DRW17 v Minister for Immigration
[2018] FCCA 2237
•15 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRW17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2237 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5AA, 36, 46A, 65, 473BB, 473CA |
| Cases cited: ACA16 v Minister for Immigration & Anor [2017] FCCA 2074 Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 |
| Applicant: | DRW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2591 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms K Morris |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application 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 $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2591 of 2017
| DRW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 7 August 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s legal submissions filed on 7 August 2018.
The applicant is a citizen of Sri Lanka[1] who entered Australia at Christmas Island on 10 October 2012 as an “unauthorised maritime arrival”[2] (as defined in s.5AA of the Migration Act 1958 (Cth) (Migration Act)).
[1] Court Book (CB) at 6.
[2] CB at 1 and 13.
On 9 December 2015, the Minister’s Department wrote to the applicant to advise him that the Minister had exercised his power under s.46A(2) of the Migration Act to permit him to apply for a protection visa, and invited him to do so.[3]
[3] CB at 16 to 21.
On 6 February 2017, the Minister’s Department received the applicant's application for a protection visa.[4]
[4] CB 24 to 66.
The applicant's claims are contained in his statement annexed to his application for a visa lodged with the Minister’s Department and at an interview before the delegate.[5] They are summarised in the delegate's decision and at [6] of the Authority's decision (DR).[6] The applicant claimed to fear harm from the Liberation Tigers of Tamil Eelam (LTTE), the Karuna group and the Sri Lankan authorities (in particular the police) by reason of:
a)his status as a Sri Lankan male of Tamil ethnicity with imputed LTTE connections;
b)his alleged abduction in March 2007 by three LTTE members who then took him to a camp where he was forced to undergo training by the LTTE. The applicant asserted he escaped after a month and hid in different friends’ homes. He then worked in Qatar between December 2007 and November 2009 because he was afraid of the LTTE;
c)an attempt in early 2010 by the Karuna group to recruit him and his adduction in a van and later questioning by the Karuna group about his LTTE camp experience;
d)his refusal to pay a bribe to a group of Sri Lankan police; and
e)his status as an illegal departee from Sri Lanka, and as a failed asylum seeker.
[5] CB 61 to 66 and 89 to 90.
[6] CB 88 to 91 and 104 to 105.
On 17 May 2017, the delegate made a decision under s.65(1)(b) of the Migration Act to refuse to grant to the applicant a protection visa.
Authority's decision
On 22 May 2017, the Minister referred the delegate’s decision, being a “fast track reviewable decision”, as defined in s.473BB of the Migration Act, to the Authority for review in accordance with his obligation under s.473CA. The applicant was notified of the referral on that day.[7]
[7] CB at 100 to 101.
On 7 August 2017, the Authority affirmed the delegate’s decision.[8] The Authority had regard to the information referred by the Secretary. The applicant did not provide any new information to the Authority and the Authority did not obtain any new information.[9]
[8] CB at 102 to 114.
[9] CB at 104: DR at [3] and [4].
The Authority rejected all of the applicant's claims of fearing harm.[10] The Authority found the applicant had “fabricated his claims” about the LTTE and the Karuna group.[11] Similarly, the Authority found the applicant had “manufactured his claims in their entirety” in respect of his purported police interactions.[12]
[10] CB at 109: DR at [36] and [37].
[11] CB 105 and 106: DR at [8], [12], [16]. (The DR does not include a paragraph 9.)
[12] CB at 108 and 107 to 108: DR at [33], see also [21] - [32].
The Authority considered that the applicant was not a credible witness[13] having found that:
a)the applicant provided vague and inconsistent accounts about his LTTE, Karuna group and police incident claims;
b)the applicant's account of his abduction and forced training by the LTTE in March 2007 was contrary to his documentary evidence that he was studying and working as a plumber in 2006 and 2007;
c)the applicant's claimed fear of harm from the LTTE and Karuna group was inconsistent with the applicant returning twice to Sri Lanka after working in Qatar and Iraq; and
d)the police information report and Justice of the Peace letter (provided by the applicant to the delegate in support of his claims)[14] were not consistent with the applicant's claims.
[13] CB at 105: DR at [8].
[14] CB at 80 and 81.
The Authority did not accept that:
a)the applicant had any imputed or actual LTTE associations. It noted that the applicant, according to his documentary evidence, was studying and working at the time he was allegedly forcibly taken by the LTTE;[15]
[15] CB at 106 and 109: see DR at [10] to [12] and [36].
b)the Karuna group questioned the applicant about his LTTE camp experience (given it did not accept the applicant had such an experience). It further noted that the applicant:
i)made no claim about the Karuna group in his arrival interview or in his November 2012 interview; and
ii)was unsure and hesitant when the delegate observed that the police information letter referred to an attack by the TMVP and not the Karuna group;[16]
[16] CB AT 106: DR [13] to [20].
c)the applicant was targeted by the police to pay a bribe because he was Tamil. It found the applicant's claims in this regard to be inconsistent and lacking in credibility. It did not accept that the applicant was stopped by the police or that they looked for him as he claimed;[17]
d)the applicant was of any adverse interest now or in the reasonably foreseeable future, if he returned to Sri Lanka from:
i)the Sri Lankan authorities;
ii)the police paramilitary;
iii)the Karuna group;
iv)unidentified people or other groups for an imputed pro-LTTE or anti-Sri-Lankan government political opinion; and/or
v)because of his age, being a young Tamil Hindu male from the Eastern province, who had lived and worked in Qatar and Iraq;[18] and
e)the applicant would face harm as a failed asylum seeker[19] or as an illegal departee under Sri Lanka's Immigrants and Emigrants Act.[20]
[17] CB at 108: DR at [22]
[18] CB 109: DR at [48] (se also DR at [36] to [47]).
