DRG17 v Minister for Immigration

[2018] FCCA 221

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRG17 v MINISTER FOR IMMIGRATION & ANOR [2021] FCCA 221

Catchwords:
MIGRATION – Immigration Assessment Authority – safe haven enterprise visa (class XE) (subclass 790) visa – application without merit – application refused.

Legislation:
Migration Act 1958, pt.7AA, ss.473CA, 473DA, 473DC

Cases cited:
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; (1999) 56 ALD 231; [1999] FCA 507
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; [2001] FCA 1376
Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

Applicant: DRG17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File number: PEG 439 of 2017

Judgment of: Judge Wilson

Hearing date: 29 January 2018

Date of last submission: 29 January 2018

Delivered at: Perth

Delivered on: 29 January 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Sarah Oliver

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

1. The applicant’s application for an adjournment is refused.

2. The application filed 11 August 2017 is dismissed.

3. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA AT PERTH

PEG 439 of 2017

DRG17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

(Ex tempore)

Applicant’s application ore tenus for an adjournment

1. On 7 September 2017, a registrar of this court ordered this case to be heard at this time on this day for final hearing.  At 2:15pm on the appointed day of the hearing, the applicant has applied ore tenus for an adjournment.  He told me he is without legal assistance.  On 8 January 2018, his previous lawyer, a Mr Draper, filed a notice dated 14 December 2017 with this court indicating that he intended to withdraw.  On 8 January 2018 this year Mr Draper filed a notice to say he had, in fact, withdrawn as the applicant’s representative.

2. After some questioning from me and from counsel for the first respondent, it became apparent that the applicant has done very little since 8 January 2018 to obtain alternative representation.  He told me he had looked for only one other alternative lawyer since Mr Draper’s withdrawal.  He said he was unable to recall the name of that alternative lawyer.  He said he was unable to recall the name or the date upon which alternative help was sought.  He said he was frightened and that explained his lack of memory.  Later he sought assistance from the Tamil Association. 

3. Whatever may be the truth of the situation, it seems to me that the applicant has had an abundance of time since Mr Draper withdrew as his legal representative.  The applicant has had more than enough time to find alternative representation.  It is apparent that the applicant has had not complied with other aspects of the orders made on 7 September 2017.  I am far from persuaded that this is a genuine request that the applicant makes. On the contrary, I find that it more closely resembles a delaying tactic.

4. I refuse the applicant’s application to adjourn. 

The application before the court

1. By application filed on 15 August 2017, the applicant sought an order for the issue of constitutional writs in relation to a decision of the Immigration Assessment Authority (“IAA”) made on 18 July 2017.  The applicant raised three grounds for his applicant for judicial review of the IAA’s decision.  Expressed verbatim, those grounds were as follows –

   1.The Assessor failed to consider properly all my claims.

   2.I could not understand the interpreter during my interviews.  The interpreter spoke ‘slang’ Tamil which is Indian Tamil. 

   3.The assessor didn’t give me a chance to comment on the aspects of my claim.

2. On 7 September 2017 a registrar of this court made orders by consent in this case, one order of which required the applicant to file and serve written submissions in support of his application for review within 42 days of this hearing.  The applicant failed to file those submissions. 

3. On 8 January 2018 the applicant’s solicitors withdrew.  When this case came on for hearing before me today, the applicant was not legally represented.  He sought – and, for reasons already given, I refused – an application to adjourn this hearing.  As is my usual practice in migration cases where an applicant is unrepresented, I required the Minister’s representative to outline in non-controversial terms the essence of the case to be determined today.  I then called upon the applicant to tell me in his own words what he said the IAA did wrong in this case and why he said the IAA fell into jurisdictional error. 

Synopsis

1. For the reasons that follow, in my judgment, the IAA did not fall into jurisdictional error in this case.  None of the three grounds of review had merit.  In my view, this proceeding should be dismissed and an order should be made that the applicant pay the Minister’s costs. 

