Duo18 v Minister for Home Affairs

[2019] FCCA 1561

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUO18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1561

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Authority erred in its application of s.473DD of the Migration Act, or overlooked an integer of the applicant’s claims or failed to consider cumulatively the risks of harm confronting the applicant considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 473DD

Cases cited:

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Minister for Immigration v DDK16 [2017] FCAFC 188

Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant: DUO18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2029 of 2018

Judgment of: Judge Driver

Hearing date: 6 June 2019

Delivered at: Sydney

Delivered on: 5 July 2019

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Leave is granted for the applicant to file by 14 June 2019 and rely upon the amended application handed up in court on 6 June 2019.

2. The application as amended by leave extended on 6 June 2019 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 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 2029 of 2018

DUO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 10 July 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. On 1 May 2013 the applicant arrived in Australian waters (at Christmas Island) by boat as an unauthorised maritime arrival.[1] 

   [1] Court Book (CB) 58, 192

4. On 11 May 2013 the applicant participated in an “Enhanced Screening Interview”.[2]  As recorded in the decision of the Authority, the applicant made a number of claims in his protection visa application lodged in May 2017 and subsequent interview in August 2017 which he did not make during the enhanced screening interview.  The Authority had concerns about the late making of these claims.

   [2] The record of the interview is at CB 1-8

5. On 11 July 2013 the applicant participated in an “Irregular Maritime Arrival and Induction Interview”.[3]

   [3] The record of the interview is at CB 9-31, including the applicant’s claims at CB 20-21

6. Between May and August 2013 the applicant was in immigration detention, following which he was granted a bridging visa and released on the Australian mainland.[4]

   [4] CB 64

7. On 26 or 29 May 2017,[5] following the lifting of a statutory bar by the Minister stated in a letter dated 16 June 2016,[6] the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).[7]  The application included:

   a)a statement from the applicant dated 24 May 2017 which included a summary of some country information[8] and set out his claims;[9] and

   b)a table of information about family members which indicated that the applicant had a sister who resided in France, a brother who resided in Qatar, a sister who resided in the USA, a brother who resided in Australia and a brother who resided in France.[10]

   [5] CB 38, 130, 192

   [6] CB 33

   [7] CB 38-129

   [8] CB 75-83.9

   [9] CB 83.10-86

   [10] CB 55

8. On 17 August 2017 the applicant attended an interview with the delegate.[11]

   [11] CB 141, 193

9. On 13 November 2017 the delegate made a decision refusing to grant the applicant a SHEV.[12] 

   [12] CB 192-202

10. On 16 November 2017 the Authority sent the applicant a letter informing him of the referral of the matter to it and providing information about the Authority and referral.[13]

    [13] CB 208-221

11. On 30 November 2017 the applicant made a submission[14] and provided supporting documents[15] to the Authority.

    [14] CB 222-223

    [15] CB 224-236

12. On 10 July 2018 the Authority affirmed the decision under review.[16]

    [16] CB 240

13. In its reasons for decision the Authority set out those of the applicant’s claims which it accepted at [11] and proceeded to address the issues raised in the application and to make factual findings from [12]-[22].  The Authority at [12] referred to inconsistent claims the applicant had made between his SHEV statement[17] and his SHEV interview regarding his membership of the Liberation Tigers of Tamil Eelam (LTTE). The Authority did not accept that the applicant was ever approached by, or forced to join, the LTTE when he was at school.

