison but found that the likelihood of such mistreatment for an individual in the applicant’s circumstances was remote;[26] and
l)the IAA concluded that the applicant did not face a real risk of significant harm on the claimed bases.[27]
[20] Ibid 129 [11]
[21] Ibid 129-130 [12]
[22] Ibid 130-1 [13]-[16]
[23] Ibid 131 [16]
[24] Ibid 132 [21]
[25] Ibid 133-4 [23]-[32]
[26] Ibid 134 [29]
[27] Ibid 135-6
In this court
This application for judicial review was filed on 10 August 2017. On 23 August 2017 a registrar of this court heard first directions and among other things ordered this case to be heard finally almost four years later in February 2021. That was entirely unsatisfactory. While sitting in Perth in February 2018, I called over this case. At the time the applicant relied on a handwritten application the grounds of which were bereft of detail and did not disclose the factual and legal basis of the applicant’s contention that the IAA had somehow erred. In consequence, I vacated the hearing date of 25 February 2021 and ordered in lieu that the proceeding go forward under the show cause procedure on a date to be fixed. A hearing by video link to Perth was convened on 20 March 2018 for the show cause hearing, the applicant being in Perth and me sitting in Melbourne. Shortly prior to 20 March 2018 the applicant filed the amended grounds on which he relied. On 19 March 2018 on my instructions my associate communicated with the minister’s representatives enquiring whether in view of the more comprehensive ground set out in the amended application the case was appropriately dealt with under the show cause procedure. At approximately 6:30pm on 19 March 2018, the minister’s solicitors sent an email to my associate conceding that an arguable case was disclosed by the amended grounds, that the show cause hearing should be vacated and the application for judicial review should be fixed for hearing on a date to be fixed. On 20 March 2018 the parties agreed to the hearing being fixed on 21 September 2018.
On 21 September 2018 the parties appeared before me during which debate it became apparent that the minister wished to rely on affidavit material deposing to the information that was before the delegate. On condition that the minister paid the applicant’s costs of the date, I refixed the hearing of the judicial review application for 25 October 2018 and I made orders for the minister to file such further evidence as he wished by 3 October 2018.
The matter proceeded before me on 25 October 2018.
It is useful to now address the ground urged by Mr Guo of counsel for the applicant and the resistance advanced by Mr J P W Maloney of counsel for the minister.
Ground one
Mr Guo’s written submissions focused on legal propositions without ascribing his submissions to the three grounds advanced. That was not particularly helpful. Conversely, the minister’s submissions were arranged so that each ground was separately addressed. It is necessary to state some of the main propositions that emerge from Mr Guo’s submissions. They included contentions that –
a)the IAA acted legally unreasonably in rejecting the applicant’s chronological version of events in circumstances where the minister’s delegate accepted the applicant’s version;
b)the IAA’s failure to consider whether to exercise its discretion under s 473DC of the Act to invite the applicant to comment was legally unreasonable, citing Minister for Immigration and Border Protection v CRY16[28] and Minister for Immigration and Border Protection v DZU16;[29]
c)when considering legal unreasonableness, all the circumstances of the case must be taken into account, citing Minister for Immigration and Border Protection v Stretton;[30]
d)the IAA is entitled to make factual findings that differed to the factual findings made by the delegate, citing CRY16;
e)by reason of the page limitation prescribed by the IAA’s practice direction (having statutory force by reason of s 473FB) it was impractical for the applicant to make submissions in support of any particular matter decided in favour of the applicant by the delegate;
f)the applicant’s submission, provided in accordance with the requirements of the IAA practice direction, did not traverse why the delegate’s findings should be accepted but rather the submission expressly sought an opportunity to comment under s 473DD of the Act if the IAA contemplated making different factual findings to those made by the delegate; and
g)as the delegate accepted the applicant’s chronological sequence of events and as the practice direction precluded written submissions about why the delegate’s findings should not be disturbed, it was unreasonable for the IAA to reverse the delegate’s findings without first considering whether to invite the applicant to comment under s 473DC.