Short factual narrative

1. The applicant, a Sri Lankan Tamil male, arrived in Australia on 18 November 2012 as an unauthorised maritime arrival.  On 8 July 2016 the applicant applied for a safe haven enterprise visa (class XE) (subclass 790) visa (“the visa”).  On 20 October 2016, the applicant attended an interview after being invited to so attend by letter dated 27 September 2016. 

2. On 18 November 2016 the Minister’s delegate refused to grant the applicant the visa. 

3. The delegate’s decision was a fast-track decision with the consequence that under s.473CA of the Migration Act 1958 (“the Act”) the delegate’s decision was referred to the IAA on 24 November 2016.  On 13 December 2016 the applicant provided a statement to the IAA.  It was in eight numbered paragraphs.  In paragraph 2 of that statement the applicant asserted that he could speak a little English, yet the statement was in faultless English, well punctuated and grammatically correct.  It appeared the applicant had assistance in formulating that statement.  Be that as it may, in the statement the applicant voiced his complaint about the way he thought the delegate conducted the interview on 20 October 2016. 

4. The applicant asserted –

   a)he did not receive adequate notice of the interview; 

   b)that he was telephoned when he did not have a Tamil interpreter and, as he was asleep when a representative of the delegate telephoned him, he found it difficult to understand what the caller was saying; 

   c)he did not have sufficient time to prepare for the interview; 

   d)he was prevented (his word) from presenting all of his claims during the interview, as the interviewer allegedly cut him off from properly explaining the information he wished to give; 

   e)he found the delegate’s attitude towards him to have been belittling and intimidating (his words, again); and 

   f)he was not treated fairly.

5. Before the IAA, the applicant told the interviewer that the applicant was happy to proceed without a representative present, as the reviewer recorded in paragraph 5 of his reasons.  In paragraph 6 of his reasons, the IAA reviewer recorded that he had listened to the recording of the interview between the applicant and the delegate and that the applicant’s assertions in relation to the conduct of the delegate were not well founded.  The reviewer said in his reasons that at no stage during the interview with the delegate did the applicant raise any concern with the delegate to the effect that the applicant was being cut off or otherwise denied the opportunity of providing full answers to the questions posed.  The reviewer also pointed out that the delegate told the applicant, prior to the delegate providing a decision, that any further information would be considered and that at no stage did the applicant tell the delegate that he (the applicant) had not been given enough time to answer the delegate’s questions. 

6. So far as the applicant’s claims in this case were concerned, the IAA addressed them in paragraph 8 of its reasons.  It is useful to record them, as summarised by the IAA.  They were as follows –

   a)the applicant was a Tamil male from Jaffna district in the northern province; 

   b)in February 2011 the applicant’s cousin accused an officer of the Sri Lankan Army (“SLA”) of touching her inappropriately; 

   c)following that, the applicant came to the adverse attention of the SLA officer when he (the applicant) lodged a complaint about the officer’s misconduct with the officer’s superiors, after which the SLA officer often beat the applicant and accused him of having links to the Liberation Tigers of Tamil Eelam (“LTTE”); 

   d)prior to his departure from Sri Lanka, the applicant spent about 12 months in Batticaloa in hiding where he was questioned by unknown persons; 

   e)the SLA officer continued to search for the applicant following the applicant’s departure from Sri Lanka; and 

   f)if he returned to Sri Lanka the applicant fears he will be harmed or killed by the Sri Lankan Army by reason of his Tamil ethnicity and imputed links to the LTTE. 

7. The applicant complained in this case that the IAA failed to properly consider all his claims.  So far as the claim he made that he was a Tamil male from Jaffna District, the IAA addressed that claim in paragraph 11 of its reasons accepting that the applicant was a Tamil male from that part of Sri Lanka. 