    [17] CB 75

14. At [13]-[14] the Authority referred to the applicant’s accounts of mistreatment from the authorities in 2012. The applicant described such mistreatment in his statement as occurring after he returned to Sri Lanka from Qatar. The Authority at [14] referred to the fact that at his enhanced screening interview the applicant said he had not been taken or beaten by the Sri Lankan Army (SLA) since 2009. The applicant’s claims concerning being arrested, detained and beaten in 2012 were also not mentioned at the applicant’s entry interview. These matters were put to the applicant for comment by the delegate at the SHEV interview as stated at [14]. The Authority did not accept the explanation given by the applicant at the SHEV interview as to why these events were not earlier relayed. The Authority expressed further disbelief concerning the applicant’s claims regarding how many passports he held.[18]

    [18] at [15]-[16]

15. The Authority was not satisfied that the applicant’s mother was involved with the LTTE as claimed by the applicant at the screening interview.[19] It noted that the applicant had not raised this claim in his arrival interview, his statement of claims or at the SHEV interview. The Authority referred to the applicant’s claims concerning his father, including a claim in his statement of claims that his father was bribed by the Sri Lankan authorities to release the applicant from the CID in 2012 and that his father was severely beaten by the CID when they attended his home looking for the applicant. The Authority noted that the applicant during the SHEV interview made no mention of his father being severely beaten because he had bribed the Sri Lankan authorities to release his son. The Authority accepted at [19] that the applicant’s parents were questioned and/or beaten in 1997 because one of their sons was involved in the LTTE, but did not accept that 14-15 years after the applicant’s brother had died, the CID would be visiting the applicant’s parents to question them.

    [19] at [17]

16. The Authority considered the applicant’s claims in relation to his risk of harm for being a Tamil from the Northern Province with real or perceived links to the LTTE, his Catholicism and his returning to Sri Lanka as a failed asylum seeker. It did not accept that the applicant had protection obligations arising from these claims.

The current proceedings

1. These proceedings began with a show cause application lodged on 23 July 2018.  On 5 April 2019, I gave the applicant leave to file and serve a proposed amended application by 3 May 2019.  That deadline was not met but, at the trial of the matter on 6 June 2019, I extended that leave until 14 June 2019.  The Minister did not oppose that course.

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

   1.The applicant made a submission to the Immigration Assessment Authority ("the IAA") which included new information that some of the applicant's siblings had successfully sought refuge in a number of countries including Australia. The IAA found at [8] that it was "not satisfied that there are exceptional circumstances to justify considering the new information and I have not had regard to it". This finding and exercise of discretion under s 473DD of the Migration Act 1958 (Cth) was based on an intermediate finding that the new information had "no probative value". The IAA's intermediate finding that the new information had "no probative value" was wrong, and affected the IAA's finding that it was "not satisfied that there are exceptional circumstances to justify considering the new information". In the circumstances, the IAA fell into jurisdictional error in its application of s 473DD to the new information.

   2.The IAA considered whether the applicant faced a real chance of serious harm as a Tamil from the Northern Province. The IAA accepted at [27] that "surveillance of Tamils in the north and east continues". The IAA did not then address or deal with whether the frequency and nature of the surveillance gave rise to a real chance of serious harm for Tamils. In the circumstances. The IAA failed to deal with an integer of the applicant's claims. This is a jurisdictional error.

   3.The IAA found at [33]-[34] that the applicant faced a low risk of official and societal discrimination because he is Catholic and at [38] that he may be subject to some surveillance and social stigma from his community as a failed asylum seeker returning to Sri Lanka. A question is whether the combination of these risks of harms resulted in the applicant facing a real chance of serious harm. The IAA failed to consider these risks of harm cumulatively, which is a jurisdictional error.

3. I have before me as evidence the book of relevant documents (court book) lodged on 13 September 2018.

Consideration

Ground 1 – did the Authority err in finding that the successful protection claims made by the applicant’s siblings had no probative value?

1. The applicant stated the following in a submission to the Authority:[20]

   Some of my siblings have also fled Sri Lanka and had successfully sought refuge in the US, France and even Australia. My two brothers, [A] and [K], have applied for refuge in Australia and the latter has been granted protection. My brother [R] is in France. Sister and family have been granted refuge in the US.

   The basis for grant of protection to my siblings is the same as mine, and that is we all belong to a particular social group. That social group is members of LTTE fighter family.

