DRW17 v Minister for Immigration and Border Protection
[2019] FCA 273
•4 March 2019
FEDERAL COURT OF AUSTRALIA
DRW17 v Minister for Immigration and Border Protection [2019] FCA 273
Appeal from: Application for leave to appeal: DRW17 v Minister for Immigration & Anor [2018] FCCA 2237 File number: NSD 1548 of 2018 Judge: BURLEY J Date of judgment: 4 March 2019 Catchwords: MIGRATION – refusal of Safe Haven Enterprise Visa application – fast track review – application for leave to appeal – whether IAA had failed to consider integers of the applicant’s claim – whether IAA failed to consider new information – whether IAA had erred in its findings on credibility – whether procedural fairness had been denied in the Federal Circuit Court – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) ss 36(2), 473BB, 473CB, 473DB
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 844; (1991) 33 FCR 397
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
DRW17 v Minister for Immigration & Anor [2018] FCCA 2237
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190
Date of hearing: 12 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 1548 of 2018 BETWEEN: DRW17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
4 MARCH 2019
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicant pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1. INTRODUCTION
The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia by boat in October 2012 as an unauthorised maritime arrival. In February 2017 he lodged an application for a Safe Haven Enterprise visa (subclass 790) (SHEV). His application was based on the provisions of s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth). He fears harm in the event that he is required to return to Sri Lanka on the basis of: his Tamil ethnicity; an imputed political opinion in relation to the Karuna group and/or the Liberation Tigers of Tamil Eelam (LTTE); being a young man whom the LTTE and the Karun group attempted to recruit; and being a failed asylum seeker.
On 17 May 2017 a delegate of the Minister for Immigration and Border Protection made a decision to refuse the grant of the visa. The decision is a “fast track reviewable decision” as defined in s 473BB of the Act. On 22 May 2017 the Minister referred the delegate’s decision to the Independent Assessment Authority (IAA) for review. On 7 August 2017 the IAA affirmed the delegate’s decision.
The applicant then applied to the Federal Circuit Court of Australia (FCCA) for a review of the decision of the IAA. The FCCA listed the proceedings for a show cause hearing pursuant to r 44.12 of that court’s rules. On 15 August 2018 the hearing was conducted and a judge of the FCCA determined that none of the grounds of review revealed any arguable case of jurisdictional error and dismissed the application; DRW17 v Minister for Immigration & Anor [2018] FCCA 2237.
In August 2018 the applicant filed an application for leave to appeal in this court pursuant to r 35.12 of the Federal Court of Australia Rules (FCR). Leave to appeal is necessary because the decision of the FCCA was interlocutory in nature.
The application for leave to appeal raises the grounds summarised below, on the basis that the FCCA failed:
(1)to find that the IAA committed jurisdictional error by failing to consider the integers of the applicant’s claims to complementary protection;
(2)to find that the IAA failed to consider certain new information;
(3)to find that the IAA erred in relation to its findings as to credibility;
(4)to find that the IAA denied the applicant procedural fairness;
(5)to find that the delegate failed to take into account the possibility that the applicant was imputed to be an LTTE supporter or person with LTTE links before he left Sri Lanka and the consequences of that possibility;
(6)to ensure that the show cause conducted was fair in circumstances where the applicant was self-represented.
The applicant represented himself at the hearing with the assistance of a Tamil interpreter. He did not file any written submissions in support of his application. The Minister was represented by Clayton Utz solicitors and filed written submissions in advance of the hearing.
After making oral submissions in support of his application the applicant applied for an adjournment of the hearing. He contended that he would like further time within which to seek legal advice. He also referred to an email that he had sent to my chambers (copied to the Minister’s representative) in which reference was made to a request for an adjournment on medical grounds, primarily on the basis of mental ill health. Regrettably for the applicant, the document provided in support of that application provided no objective corroboration for the condition that he claimed to suffer. Upon questioning as to the steps he had taken to seek legal assistance, the applicant indicated that he had approached a barrister for assistance in the past 4 – 5 days. I have noted that the application for leave to appeal in these proceedings was filed in August 2018. The applicant has apparently taken no steps to secure assistance until the last possible moment. In those circumstances I was not satisfied that the applicant had established a sufficient basis to adjourn the hearing.