[28] (2018) 253 FCR 475
[29] (2018) 253 FCR 526
[30] (2016) 237 FCR 1
In answer to some of those contentions, counsel for the minister drew attention to the inference he said that arose from paragraph three of the IAA’s reasons. That paragraph reads as follows (with citations omitted) –
The submissions of the Applicant correctly note that the exercise of this discretion must not be legally unreasonable. The Applicant asserts that the Authority failed to consider the exercise of this discretion; and that this failure was legally unreasonable in circumstances where the terms of the relevant practice direction invite the Applicant only to provide a five page submission addressing why the Applicant disagreed with the Delegate’s decision, or any claim or matter that was overlooked.
It must not be forgotten that the IAA’s function is to conduct a de novo consideration of the merits of the decision referred to it. The High Court held as much in Plaintiff M174/2016 v Minister for Immigration and Border Protection.[31] No presumption exists that the IAA will invite the applicant to be heard. In the absence of exceptional circumstances, the IAA carries out its function based on the referred material. The Full Court addressed that matter in DGZ16 v Minister for Immigration and Border Protection.[32] More recently the Full Court in DYK16 v Minister for Immigration and Border Protection[33] followed DGZ16 and it also followed CGL17 v Minister for Immigration and Border Protection.[34] It was open to the IAA to disagree with the delegate’s examination of the material without providing the applicant with an opportunity to respond.
[31] (2018) 92 ALJR 481
[32] [2018] FCAFC 12
[33] [2018] FCAFC 222
[34] [2018] FCA 1747
The minister argued that dangers exist in attempting to characterise matters that are in truth procedural fairness arguments as arguments founded on legal unreasonableness. The minister called in aid of that proposition the decision of Flick J in CRW16 v Minister for Immigration and Border Protection.[35] There, his Honour held as follows –
Both the content of the rules of procedural fairness and the principle of “unreasonableness” must necessarily be constrained by the statutory context. Although unnecessary to resolve the argument, it is difficult to see how “unreasonableness” could so operate as to confer a procedural entitlement upon a claimant which is otherwise excluded, expressly or impliedly, by the terms of Pt 7AA. Not only would such a conclusion potentially run contrary to the scheme set forth in Pt 7AA; it would also potentially prejudice the intended legislative intent behind s 473DA(1). Such a construction would only henceforth invite grounds of review being reformulated to characterise an alleged procedural deficiency as being “unreasonable” rather than a denial of “natural justice”. On such an approach, a draftsman could avoid the constraints imposed by s 473DA by re-characterising a ground of review as “unreasonableness” rather than a requirement of “natural justice”.
[35] [2018] FCA 710
With the greatest respect, I agree.
It seemed to me that in this case the IAA did as pt 7AA commanded it to do. The IAA in this case reviewed for itself the materials before the delegate and in affirming the delegate’s decision made distinct findings as to the applicant’s credit and account of past events. In so doing, it was not obliged to consider exercising nor to actually exercise its discretion pursuant to s 473DC. As in DGZ16, this is not a case where the IAA has decided a point not decided by the delegate. Nor is it a case where, as for example in CRY16, the IAA knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation, and further the question of relocation, either at all or to another part of the country in question in that case, was not explored or the subject of findings by the delegate, such that the IAA’s failure to exercise its power meant that it disabled itself from the question it needed to ask about relocation.[36]
[36] Minister for Immigration and Border Protection v CRY16 (2018) 253 FCR 475 [82]; cf Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526
It is true that any consideration of legal unreasonableness is not set in a vacuum. Context is always critical. Here, the IAA did not undertake the review in a manner that was contrary to pt 7AA. As the minister pointed out, the fact that the applicant may not have anticipated that the IAA would reach a conclusion on certain things that differed to the delegate’s conclusion on the same things was beside the point.
I detected no error under ground one
Ground two
Under this ground the applicant argued that the IAA relied on the applicant’s entry interview for its rejection of the applicant’s evidence about events in Sri Lanka relevant to him. The applicant asserted that there were no references in the delegate’s reasons to the entry interview and therefore, so the applicant said, the entry interview must have been “new information” for the purposes of pt 7AA of the Act. The applicant said that any such new information had not been the subject of examination under the criteria prescribed by s 473DD or s 473DE of the Act.