   [20] CB 222.10-223.1

2. The submission attached some documents which corroborated some aspects of the claim that some of the applicant’s siblings had obtain refuge in the countries claimed.

3. Section 473DD of the Migration Act 1958 (Cth) (Migration Act) provides:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)  the referred applicant satisfies the Authority that, in relation to any newinformation given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

1. The Authority stated at [8]:

   I accept that the claim about the applicant’s siblings being granted protection in other countries is credible personal information. However, whether a person does or does not meet the requirements to be granted protection is based on the facts of each individual case.  The mere fact that some of the applicant’s siblings have been granted protection on the basis the applicant claims is the same as his own claims, has no probative value when assessing the applicant’s claims for protection in Australia.[21]  In those circumstances, I am not satisfied that there are exceptional circumstances to justify considering the new information and I have not had regard to it.

   [21] described by the applicant in his submissions as “the Proposition”

2. The applicant’s complaint is:

   a)the Proposition is wrong;

   b)the Authority’s finding that it was “not satisfied that there are exceptional circumstances” was based (and in fact solely based) on the Proposition.  This is clear from the words “in those circumstances”; and

   c)if the Court agrees that the Proposition is wrong, it follows that this affected the finding concerning “exceptional circumstances” which in turn affected the exercise of discretion under s.473DD. This is said to be a jurisdictional error.

3. The applicant contends that the Authority, in applying s.473DD to new information sought to be advanced by the applicant in a submission, erred in so far as it reasoned at [8] that “the mere fact that some of the applicant’s siblings have been granted protection on the basis the applicant claims is the same as his own claims, has no probative value when assessing the applicant’s claims for protection in Australia”.

4. I raised with the representatives at the trial my difficulty in interpreting [8] of the Authority’s reasons. In particular, it is not clear what part of that paragraph relates to s.473DD(b)(ii) and what part (apart from the last sentence) relates to s.473DD(a). If the Authority was purporting to make a positive finding for the purposes of s.473DD(b)(ii) and then in consequence a negative finding for the purposes of s.473DD(a), the reasoning would not make sense. That is because such a finding would have necessarily carried with it the finding that the information, had it been known to the Minister and his delegate, may have affected the delegate’s consideration of the applicant’s claims. That would necessarily provide some probative weight to the information. It would be contradictory to say that the information had no probative value.

5. Counsel for the Minister submitted orally that the better view of [8] is that it does not purport to make any finding for the purposes of s.473DD(b)(ii), notwithstanding the reference to “credible personal information” but, rather, only leads to a negative finding for the purposes of s.473DD(a). Viewed in that way, the paragraph is coherent and I accept that that is the preferable interpretation.

6. I agree with the Minister’s submissions in relation to the first ground.

7. First, the applicant submits that the Proposition “is wrong”.  That is, he submits that it is “not correct” that the “mere fact that some of the applicant’s siblings have been granted protection on the basis the applicant claims is the same as his own claims” has little, if any, probative value to the assessment of the applicant’s own claims for protection. On the applicant’s argument, the first ground could only succeed, but does not necessarily succeed, if the Court finds that the Proposition was wrong.

8. I accept, however, that the Proposition was not wrong, but rather was correct. The Authority was correct to observe that whether a person does or does not meet the requirements for the grant of a visa is based on the facts of each individual case. The applicant’s submission is that the information concerning the applicants’ siblings’ grants of protection “may have low probative value”. However, it was a matter for the Authority to assess for itself whether the information could have any probative value. In particular, the applicant’s submission that information relating to the applicant’s brother “K” being granted protection might have influenced the Authority’s findings at [21] (for instance) regarding the applicant’s claim that the SLA attended his father’s funeral cannot be accepted. As the Authority stated in effect, the applicant’s claims were to be assessed on its individual merits. What another decision-maker, considering different material associated with a different visa applicant, may have found in a different protection visa case cannot have influenced the Authority in the conduct of its review of the delegate’s decision.