[19] CB at 111: DR [49] to [53].
[20] CB at 111 to 113 and 114: DR at [55] to [63] and [70].
Based on those findings, the Authority found the applicant did not meet the requirements of either s.36(2)(a) or s.36(2)(aa) of the Migration Act.[21]
[21] CB at 113 and 114: DR at [64], [73].
The present proceedings
These proceedings began with a show cause application filed on 17 August 2017. There are three grounds in that application reproduced at [15] of the Minister’s submissions:
Ground 1
IAA made a jurisdictional error.
Particulars
IAA did not consider Karuna Group acting discreetly killing its opponents.
That was a relevant issue.
Ground 2
IAA did not take in account a relevant issue.
Particulars
Persons imputed with LTTE profile are in danger in Sri Lanka.
Ground 3
IAA did not take into account a relevant issue.
Particulars
Sri Lankan authorities have recommended arrests of former LTTE suspects and their relatives.
The application is supported by a short affidavit filed with it. I have before me as evidence the court book filed on 6 December 2017. Only the Minister filed written submissions in advance of today’s hearing.
I invited oral submissions from the applicant this morning. He referred to his fears of harm in Sri Lanka. He said that he was unable to return there. He was, however, unable to advance any legal argument in support of his application.
The Minister’s submissions deal adequately with the grounds in the application. I agree with those submissions.
By each of his grounds of review, the applicant contends that the Authority failed to consider relevant issues. None reveal an arguable case of jurisdictional error.
The legal principles in relation to taking into account irrelevant matters or failing to take into account relevant matters, and the subject matter of unreasonableness, were all examined in Minister for Aboriginal Affairs v Peko-Wallsend Limited.[22] In that decision, the High Court stated:
In some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that a decision is manifestly unreasonable…
It has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it would be slow to do so because the mere preference for a different result will not suffice… So too, in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors lest it exceed its supervisory role by reviewing the decision on its merits.
[22] (1986) 162 CLR 24
A fair reading of the DR discloses that the Authority gave full and careful consideration to the various assertions made by the applicant but was not persuaded by them having found them to be fabricated and the applicant not a credible witness. The applicant's grounds of review are misconceived. It is apparent that the decision of the Authority is not one that is manifestly unreasonable. Rather, the conclusions reached by the Authority were open to it on the material before it.[23]
[23] See ACA16 v Minister for Immigration & Anor [2017] FCCA 2074 at [57].
Ground 1 misconstrues the Authority's findings. As observed above, the Authority found the applicant had “fabricated” his claims regarding the Karuna group.[24] It was not satisfied the Karuna group had “any interest” in the applicant,[25] or were looking for him.[26] In those circumstances, it was not necessary for the Authority to consider the applicant’s asserted claim that the Karuna group was “discreetly killing its opponents”. Moreover, there is nothing to suggest this claim was raised by the applicant before the delegate or the Authority. The Authority was not required to consider a claim that was not expressly made or did not arise clearly on the materials before it.[27] Further, to the extent that any such claim arose on the materials, the Authority was not required to make a finding in circumstances where that claim was subsumed in findings of greater generality or where the factual premise upon which a contention rests has been rejected.[28]
[24] CB at 106: DR at [16].
[25] CB at 107: DR at [20].
[26] CB at 109: DR at [37].
[27] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [61]
[28] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
Grounds 2 and 3 misconstrue the Authority’s findings and are factually incorrect. The Authority considered both of the claims agitated in Grounds 2 and 3.[29] However, it did not accept the applicant “had any involvement with the LTTE, or that the LTTE or [the] authorities have [any] interest in the applicant.”[30] It further found that the applicant would not be perceived as having any real or imputed LTTE connections.[31] Given those findings, neither Grounds 2 or 3 reveal any arguable claim of jurisdictional error. The Authority was not required, having rejected the applicant’s claims regarding his LTTE incidents, to consider whether a person imputed with an LTTE profile is in danger in Sri Lanka or whether “Sri Lankan authorities have recommended arrests of former LTTE suspects and their relatives”. Further, contrary to the applicant’s contentions, the Authority did consider the risks of harm of persons associated with the LTTE or who were low profile members. However, it found that the applicant did not have such a profile and was not of interest to the Sri Lankan authorities and did not have a LTTE profile, actual or imputed.[32]
[29] CB at 109 and 110: DR at [38] to [39], [45].
[30] CB at 106: DR at [12].
[31] DR at [36].
[32] CB at 110: DR at [45].
Conclusion
I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the authority. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Rules 2001 (Cth) (Federal Circuit Court Rules).
The applicant claimed impecuniosity, but that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 August 2018
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