DPT17 v Minister For Immigration and Anor (No.2)
[2020] FCCA 1593
•16 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DPT17 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 1593 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant disbelieved in part and other fears found to not be well founded – whether the Authority gave proper consideration to the applicant’s claims – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 473CB, 473DD, 473DE |
| Cases cited: DPT17 v Minister for Immigration [2018] FCCA 3695 DPT17 v Minister for Home Affairs [2019] FCA 872 Minister for Immigration v SZJSS [2010] HCA 48 MZZJO v Minster for Immigration [2014] FCAFC 80 |
| Applicant: | DPT17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 355 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr Cummings of Sparke Helmore |
ORDERS
The application filed on 9 September 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 355 of 2019
| DPT17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant seeks judicial review of the decision of the Immigration Assessment Authority (Authority). The decision was made on 26 August 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions.
Background
The applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 26 October 2012.[1] On 20 January 2013, the applicant participated in an entry interview (entry interview).[2] On 10 December 2015, the Minister’s Department advised the applicant that the bar had been lifted under s.46A of the Migration Act 1958 (Cth) (Migration Act) and invited him to apply for the visa.[3] On 6 April 2016, the applicant applied for the visa.[4] On 19 September 2016, the applicant attended an interview with the delegate.[5] At that hearing, the applicant gave the delegate further evidence in support of his application, including what purported to be a translation of a summons directed to the applicant.[6] On 25 November 2016, the delegate refused to grant the visa to the applicant.[7]
[1] Court Book (CB) 89
[2] CB 1-16
[3] CB 17-22
[4] CB 25-69
[5] CB 91
[6] CB 84-86
[7] CB 89-104
On 30 November 2016, the matter was referred to the Authority for review under Part 7AA of the Migration Act.[8] On 29 April 2017, the applicant’s representative provided submissions to the Authority (the 2017 submission).[9] On 21 July 2017, the Authority affirmed the delegate’s decision.[10]
[8] CB 106-107
[9] CB 115-120
[10] CB 126-140
On 10 August 2017, the applicant applied for judicial review of the delegate’s decision. On 14 December 2018, Judge Wilson dismissed the applicant’s application.[11] On 11 June 2019, Banks-Smith J allowed the applicant’s appeal.[12] The error in the Authority’s decision that led to it being set aside by Banks-Smith J was that it had considered an entry interview, which was new information as it was not before the delegate, without considering the requirements of s.473DD and s.473DE of the Migration Act.
[11] DPT17 v Minister for Immigration & Anor [2018] FCCA 3695
[12] DPT17 v Minister for Home Affairs [2019] FCA 872; CB 139
Following remittal, on 24 July 2019, the Authority invited the applicant to comment on information that may be the reason or part of the reason for affirming the delegate’s decision.[13] The information concerned inconsistencies between the evidence he provided at the entry interview and claims he had made in his visa application.[14] On 9 August 2019, the applicant provided a submission which responded to the invitation and also contained other arguments and new information (the 2019 submission).[15] The 2019 submission was 16 pages in length (including two pages of annexures). On 15 August 2019, the applicant provided a letter of support[16] and a considerable volume of country information.[17] On 26 August 2019, the Authority, differently constituted, affirmed the delegate’s decision.[18]
[13] CB 144-146
[14] CB 145
[15] CB 150-167
[16] CB 170
[17] CB 171-564
[18] CB 568-586
Applicant’s claims
The applicant’s claims were set out in a statement accompanying the visa application.[19] In summary:
a)he is a Tamil and a Hindu. He was born in Jaffna in the Northern Province but lived most of his life in another city in the Northern Province (home city);
b)in 2007, his brother was conscripted by the Liberation Tigers of Tamil Eelam (LTTE) for six months. His mother made complaints to the United Nations High Commissioner for Refugees (UNHCR) who assisted with the release of his brother from the LTTE;
c)in 2008/2009 the applicant was forced to chop logs for the LTTE;
d)his uncle was forced to store material and explosives for the LTTE. In 2008, the applicant was present when the Criminal Investigations Department (CID) arrested his uncle. The uncle was detained for four years and tortured. Two to three days after his uncle’s arrest the applicant was told that he was required to report to the Sri Lankan Army (SLA) camp. He denied assisting his uncle and was sent home with a warning that he may be summonsed in the future;
e)he then fled to Jaffna by boat. His parents advised him that the SLA had since made enquiries about him in his home area;
f)in 2012, he returned to his home city. He lived in a place that was a short distance from his home. The SLA enquired about him again and as a result he hid and his mother made arrangements for him to leave the country illegally;
g)in 2014, after his departure, his mother received a summons which directed him to report to the SLA; and
h)he feared harm on the bases of his actual or imputed LTTE connections and his status as a failed asylum seeker.
[19] CB 61-65
The 2019 submission contained a new claim, namely, that the applicant feared harm because of his political views and activities. In support of that claim he asserted that he held pro-Tamil separatist views and had participated in events associated with the Tamil separatism movement.