9. Secondly, even if the Proposition was wrong as a finding of fact, this would not demonstrate a misapprehension by the Authority of s.473DD, such as would result in a jurisdictional error unless it was unreasonable. Whether the information relating to the siblings’ protection claims was probative was a question the Authority was entitled to ask itself, and answer, within its jurisdiction.

10. I also accept that the Authority was entitled to rely upon the Proposition in assessing whether there were exceptional circumstances justifying consideration of the new information, and it did not misconstrue s.473DD in doing so.

Ground 2 – did the Authority fail to deal with an integer of the applicant’s claims in relation to surveillance?

1. The Authority considered whether the applicant faced a real chance of serious harm as a Tamil from the Northern Province.  The applicant provided a large amount of country information which indicated continuing problems for Tamils in Sri Lanka.  The Authority stated at [27]:

   The applicant provided numerous news articles from 2016/2017 about Sri Lankan authorities abducting, torturing and killing Tamils.  These news articles are consistent with local and international organisations … (DFAT) assesses that while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.

2. The applicant’s complaint is that the Authority, after accepting that “surveillance of Tamils in the north and east continues” and keeping in mind that the applicant is from the north of Sri Lanka, did not address whether the frequency and nature of the surveillance give rise to a real chance of serious harm for Tamils. Specifically:

   a)the Authority at [28] addresses a matter, leading to a conclusion at the end of [28] that the Authority does “not accept that the applicant … would be imputed with anti-government sentiments or pro LTTE behaviours”. However, this finding is said not to dispose of the Authority’s finding concerning surveillance at [27] because, based on the country information which the Authority accepts, the surveillance is of Tamils generally, and is not limited to Tamils “imputed with anti-government sentiments”; and

   b)the Authority at [29] addresses a matter, leading to a conclusion at the end of [29] that “the applicant was of no interest to the Sri Lankan authorities when he left Sri Lanka in 2012 …”.  Again, this finding is said not to dispose of the Authority’s finding concerning surveillance at [27] because the surveillance is of Tamils generally, and is not limited to Tamils “of interest to the Sri Lankan authorities”.

3. The Authority at [30] concludes that, “I am not satisfied that the applicant’s profile would give rise to any adverse interest in him by the Sri Lankan authorities …”.  Again, this finding is said not to dispose of the Authority’s finding concerning surveillance at [27] because the surveillance is of Tamils generally, and is not limited to Tamils in whom the Sri Lankan authorities have an adverse interest.

4. In my view, the Authority did not overlook any element or integer of the applicant’s claims.  First, the Authority’s reasons need to be read as a whole, including the finding at [38][22] that any surveillance experienced by the applicant would not amount to serious harm.  Secondly, and as submitted by the Minister, the Authority at [27] cited “numerous news articles” from 2016 and 2017 about Sri Lankan authorities abducting, torturing and killing Tamils. It further referred to a Department of Foreign Affairs and Trade report that indicated that monitoring of Tamils in day-to-day life had decreased significantly under the current government, but that surveillance of Tamils in the north and east continued, particularly those associated with politically sensitive issues.

   [22] CB 250

1. The Authority’s reference to the content of country information about mistreatment generally of Tamils needs to be read in the context of its reasons at [25]-[30]. The Authority in these paragraphs was addressing the applicant’s claim that he was at risk of harm as a Tamil from the Northern Province who had real or perceived links to the LTTE. The Authority in this connection at [25] accepted that the applicant was a Tamil from an area formerly controlled by the LTTE and that his brother was a member of the LTTE until his death in 1995/1996. The Authority further at [26] referenced a UK Home Office Report that stated, relevantly, that a person being of Tamil ethnicity would not in itself warrant international protection and neither would a person who had merely been a member of the LTTE in the past.

2. Read in context, the information referred to at [27] did not substantiate the applicant’s risk of harm for being a Tamil from the Northern Province who had real or imputed connections to the LTTE. The Authority addressed that claim in its findings at [28]-[30]. The applicant did not claim, expressly or by inference, that he was at risk of harm due to surveillance activities of the state directed at all Tamils. The Authority did not need to consider such a claim.