2. THE DECISIONS OF THE IAA AND FCCA
The IAA indicated that it had regard to the material referred to it by the Secretary of the Department for Home Affairs under s 473CB of the Act. It summarised the applicant’s claims as follows:
•He is a young Tamil Hindu male from the Eastern province who has worked as a plumber and in construction.
•He fears harm from the police and the Karuna group on the basis of his Tamil ethnicity, imputed political opinion in relation to the Karuna group and the LTTE and membership of a particular social group of young men who the LTTE and the Karuna group attempted to recruit.
•On 10 March 2007 three LTTE members forcibly took him from his home to their camp, where he was forced to join the LTTE and undergo training. However, after a month he escaped and hid in different friends’ homes.
•Between December 2007 and November 2009 he worked in Qatar and he went there because he was afraid of the LTTE.
•The Karuna group tried to recruit him in early 2010. He made a mistake in his arrival interview and said it was 2009. They came to his home two or three times to find him and encourage him to join the group. He did not want to join because he did not agree with what they did.
•The Karuna group took him in a van and questioned him about his LTTE camp experience. They threatened and slapped him. He stated in his arrival interview he was tied up. However he cannot recall and this may not have happened.
•He worked in Iraq between May 2010 and December 2010. He left Sri Lanka because he feared that as a Tamil he would be arrested, interrogated and harmed. He feared the LTTE, Karuna group and police, but returned to Sri Lanka anyway.
•In 2011 and 2012 he still feared the Karuna group would harm him and come to the house.
•On 13 September 2012 he and a friend (Mano) were stopped by police and asked for money. The police were in uniform and drunk…
•The next day the police went to the friend’s house and obtained the applicant’s address. Three days later the same police, in casual clothes, came to his home and asked for him. He knows this because his parents told him.
•The applicant went to his aunt’s house in Batticaloa, 14 km away, because he feared the police as he refused to pay the bribe. Two weeks later he arranged to come to Australia.
•His parents have told him the police have come to the house looking for him 9 or 10 times. He fears the police want personal revenge and he fears he will be falsely charged and police will seriously harm or kill him.
•He fears the Karuna group will harm him because he refused to join them. The police will not protect him from the Karuna group. He planned to leave Sri Lanka two and half months before he left in September 2012 because he feared the Karuna group would try to recruit him. They had tried to recruit him in 2009. He feared if he did not join they would beat, torture, arrest and kill him. He made plans to leave and once the police incident occurred he was more fearful and left quickly. He fears harm from Karuna and the police.
•He fears he will be arrested for going to Australia illegally. The CID and police will ask where he has been and fears he will be arrested and killed as others have been.
•He cannot relocate as he is Tamil and cannot speak the language and Sinhalese people will associate him with the LTTE. He fears they will find out he was in an LTTE camp in 2007. He will be harmed if he moves to Colombo as he is a stranger and Tamil.
•If he returns as a failed asylum seeker he will come to the attention of authorities and be harmed and not be able to leave the country and they will think he has been saying bad things about the government. He fears arrest, jail, physical harm and death.
The IAA then indicated that in large part it did not regard the claims to be credible. The learned primary judge accurately summarised the reasoning of the IAA, which I respectfully adopt (references omitted):
10.The Authority rejected all of the applicant’s claims of fearing harm. The Authority found the applicant had “fabricated his claims” about the LTTE and the Karuna group. Similarly, the Authority found the applicant had “manufactured his claims in their entirety” in respect of his purported police interactions.
11.The Authority considered that the applicant was not a credible witness 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) were not consistent with the applicant's claims.
The IAA then rejected the substance of the applicant’s claims. The primary judge summarised those findings as follows:
12. 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;
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;
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;
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; and
e) the applicant would face harm as a failed asylum seeker or as an illegal departee under Sri Lanka's Immigrants and Emigrants Act.