8. In relation to the claim that the applicant made that the applicant’s cousin accused the SLA officer of touching her inappropriately, the IAA addressed that claim in the fourth sentence of paragraph 12 of its reasons as well as in paragraph 28 of its reasons.  In paragraph 28, the IAA accepted that it was plausible that the applicant’s cousin was mistreated by a Sri Lankan Army officer in February 2011.  It seemed to me that the IAA in fact considered that component of the applicant’s claims.

9. The applicant’s claims included a claim that the applicant lodged a complaint with the SLA officer’s superiors.  The IAA addressed that issue in paragraphs 14 and 16 of its reasons. 

10. The applicant’s claim that he went into hiding in Batticaloa was addressed in paragraph 18 of the IAA’s reasons.  The claim that the applicant was questioned while in Batticaloa was also addressed in paragraph 18 of the IAA’s reasons.  In that same paragraph of the IAA’s reasons was the IAA’s consideration of the applicant’s claim that the SLA officer continued to search for the applicant following his departure from Sri Lanka.

11. The IAA addressed the applicant’s claim that the applicant has been imputed with links to the LTTE in paragraph 28 of its reasons. 

12. Having addressed the applicant’s claims in the ways described above, the IAA concluded that the applicant had given inconsistent evidence.  Specifically, the IAA found that the applicant gave inconsistent evidence about –

    a)the number of times he had been detained, the number of SLA officers who were present and the number of times he was taken to an isolated house, as the IAA reasoned in paragraph 21;

    b)when he was required to report to the SLA camp, as the IAA reasoned in paragraph 22;

    c)whether any other police or security or intelligence organisations impacted upon the applicant’s day to day life in Sri Lanka, as the IAA reasoned in paragraph 23;

    d)where he stayed and for how long prior to leaving Sri Lanka, as the IAA reasoned in paragraph 24; and

    e)how he obtained his passport, as the IAA reasoned in paragraph 25 of its decision.

13. The IAA concluded in paragraph 27 of its decision that the applicant was not recalling a genuine personal experience in relation to the events he claimed led to his decision to leave Sri Lanka.  The IAA did not accept that the applicant came to the adverse interest of the SLA officer as the applicant claimed, or that the SLA officer continued to search for him, or that the applicant had been imputed with links to the LTTE, or that the applicant came to the adverse attention of paramilitary groups or others while residing in Batticaloa.  The IAA concluded that it was not satisfied that the applicant –

    a)faced a real chance of serious harm due to those events (paragraph 30 of its reasons);

    b)faced a real chance of serious harm due to his Tamil ethnicity or imputed connections to the LTTE, having regard to the applicant’s profile and applicable country information (paragraph 31 of its reasons); and

    c)would be harmed by the Sri Lankan authorities by reason of his being a failed asylum seeker (paragraph 33 of its reasons).

14. On the issue of complementary protection, the IAA concluded –

    a)the applicant would not face a real risk of significant harm for any of the reasons he advanced; and

    b)if he returned to Sri Lanka, the treatment he would face as a Tamil and the questioning to which he may be subjected would not amount to significant harm.

15. In the end, the IAA affirmed the decision not to grant the applicant a protection visa.

In this court

1. The grounds of review on which the applicant relied have already been canvassed.  Let me at once turn to a consideration of each.

Ground 1

1. Under this ground, the applicant asserted that the IAA failed to consider properly all his claims.  He gave no details of that assertion, especially –

   a)which claims he said were not properly considered by the IAA; and

   b)the way in which those claims were allegedly not properly considered.

2. The Minister contended that an assertion that the IAA failed to properly consider his claims was, in the absence of particulars, meaningless.  The Minister relied on the decision of Reeves J in SZNXA v Minister for Immigration and Citizenship[1] by way of support.  True, no particulars of the ground were given.  To that extent, the Minister’s submission was correct.  However, on a careful consideration of the IAA’s reasons, it seemed to me to be readily apparent that the IAA did, in fact, properly consider each of the claims that the applicant made in this case.  Far from the IAA not properly considering all of the applicant’s claims, the IAA did as it was charged by statute to do, namely, consider each of the applicant’s claims.  I detected no error in the IAA’s analysis and consideration of each of the applicant’s claims.  In my view, the conclusions the IAA reached were open.  In my view, ground 1 had no merit.

