DQI16 v Minister for Immigration

[2017] FCCA 1823

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1823

Catchwords:
MIGRATION – Immigration Assessment Authority – protection visa – the role of the Authority in reviewing the delegate’s decision – whether the Authority was obliged to remit the decision where errors made in reviewable decision – whether the Authority had misconceived its role – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H. 5J, 36, 65, 420, 473CA, 473CB, 473CC, 473DA, 473DC, 473DD, 473DE, 473DF, 473FA, 473GA, 473GB, 476

Immigrants and Emigrants Act 1949 (Sri Lanka)

Cases cited:

BMB16 v Minister for Immigration and Border Protection [2017] FCCA 203

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Applicant: DQI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3361 of 2016

Judgment of: Judge Street

Hearing date: 3 August 2017

Date of Last Submission: 3 August 2017

Delivered at: Sydney

Delivered on: 3 August 2017

REPRESENTATION

Counsel for the Applicant: Mr R Carey

Solicitors for the Applicant: Wotton & Kearney Lawyers

Solicitors for the Respondents: Ms N Laing
Clayton Utz

ORDERS

1. The amended application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3361 of 2016

DQI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 11 November 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant entered Australia as an unauthorised maritime arrival on 28 August 2012. The applicant applied for protection on 30 August 2013, which was deemed invalid.

2. On 25 September 2015, the applicant lodged a valid application for a Safe Haven Enterprise visa. The applicant claimed to fear harm on being returned to Sri Lanka because he would be imputed to be a member or supporter of the LTTE because he is a young Tamil male from the Eastern Province, being an area formerly under LTTE control, because his brother served with the LTTE, because the applicant received LTTE training and because the applicant would be returning as a failed asylum seeker who departed unlawfully.

3. On 18 August 2016, the delegate refused to grant the applicant a protection visa and found the applicant failed to meet the criteria under the Act. The delegate made adverse credibility findings in relation to the applicant’s claims and fears.

The Authority’s Decision

Material before the Authority

1. On 19 August 2016, the Authority wrote to the applicant, identifying that the matter had been referred to the Authority for review. The letter identified that were limited circumstances in which the Authority could consider new information.

2. The letter provided a fact sheet and Practice Direction, giving the applicant an opportunity to put on submissions and to provide new information. No request was made to the Authority in submissions to remit the matter under s.473CC(2)(b) for a fresh consideration of the criteria under the Refugees Convention or complementary protection.

Consideration of claims

1. The Authority identified the applicant’s claims including the illiteracy of the applicant and his limited education. The Authority took these matters into account in relation to the credibility concerns about the numerous discrepancies of the applicant’s claims, which the delegate had identified as implausible. The Authority found that there were parts of the applicant’s claims that the Authority did not accept.

2. The Authority did make favourable findings in relation to some of the applicant’s claims, including that the Authority did not consider that the applicant’s failure to mention his brother’s involvement with the LTTE at the entry interview means the claim was made up.

3. The Authority did not, however, accept that his brother was detained or jailed for a long period. The Authority did not accept that in 2015 his brother continued to be detained in a camp after being questioned. The Authority was satisfied that the authorities were aware of the applicant’s brother’s past involvement with the LTTE. The Authority also accepted that the applicant may have undergone compulsory training with the LTTE. The Authority was satisfied that the applicant’s degree of involvement with the LTTE did not bring him within any of the categories of people who may be at risk in Sri Lanka on the basis of past involvement with the LTTE.

4. The Authority was satisfied that if the applicant returned to Sri Lanka in 2007, he is of no further interest to the Sri Lankan security authorities. The Authority was of the view that at that time, if the applicant had been of adverse interest because he was known to have escaped from a camp or because he was suspected of LTTE involvement, he would have been subject to some form of scrutiny during that journey.

5. The Authority found the applicant’s account of having escaped from the CID’s white-van abduction to be highly implausible. The Authority considered the inconsistency between the applicant’s claims that having escaped, he returned home after a few hours, or after one or two days spent in the jungle, to be significant and inexplicable on the basis he is telling the truth. The Authority did not accept that the applicant lived in hiding from the authorities from 2007 until his departure in 2012. The Authority did not accept the authorities have made inquiries about the applicant since he left Sri Lanka.

6. The Authority found the applicant left Sri Lanka unlawfully and that he will therefore be subject to investigation on return and that he may be charged with an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the I&E Act”).

Refugee assessment

Imputed LTTE profile

1. The Authority, taking into account the applicant’s profile, found that there is not a real chance that he would be harmed on return to Sri Lanka now or in the reasonably foreseeable future because of an imputed LTTE profile.