13.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
Three grounds of review were advanced before the primary judge. The first was that that the IAA made a jurisdictional error because the IAA did not consider Karuna Group acting discreetly killing its opponents, which was a relevant issue. The second was that the IAA did not consider a relevant issue being that persons imputed with an LTTE profile are in danger in Sri Lanka. The third was that the IAA did not take into account a relevant issue in that Sri Lankan authorities have recommended arrests of former LTTE suspects and their relatives.
The primary judge found that none of the grounds reveal an arguable case of jurisdictional error. He considered that each concerned a failure to consider relevant issues. Having regard to the substance of the decision of the IAA, the primary judge found that the IAA gave full and careful consideration of 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 primary judge found that the conclusions of the IAA were open to it on the material before it and, broadly, that the contentions based on the failure of the IAA to take into account relevant considerations were based on a misconstruction of the IAA’s reasons.
As the present proposed grounds of appeal are new and do not coincide with those advanced before the primary judge, it is unnecessary to address the reasons given by the primary judge in further detail.
3. THE APPLICATION FOR LEAVE TO APPEAL
In considering the question of the grant of leave to appeal, I must take into account the statements of principle in Décor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 844; (1991) 33 FCR 397 (Sheppard, Burchett and Heerey JJ), to the effect that this Court will generally grant leave to appeal where the applicant shows that there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review and, further, if that judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (per Mortimer J).
The Minister submits that the above principles have the consequence for the present case that the primary consideration in considering leave to appeal is the merits of the proposed appeal. I agree.
The first proposed ground of appeal is that the primary judge failed to hold that the IAA committed jurisdictional error as it failed to consider the integers of the claims to complementary protection. I have noted that none of the proposed grounds of appeal was raised before the primary judge and so the premise of error on the part of the learned primary judge is incorrect. However, I proceed to consider this ground, as I do all of the grounds below, on the basis of considering error on the part of the IAA alone.
In particulars appended to this ground, the applicant contends that the IAA did not cite two reports that he alleges formed part of the relevant country information. The first is a DFAT report dated 23 May 2018, the second is a DFAT report dated 24 January 2017. The first was prepared after the decision of the IAA and after the date of the decision of the primary judge. It is accordingly irrelevant. In relation to the second, it is to be noted that the IAA states in [3] of its decision that it had regard to the material referred to it by the Secretary pursuant to s 473CB of the Act. That material includes the evidence on which the delegate’s findings were based. The delegate referred in terms to the 24 January 2017 DFAT report, which accordingly formed part of the review material. The IAA at [42] (and elsewhere) refers directly to the DFAT reports that were in the review material, being the materials before the delegate. Accordingly, there is no arguable basis upon which proposed ground 1 can be made out.
In proposed ground 2 the applicant contends that the IAA failed to consider new information in the form of the 23 May 2018 DFAT report. However, plainly enough a report that was created after the decision of the IAA could not be advanced before it. The ground is misconceived.
In proposed ground 3 the applicant contends that the IAA erred in making its credit findings. The particulars appended to the ground do not specify any aspect of the adverse credit findings where the IAA is said to have erred. At particular (c) the allegation made is that the primary judge failed to review the component parts of the process by the IAA that led to the finding “from the perspective of legal reasonableness”. I assume that this is intended to be a reference to the concept of legal unreasonableness.
The relevant credit findings of the IAA are summarised in [9] above. They include findings that the applicant was not a credible witness and that he fabricated a number of claims. The findings are based on the conclusion reached by the IAA that the applicant’s evidence includes vague and inconsistent accounts of events, that certain claimed events were implausible and that there were contradictions between versions of events given by the applicant and his own documentary evidence. The explanation of these findings given by the IAA is rational and intelligible. They do not reflect jurisdictional error.