The minister resisted those contentions. The minister argued –
a)the delegate referred in general terms to having the departmental file before him including the safe haven enterprise visa application file;
b)the fact that the delegate’s reasons did not specifically mention the entry interview was “unremarkable” (his word) as the path of reasoning did not require such a reference; and
c)it was not necessary for the delegate to refer to each document that was before the delegate, citing ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[37]
[37] (2003) 236 FCR 593
The minister’s written submissions were dated 12 September 2018. On 18 September 2018 a solicitor retained by the minister affirmed an affidavit in which she deposed to her examination of the departmental file in relation to this visa application. She stated that the entry interview – both transcript and audio file – were before the delegate. That seemed to answer this ground in an irrefutable way.
Ground two failed. The entry interview was in fact before the delegate. That interview was therefore not “new information” when it went to the IAA.
Ground three
Under this ground the applicant asserted that the IAA failed to consider a claim. The applicant said that the failure to consider a claim amounts to jurisdictional error, citing Htun v Minister for Immigration and Border Protection.[38] To that rather generic examination, may I add certain comments of my own in BCF15 v Minister for Immigration and Border Protection[39] about the claim a tribunal or the IAA must consider. It became necessary to ascertain precisely the claim the applicant made. It was expressed in paragraph 37 of the applicant’s submissions in the following terms –
Thus, the relevant claim is not in relation to the mere fact of detention upon return amounting to significant harm, but that upon return he would be detained, even if only for a brief period, and that during such detention he would be exposed to a risk of torture.
[38] (2001) 233 FCR 136
[39] (2016) 314 FLR 291
The applicant supported his contentions under this ground by reference to the IAA’s reasoning. It was as follows (with citations omitted) –
38. The IAA agreed that the Applicant would be arrested and detained under some form of remand upon return to Sri Lanka. However, despite having made that finding, it did not go on to consider the Applicant’s claims for fear of torture if he were so detained. The IAA’s reasoning, under the heading ‘Illegal departure/returning asylum seeker’, instead focussed on other issues:
a. At [24]-[25] the IAA said that only people with particular ‘profiles’ would be of interest to Sri Lankan authorities, and that the Applicant did not have any such ‘profile’. As has been set out above, however, the relevant claim was not premised on the Applicant having any particular ‘profile’.
b. At [27]-[29] the IAA accepted that returnees who departed Sri Lanka illegally would be detained upon return and charged, but that they would be invariably granted bail, and receive no more punishment than a fine. In reasoning this way, the IAA showed no appreciation of the claim raising the fear that torture might occur during that initial period of detention, even if only brief. Instead, the IAA’s reasoning was all focussed on what might happen after the initial period of detention.
c. At [30] the IAA considered the fact that prison conditions in Sri Lanka were poor, and concluded that exposure to such conditions would not amount to serious harm. However this was just one of the ways in which the Applicant said he would be exposed to serious harm, and does not respond to the claim that the Applicant feared the prospect of being actively tortured, rather than just being exposed to poor prison conditions.
A relevant observation referable to this ground emerged from paragraph 29 of the IAA’s reasons. There, the IAA stated as follows –
… His representative has submitted that he fears torture or other harm in prison. DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce including for those suspected of offences under the [Immigrants and Emigrants] Act. Given this and the likelihood that he will spend no more than a few days in detention before he can be brought before a Magistrate and bailed, I find the prospect that he will be harmed in prison to be remote. …
The minister contended that the IAA’s reasons squarely and comprehensively addressed the consequences that would likely follow from the applicant’s return to Sri Lanka especially the likelihood of his being harmed if detained. The IAA found that it was not satisfied that the applicant would be subjected to anything beyond orthodox treatment not amounting to serious or significant harm if returned to Sri Lanka.
I agree with the minister’s contention that ground three was not made out.
Conclusion
The grounds of review advanced by the applicant fail. This application for judicial review must therefore be dismissed. The applicant must pay the minister’s costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 14 December 2018
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