Failed asylum seeker

1. The Authority was not satisfied that the applicant has identity concerns or criminal or security records that will raise the concern of the authorities. The Authority found the applicant is of no relevant profile as a person with actual or suspected links to the LTTE, having regard to his brother’s known involvement. The Authority did not accept that there is a real chance that the applicant will be harmed during or as a consequence of the routine investigation on return as a failed asylum seeker who departed illegally. The Authority found the authorities will quickly establish that neither the applicant nor his family members are of ongoing concern because of past or present involvement with the LTTE.

2. The Authority found there is no real chance the applicant will be given a custodial sentence. The Authority was not satisfied that the imposition of a fine on the applicant as a first offender would constitute serious harm. The Authority found the applicant may be detained for up to 24 hours at the airport, then potentially being detained on remand for up to several days in overcrowded and unsanitary conditions and having to pay a fine, but would not amount to serious harm.

3. The Authority found the procedures under which the applicant, as a returnee, would be dealt with and any penalties to which he may be subjected will be applied on a non-discriminatory basis under law of general application and therefore do not constitute persecution for the purpose of s.5H(1) and s.5J(1) of the Act.

4. The Authority did not accept that the applicant will be imputed with a pro-LTTE or anti-government dissident beliefs by the authorities because of his brother’s involvement with the LTTE, his ethnicity, his former place of residence, his unlawful travel to India or to Australia, as a failed asylum seeker, or for any other reason. The Authority found the applicant does not face a real chance of persecution on returning to Sri Lanka.

5. The Authority found the applicant was not a refugee within the meaning of s.5H(1). The Authority found the applicant does not meet the criteria in s.36(2)(a) of the Act.

Complementary protection assessment

1. The Authority turned to the issue of complementary protection. The Authority identified the process to which the applicant may be subjected under the I&E Act and was not satisfied there was a real risk that the applicant faces a custodial sentence.

2. The Authority was not satisfied there was a real risk that the applicant would face torture or cruel or inhumane treatment, or punishment, or degrading treatment or punishment, including as a result of conditions he may face during a short period in custody.

3. The Authority was not satisfied there are substantial grounds for believing as a necessary or foreseeable consequence of the applicant being removed from Australia to the receiving country that there is a real risk he will suffer significant harm. The Authority found the applicant failed to meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

Grounds of the application

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

   1. The Independent Assessment Authority (the Authority) constructively failed to review the decision of the delegate within the meaning of s 473CC of the Migration Act 1958

   Particulars

   The Authority conducted a review of the merits of the applicant's case rather than a limited review of the fast track reviewable decision.

   2. The Authority erred by not remitting the fast track reviewable decision for reconsideration with directions or recommendations.

   Particulars

   As the Authority found errors in adverse factual findings made by the fast track reviewable decision the Authority was jurisdictionally obliged by s473CC(2)(b) of the Migration Act to remit the decision.

2. Mr Carey, of counsel, who appeared on behalf of the applicant, adopted the submissions advanced in writing by Mr Godwin of counsel. Those submissions argued that the Authority erroneously conducted a full merits review and that the Authority had misconceived its role under s.473CC.

3. It was submitted that the Authority’s role was to conduct a limited review of the delegate’s decision and that if the Authority detected errors of fact or law in the delegate’s decision, the Authority is obliged by s.473CC(2)(b) to remit the matter to the delegate for further consideration.

4. The argument was developed by reference to ss.473CA, 473DB, 473EA, and 473FA. The submissions identified the potential breadth of meaning of the word “review” and the importance of the context as to the nature of the meaning as identified in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at 341-342. The submissions pointed out that the review is to take place whether or not the applicant seeks such a review and that it is envisaged that the review is one in which the applicant will not normally appear or that there will normally not be further evidence. The submissions developed the contrast of the provisions of Part 7AA with those found in Part 7.

5. Particular emphasis was placed by Mr Carey of counsel upon the provisions of s.420 in Part 7, which are as follows:

   Tribunal's way of operating

   The Tribunal, in reviewing a Part 7-reviewable decision:

   (a) is not bound by technicalities, legal forms or rules of evidence; and

   (b) must act according to substantial justice and the merits of the case.

6. There is no equivalent provision of s.420 in Part 7AA. The submission advanced on behalf of the applicant is that the provisions of Part 7AA indicate a review which allows a decision to be affirmed on the facts as found by the delegate. The submission advanced was that if the Authority does not agree with the reasoning and factual findings, then it must exercise the power under s.473CC to remit the matter to the delegate with guidance if appropriate, or direction if appropriate. The submission was advanced that s.473CC was a beneficial provision in respect of which there was an ambiguity as to the scope and meaning of the review which should accordingly be construed favourably to the applicant.

7. Counsel for the applicant also drew the Court’s attention to the decision by Judge Brown in BMB16 v Minister for Immigration and Border Protection [2017] FCCA 203, which has been appealed and is currently the subject of a proposed hearing on 27 August 2017. Whilst a submission was initially advanced that this matter should be adjourned because of that appeal, no such submission was pressed before this Court and no adjournment was sought. That was a proper course to take, as the existence of an appeal is not of itself a reason why this Court should not exercise its powers in determining an application listed for final hearing because there are other appeals on foot.