Authority’s decision
Material considered
The Authority had regard to:
a)the material provided by the Secretary under s.473CB;[20]
b)the 2017 submissions (which did not contain new information);[21]
c)the entry interview, which the Authority obtained of its own volition on the basis that the Authority was satisfied that there were exceptional circumstances to justify considering that information;[22]
d)the first 13 paragraphs of the 2019 submission, which were responsive to the Authority’s invitation to comment dated 24 July 2019;[23] and
e)the 2018 DFAT Report on Sri Lanka, which the Authority obtained of its own volition on the basis that there were exceptional circumstances to justify considering that information.[24]
[20] CB 569, [4]
[21] CB 569, [5]
[22] CB 569, [6]
[23] CB 569, [7]
[24] CB 572-573, [17]-[18]
The Authority did not have regard to:
a)the remaining paragraphs of the 2019 submission at [14]-[45]:[25]
i)the Authority did not consider the remaining submissions on the basis that the 2019 submission did not comply with the Authority’s Practice Direction five-page limit on submissions; and
ii)the Authority did not consider the new information (including the annexed photographs and the letter of support) on the basis that it was not satisfied that there were exceptional circumstances to justify consideration of that information;
b)the country information provided by the applicant post-remittal, on the basis that there were no exceptional circumstances to justify considering the new information.[26]
[25] CB 569- 572, [8]-[9], [11]-[15]
[26] CB 570, [10]
Applicant’s request to be interviewed
The Authority declined the applicant’s request to be interviewed on the basis that it was not satisfied that an interview was required in light of the Authority’s limited form of review and in circumstances where it had already invited the applicant to comment on information.[27]
[27] CB 572, [16]
Factual findings and refugee assessment
The Authority accepted the applicant’s identity and receiving country as claimed and found that he would return to his home city.[28] It also accepted his narrative about his uncle and brother and accepted that he was forced to chop logs for the LTTE.[29]
[28] CB 574, [22]
[29] CB 575, [26]
The Authority found that there were inconsistencies between the personal history he gave at the entry interview and the claims he subsequently advanced in his visa application.[30] The Authority did not accept the applicant’s explanation that the discrepancies were because of the applicant’s lack of a western education, or the submission that the information in the visa application should be preferred because the applicant had more time to review and organise that information.[31] The Authority instead concluded that the information provided at the entry interview had credibility because it was provided soon after his arrival and therefore proximate in time to when he was working and living in Sri Lanka.[32] The Authority did not accept the applicant’s other explanations that the discrepancies in his evidence were a result of him being told to give only brief descriptions of his claims or because of deficiencies in interpreting.[33]
[30] CB 575, [27]
[31] CB 575-576, [28]
[32] CB 575-576, [28]
[33] CB 576, [29]
The Authority had regard to the Full Federal Court’s guidance in MZZJO v Minster for Immigration[34] with respect to the appropriate caution that should be exercised when relying on information given at entry interviews.[35] It noted that the entry interview took place three months after the applicant’s arrival in Australia and that he did not advance any reason why he might have told the interviewer false information, nor was any reason apparent to the Authority.[36]
[34] [2014] FCAFC 80
[35] CB 576, [30]
[36] CB 576, [30]
Based on the applicant’s inconsistent evidence, the Authority did not accept that he was in Jaffna from 2008 to 2012, but it did accept that he fled to Jaffna for around a year after his uncle was arrested.[37] Whilst the Authority accepted that his uncle’s arrest would have been frightening for him, it did not accept that he was in hiding or that his parents told him that the SLA was looking for him.[38] The Authority found it implausible that he would be of ongoing interest to the SLA when no other members of the household were.[39] The Authority further found that the applicant was not of any interest to the SLA, CID, or any other Sri Lankan authority, and that it was farfetched to suggest that he would now be imputed with a pro-LTTE profile given he was only questioned once and where 10 years had passed since the civil war ended.[40] It concluded that the applicant did not face a real chance of harm because of his uncle’s arrest, his one-off questioning by the SLA, his brother’s LTTE involvement, his own LTTE involvement, or any combination of those reasons.[41]
[37] CB 576-577, [31]-[33]
[38] CB 577, [34]
[39] CB 577, [34]
[40] CB 577-578, [35]
[41] CB 578, [35]
The Authority found that the police letter provided by the applicant[42] was not genuine and was not evidence that the police had any interest in him.[43]
[42] CB 84
[43] CB 578, [36]
Based on country information, the Authority found that there was not a real chance that he would be subject to surveillance or discrimination.[44] It therefore found that he did not face a real chance of harm as a result of his Tamil ethnicity.[45]
[44] CB 578, [37]
[45] CB 578-579, [37]
The Authority accepted that the applicant would be returning to Sri Lanka as a failed asylum seeker who departed illegally and could face returnee processing, monitoring, social stigma, detention, charges and fines.[46] However, it was not satisfied that any such treatment amounted to serious harm.[47] It also did not accept that there was a real chance that he would face torture during any processing or detention at the airport.[48] The Authority found that he did not face a real chance of harm as an ordinary Tamil returning to Sri Lanka as a failed asylum seeker.[49]
[46] CB 579-580, [38]-[41]
[47] CB 580, [42]
[48] CB 580, [43]
[49] CB 580-581, [44]
The Authority considered the applicant’s claims individually and cumulatively and concluded that his fear of persecution was not well-founded such that he did not meet s.36(2)(a) of the Migration Act.[50]
[50] CB 581, [45]-[46]
Complementary protection assessment
The Authority relied on its anterior factual findings in support of its conclusion that there was not a real risk that the applicant would face significant harm such that he did not meet s.36(2)(aa) of the Migration Act.[51]
[51] CB 581-582, [47]-[51]
The current proceedings
These proceedings began with a show cause application filed on 9 September 2019. The applicant continues to rely upon that application. There are two grounds in it:
(1) Still I got problems in my country I can’t go back to my country please.