In proposed ground 4 the applicant contends that the IAA denied him procedural fairness. The particulars provided state that the IAA decision was based on an assessment as to whether the applicant was to be believed and that there was a failure to give reasons or to disclose to the applicant the material upon which the finding was based. The applicant’s submissions must be considered in the context of Part 7AA of the Act. The obligation on the IAA is to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant; s 473DB(1). By s 473DA, 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 IAA. It is in this context that the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (Reeves, Robertson and Rangiah JJ) found that consideration of the natural justice requirements of Part 7 of the Act is inapposite for cases considered under Part 7AA (at [69]). As the Full Court noted at [75], there is no requirement in Part 7AA, equivalent to s 425, that provides that the IAA must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising. Indeed, by s 473DB the IAA must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
Furthermore, there is in any event no obligation on the part of the IAA to invite an applicant to comment on the existence or doubts or inconsistencies because his or her credibility is called into question; see, by analogy with Part 7, SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [18]. The obligation of the IAA under s 473DB is to review a fast track reviewable decision referred to it and consider the material provided, without accepting or requesting new information and without interviewing the referred applicant. The IAA quite evidently discharged that obligation.
In proposed ground 5 the applicant contends that the delegate was obliged to take into account the possibility that the applicant was imputed as an LTTE supporter or a person with LTTE links. If the delegate had done so, it may have affected his assessment of whether the applicant faces a real chance of persecution. The decision of the delegate is not the subject of the present appeal. I shall assume that the applicant contends that it is the IAA which erred.
This ground relies on the decision of Sackville J, with whom North J agreed, in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Sackville, North and Kenny JJ) at [60], [62] and [67]. However, the relevant passage in that case adverts to the presence of doubt on the part of the tribunal as to its conclusions:
62In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
In the present case the IAA did not express doubt as to its conclusions and accordingly was not required to take into account the possibility that a particular event took place in considering the ultimate question.
In proposed ground 6 the applicant contends that the primary judge failed to ensure that the show cause hearing before him was fair, and that the applicant did not suffer a disadvantage from being self-represented. The particulars appended to this ground contend that the primary judge failed to take appropriate steps to ensure that the applicant had sufficient information about the practice and procedure of the court and that the court failed to explain in plain terms that the applicant must identify why the decision of the IAA was not made lawfully. No evidence in support of these grounds has been supplied. The primary judge at [16] indicates that the applicant was invited to make oral submissions, which he then summarises. The applicant does not criticise the summary as inadequate. It is apparent that the applicant was afforded an opportunity to make submissions with respect to the grounds raised in the application and that he took that opportunity. In the absence of any evidence of any failure by the primary judge to explain procedure to the applicant, or that any failure could have affected the outcome, it is not apparent to me that this ground of appeal would have a real prospect of success.
Finally, during the course of the hearing in this court, the applicant made oral submissions in support of his application. He submitted that he could not go back to Sri Lanka, because anonymous people were looking for him. He submitted that 65,000 people had gone missing in Sri Lanka and that there were people still going missing. He submitted that he had tried to find evidence to support these points but he could not do so. To these submissions it is apposite to make the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the applicant satisfies the criteria for the grant of the SHEV or to grant the applicant a visa. As such, neither Court has the capacity to consider the factual merits of the IAA’s decision to refuse to grant the SHEV to the applicant. The jurisdiction of the FCCA is limited to considering only whether the IAA’s decision to refuse to grant the applicant the SHEV is lawful under the Act, that is, whether the decision of the IAA is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the IAA under s 24 of the Federal Court of Australia Act 1976 (Cth). The oral submissions of the applicant do no more than put forward a further basis, unsupported by evidence, upon which the merits of the decision of the IAA are challenged. That is not a permissible approach in a case such as the present.
4. DISPOSITION
For the reasons set out above, I have formed the view that none of the proposed grounds of appeal have sufficient prospect of success to warrant the grant of leave to appeal from the decision of the learned primary judge. Nor am I satisfied that the matters raised in oral argument give rise to a ground upon which leave to appeal should be granted. The application must be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 4 March 2019
0
10
2