8. Mr Carey of counsel sought to argue that the provisions found in Part 7AA all supported a narrow approach to the nature of the review and that s.473CC, in the discretionary power, should be read as confined in scope of authority so as to require an exercise of a remission power without being exhaustive, at least if there was detected an error of fact or law in the delegate’s decision.

9. Section 473CC confers under subsection (1) a mandatory obligation upon the Authority to conduct a review of a fast track reviewable decision referred to the Authority under s.473CA. There is no discretion given to the Authority in that regard.

10. The provisions of Part 7AA and, in particular s.473FA, identify that in carrying out its functions under this Act, the objective of the Authority is to provide a mechanism of limited review that is efficient and quick. That provision also provides that in reviewing the decision, the Authority is not bound by technicalities, legal forms or rules of evidence. It is apparent from s.473EA that the Authority must make a written decision on the review and that that must include reasons for the decision as well as requiring a statement recording the day and time the decision is made.

11. It also important in construing s.473CC to take into account s.473DA which, together with ss.473GA and 473GB, identifies that Division 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority. It is also important in understanding the nature of the review that Subdivision B of Division 3 identifies that the Authority must review the fast track reviewable decision referred to it under s.473CA by considering the review material provided to the Authority under s.473CB, without accepting or requesting new information and without interviewing the referred applicant. Section 473DB(2) also provides that the Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

12. It is also important to take into account Subdivision C in Division 3, which permits the Authority to get any documents or information that were not before the Minister when the Minister made the decision under s.65 and which the Authority considers may be relevant. Section 473DC(2) identifies that the 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. Section 473DC(3) also identifies a power whereby the Authority may invite a person orally or in writing to give new information in writing or at an interview whether conducted in person, by telephone or in any other way.

13. The powers in s.473DC are, however, constrained by s.473DD which requires both exceptional circumstances to justify considering the new information and the referred applicant satisfying the Authority in relation to any new information given or proposed to be given to the Authority by the referred applicant the new information was not or could not have been provided to the Minister before the decision was made under s.65, or that the new information is credible information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

14. Section 473DE identifies an obligation on the Authority to give the applicant particulars of any new information and to explain to the applicant why the new information is relevant to the review and invite the applicant orally or in writing to give comments on the new information, in writing or at an interview. Section 473DF identifies where a referred applicant is invited under ss.473DC or 473DE to respond to new information there may be a period prescribed by regulation for the giving of that information or comment and that the Authority may determine the manner in which and the place and time at which any interview may be conducted and provides for a power to make a decision where an applicant does not give new information or comments in accordance with the invitation without taking further steps or without taking further action to enable the applicant to participate to take part in a further interview.

15. Part 7AA makes clear that the Authority is bound to conduct a review of the material referred to it in accordance with the provisions of that Part and must provide a reasoned decision in respect of the outcome of that review which is confined by s.473CC to two alternatives as identified in paragraphs (a) and (b) under subsection (2). That is what the Authority did in the present case.

Consideration

1. Embracing a label of “merits review” or referring to the requirements of s.420 does not assist in the construction of s.473CC. The exercise of the power under s.473CC is confined by legal unreasonableness. The power is not, however, on its face, otherwise confined in relation to the reasoning process and the makings of findings by the Authority, including findings that depart from those made by the delegate or determining that the delegate has misunderstood the relevant law.

2. The Authority, under Part 7AA, is conducting a review of a fast track reviewable decision in accordance with s.473CC(2) and there is no warrant for reading in a constraint in any fact-finding exercise conducted by the Authority in its review of the material referred to it. The powers of the Authority to receive new information are inconsistent with such a construction. Exclusion of the natural justice hearing rule is inconsistent with such a construction.

3. On the face of the material before the Court, the Authority carried out a review, as required under Part 7AA, of the material referred to the Authority. No jurisdictional error of the kind identified in Grounds 1 or 2 of the amended application is made out. The Authority, in relation to Ground 1, carried out a review in accordance with the requirements of Part 7AA in respect of an applicant that was not an excluded fast track applicant. It was a proper and reasonable exercise of the power of the Authority under part 7AA in the present case for the reasons the Authority gave to determine to affirm the fast track reviewable decision in accordance with s.473CC(2)(a).

4. There is no obligation in the present case on the Authority to remit the matter under s.473CC(2)(b). The reasons of the Authority do not reflect any relevant legal error, illogicality, or unreasonableness that required the Authority to exercise the power under s.473CC(2)(b). Any exercise of the power of the Authority in the present case under s.473CC(2)(a) cannot be said to lack an evident and intelligible justification. It was a reasonable exercise of the discretionary power by the Authority for the reasons the Authority gave and which were open on the material before the Authority. No jurisdictional error is made out.

Conclusion

1. The amended application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  26 September 2017