(2) The IAA didn’t take into account the ongoing violence and didn’t properly consider the risk of my persecution
The application is supported by a short affidavit filed with it. I also have before me as evidence the court book filed on 8 October 2019. Only the Minister filed prehearing written submissions in accordance with procedural orders made by a registrar.
I invited oral submissions from the applicant. The applicant told me that he understood there was an issue in relation to his protection application concerning his whereabouts in the northern province of Sri Lanka at various times. He told me that the civil war, in particular, around 2008, led to him having to move at various times to various places.
It is true that the applicant’s statements about his whereabouts at particular times gave rise to a credibility concern for the Authority. That led to the Authority, in its first review, committing jurisdictional error as found by the Federal Court in DPT17.[52] That error was rectified upon rehearing by the Authority. The applicant was invited to comment on the credibility concern and the apparent discrepancy between his arrival interview and later claims.
[52] [2019] FCA 872; CB 139
The applicant was invited to comment and took up the opportunity. The Authority dealt with the issues in its reasons from [27]-[34]. I see no error in the Authority’s approach. Neither do I see any error arising from the grounds in the show cause application.
The Minister’s submissions deal with those grounds. I agree with those submissions.
Ground 1
This ground does not allege any error on behalf of the Authority. The ground is no more than an invitation for the Court to engage in merits review, which is not the function of a court determining an application for judicial review.
Ground 2
The ground is a bland allegation of error. The applicant has not identified what “ongoing violence” was not considered by the Authority, nor has he explained why he believes the Authority’s consideration of the risk of persecution he faces on return to Sri Lanka was not “proper”. Without proper particulars the ground is meaningless and cannot succeed. This ground should be dismissed on this basis alone.
As to the suggestion that the Authority did not take into account the “ongoing violence”, the decision record makes clear that the Authority set out and considered all of the applicant’s claims and evidence and assessed them against the correct criteria. In summary:
a)the Authority found that the applicant was not of interest to the Sri Lankan authorities on the basis of his actual or imputed LTTE links, and that he would not become of interest to those authorities upon his return.[53] That finding led to the Authority’s conclusion that the applicant does not face a real chance of harm upon return to Sri Lanka on the basis of those LTTE links;[54]
b)the Authority did not accept that the applicant faced a real chance of torture, significant mistreatment, or other serious harm as an ordinary Tamil illegal departee returning to Sri Lanka;[55] and
c)the Authority did not need to resolve the applicant’s new claim to fear harm on the basis of his Tamil separatist political opinions because it concluded that it was prevented from considering that new information by operation of s.473DD of the Migration Act.[56]
[53] CB 578, [35]
[54] CB 578, [35]
[55] CB 580, [43]
[56] CB 571-572, [12]-[15]
As to the suggestion that the Authority’s consideration of the applicant’s risk of persecution was not “proper”, the High Court noted in Minister for Immigration v SZJSS,[57] that the existence of a jurisdictional error premised on a failure to give “proper, genuine and realistic consideration” to evidence can, when that phrase is taken out of context, encourage a “slide” into an impermissible merits review. The lack of any meaningful particularity to Ground 2 suggests that this has occurred in this case. The fact that the applicant disagrees with the factual and legal conclusions the Authority reached after considering the evidence before it does not mean that the evidence was not given proper consideration by the Tribunal.
[57] [2010] HCA 48
The applicant told me that he received a letter dated 26 May 2020 from the court registry. I was not previously aware of that letter. Neither was the representative of the Minister. The letter apparently informs the applicant that his case is affected by a data breach in the Federal Court registry.
It appears that the applicant’s real name as well as, potentially, other facts relating to these court proceedings, were discoverable using the search facility in the Commonwealth Law Courts Portal.
The discovery of this issue post-dated the decision of the Authority and, hence, could not have been an issue in the case before the Authority. I told the applicant that he would be well advised to take advice on the issue and to consider whether to approach the Minister, either to request his intervention or to seek his permission to make a fresh protection visa application.
The applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,000. The applicant did not wish to be heard on costs.
I will therefore order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 June 2020
0
4
2