   [1] [2010] FCA 775

Ground 2

1. Under this ground, the applicant advanced an argument that he could not properly understand the interpreter during his interview.  The applicant gave no details of that contention.  The Minister argued that the applicant –

   a)gave not particulars of the interview he said he was unable to understand through the interpreter;

   b)provided no evidence in the form of transcript to support the contention that any evidence was misinterpreted; and

   c)did not explain what errors in translation – if there were any – were material to the IAA’s conclusion and adverse to him.

2. The Minister called in aid several authorities to support his contentions.  Those included Perera v Minister for Immigration and Multicultural Affairs,[2] Soltanyzand v Minister for Immigration and Multicultural Affairs,[3] Singh v Minister for Immigration and Multicultural Affairs[4] and Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[5] 

   [2] (1999) 92 FCR 6

   [3] [2001] FCA 1168

   [4] (2001) 115 FCR 1

   [5] [2003] FCAFC 230

3. It must not be overlooked that at no stage did the applicant take a point that he suffered from any difficulty in understanding the work of the interpreter, a point picked up by the IAA in paragraph 26 of its reasons.  It seemed to me that the applicant should have raised the point on the spot if he had been genuinely concerned about it, especially about alleged interpretation difficulties.  He failed to do so and instead purported to raise the point on the hearing of an application for judicial review.  To my mind, that should not be tolerated. 

4. Ground 2 was devoid of merit.

Ground 3

1. Under ground 3, the applicant asserted that the IAA did not give him an opportunity to “comment on the aspects of my claim”, those being the words used in the ground itself.  As with all other grounds in this case, the applicant failed to provide any details of his contentions in relation to ground 3.  Consistent with his obligations as a model litigant, the Minister endeavoured to comprehend the real import of the point and to provide submissions in answer, which counsel for the Minister did between paragraphs 26 to 36 of the Minister’s written submissions.  I have addressed those paragraphs in the points that follow.

2. Before turning to those issues, it is as well to observe that provisions relating to natural justice under division 3 of Part 7AA of the Act are much circumscribed. Section 473DA of the Act makes it plain that division 3 of Part 7AA of the Act is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA. Section 473DC of the Act provides that the IAA has no duty to obtain any new information, whether requested to do so by the applicant or otherwise. Further, the IAA is under no obligation to give notice that it may make a particular finding and to invite comment on that possibility, a matter considered by Barker J in DBE16 v Minister for Immigration and Border Protection.[6] 

   [6] [2017] FCA 942 (at [65])

3. In relation to ground 3, the Minister, in written submissions, contended that the Minister construed ground 3 to constitute a complaint that the applicant was not provided with an opportunity to comment on so much of his claim that the delegate accepted yet the IAA rejected.  The Minister contended that paragraph 28 of the IAA’s reasons illustrated a circumstance where the delegate accepted that the SLA officer had taken advantage of his position and had avenged himself against the applicant as well, yet the IAA did not accept that the applicant came to the adverse interests of the SLA officer as claimed. 

4. To my mind, the construction placed by the Minister on ground 3, as articulated in the immediately preceding paragraph, was charitable. To my mind, on its plain construction, ground 3 amounted to a complaint that the assessor (properly called the reviewer) did not enable the applicant to comment on his claims. At a factual level, that contention was ill-directed. Under division 3 of Part 7AA, the IAA was not obliged to invite the applicant to comment on a possible finding to be made by the IAA. Insofar as ground 3 sought to agitate that such an obligation existed, that was wrong in law.

5. Ground 3 was devoid of merit.

Conclusion

1. All three grounds of review failed.  I dismiss this proceeding.  The applicant must pay the Minister’s costs fixed in the sum of $7,328.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 1 February 2018