Ground 3 – did the Authority fail to consider the risks of harm confronting the applicant cumulatively?

1. The Authority found at [33]-[34]:

   … I accept that the applicant may face a low risk of official and societal discrimination because he is a Catholic if he were to relocate to an area where there was a Buddhist majority.  However, I am not satisfied that such treatment would amount to serious harm …

   Given the profile of the population in the Northern Province, I find that the applicant’s chances of facing any official or societal discrimination because he is a Catholic in that area to be more remote.

2. Relevantly, the Authority did not find the chance of the applicant (who is from the Northern Province) facing any official or societal discrimination because he is a Catholic to be “remote”, but instead found that the chance of him facing such discrimination was “more remote” than the “low risk” chance in areas with a Buddhist majority.  Such a chance is said to remain greater than a remote chance.

3. The Authority found at [38] in respect of the applicant’s claim to fear harm as a failed asylum seeker returning to Sri Lanka:

   I accept that the applicant may be subject to some surveillance and possibly social stigma from his community upon his return to Sri Lanka.  However, I am not satisfied that, in the context of his overall profile, any surveillance or social stigma would amount to serious harm.

4. The applicant contends that it follows that the Authority made two separate findings that he faced a low chance of harm if he returns to Sri Lanka, one at [33]-[34] because he is a Catholic and the other at [38] because he is a failed asylum seeker. 

5. In the circumstances, it is said to have been necessary for the Authority to consider the applicant’s claims cumulatively, since the addition of two low risks of harm which was less than serious harm may add to a real chance of serious harm.

6. However, the Authority’s reasons for decision are said to indicate that, in relation to the applicant’s claims under the Refugees Convention limb in s.36 of the Migration Act, the Authority did not deal with the claims cumulatively. This is said to be a jurisdictional error.

7. The applicant seeks to draw support from the Full Federal Court in Minister for Immigration v DDK16[23] where the Court at [33] reproduced but did not accept the following propositions of the Minister in that case:

   Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration & Citizenship [2015] FCA 1151 at [47]].

   The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration & Citizenship[2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398 at [21]].

   [23] [2017] FCAFC 188

8. I accept the Minister’s submission first, that the Authority’s findings at [33]-[34] address different things. The Authority’s conclusion at [33] was to reject entirely that the applicant had protection obligations for reason of being Catholic, and that was because (notwithstanding the “low risk” of official or societal discrimination, described by the Authority at [32]) the Authority did not consider that the treatment the applicant might receive amounted to serious harm. The finding at [34] addressed a different question, which was the likelihood of the applicant encountering the discrimination found by the Authority to exist, but by reference to the Northern Province.

9. To that end, the Authority did not need to revisit the risk of harm the applicant might face as a Catholic, because the claim had been entirely disposed of at [33].

10. The applicant also challenges the Authority’s complementary protection findings at [44]. The Authority stated that it had “considered the applicant’s claims individually and cumulatively”. The Authority then goes on to reiterate, for the purposes of its consideration of complementary protection, its findings in relation to the applicant’s claims.

11. The applicant contends that the express reference by the Authority to findings concerning harm the applicant might face for being Catholic[24] confirms that it was not part of the Authority’s cumulative consideration referred to at [44]. I accept the Minister’s submission that the Authority’s reasons should not be read this way, and that to do so is to appraise the decision record with an eye for error.[25] The better reading of [44]-[46] is that the cumulative consideration referred to at [44] encompasses all of the matters referred to in [45]-[46].

    [24] at [46]

    [25] Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Conclusion

1. The applicant has failed to establish 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.

2. The parties agreed at the trial that in the event the Minister were successful, the applicant would accept an order for costs in accordance with the Court scale.  The relevant scale amount is $7,467.  I will order that the applicant pay the first respondent’s costs in accordance with the scale.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         5 July 2019