DUR16 v Minister for Immigration
[2018] FCCA 3030
•25 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUR16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3030 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority erred in failing to consider all claims made by the applicant – whether the Immigration Assessment Authority erred in the exercise of the discretion under s.473GB of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473GB, 473DD, 473EA |
| Cases cited: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | DUR16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSSESSMENT AUTHORITY |
| File Number: | SYG 3510 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 25 October 2018 |
| Date of Last Submission: | 25 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Uche Okereke-Fisher |
| Solicitors for the Respondents: | Ms Katherine Hooper (Minter Ellison) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3510 of 2016
| DUR16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of a decision of the Immigration Assessment Authority (“the Authority”) dated 17 November 2016 which affirmed a decision of a delegate of the first respondent (“The Delegate”) not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”) conducted in accordance with Part 7AA of the Migration Act1958 (Cth) (“the Act”).
The factual background of the matter is accurately summarised by the first respondent in written submissions as follows:
“B FACTUAL BACKGROUND
2. The applicant is a male citizen of Sri Lanka. He arrived in Australia on 20 September 2012. On 1 April 2016, the applicant lodged an application for a SHEV: CB 1. The applicant claimed to fear harm by the Sri Lankan authorities because of his imputed profile in support of the Liberation Tigers of Tamil Eelam (LTTE), and to fear extortion by the Eelam People's Democratic Party (EPDP).
3. On 21 September 2016, a delegate of the first respondent refused the applicant's SHEV application: CB 158. The delegate's decision was referred for review by the Authority. On 16 October 2016, the Authority received a 'submission' on behalf of the applicant: CB 192.
4. On 17 November 2016, the Authority made its decision, affirming the decision of the first respondent's delegate not to grant the applicant a SHEV: CB 216.
5. The Authority had regard to the material referred to it by the Secretary of the first respondent's Department under section 473CB of the Act, at [3]. The Authority identified the applicant's submission to it, at [4], and in so far as it constituted material in the nature of a submission addressing the delegate's findings, the Authority had regard to it. At [6], the Authority identified certain material provided to it by the applicant which was before the first respondent's delegate at the time of the delegate's decision and found this therefore did not constitute new information. The Authority found that the submission also sought to introduce 'new information', and identified and considered the requirements of section 473DD of the Act, from [5]-[10] of its reasons.
6. The Authority accepted certain aspects of the applicant's claims, which it identified at page 220 of the Court Book. The Authority accepted, at [22], that at the applicant's entry interview the applicant may not have provided a fully detailed account of his experiences. However, at the SHEV interview, the applicant was asked an open question as to the reasons he left Sri Lanka, and the Authority considered that the applicant was provided the opportunity to put forward his reasons for leaving Sri Lanka and his fear of harm, at [23]. The applicant was also asked a number of open questions at the entry interview about his experiences, and a direct question about why he left Sri Lanka. The Authority placed considerable weight on the applicant's omission to mention a claimed bus accident, said to be the event that prompted the applicant's decision to leave Sri Lanka in 2012, at [24]. The applicant's failure to mention this incident at the entry interview, coupled with what the Authority found was contradictory evidence regarding the applicant's inability to raise 10 lakhs, caused the Authority to reject the applicant's claim as to the bus accident, at [26].
7. The Authority found that it had considerable doubt about the applicant's claims concerning the abduction of his sister and threats to his mother, in September/October 2016. The Authority found it implausible that there had been no interest in the applicant for four years and then, in 2016, the Criminal Investigation Division tasked persons to undertake the abduction and threat. The Authority found the applicant's claim to be implausible and that it was fabricated, at [27].
8. The Authority considered that if the applicant was of interest to the authorities on the basis of the activities of his cousins, the authorities had ample opportunity to identify and arrest the applicant during his repeated encounters with the Army. The Authority also noted that the applicant had travelled to Malaysia and returned, in 2011, and did not come to adverse attention. The Authority was not satisfied that the applicant had been imputed with an LTTE profile, either because of his link to his father, or his cousins. The applicant had not otherwise been involved in any activities that would raise an LTTE profile. The Authority found there was not a real chance of harm to the applicant on return to Sri Lanka on this basis, at [37].
9. The Authority found, by reference to independent country information, that there was no indication of ongoing harassment of persons involved with supporting the United National Party (UNP) or the Tamil National Alliance (TNA), and if the applicant were to return to Sri Lanka there was no real chance of any harm to him on the basis of his association with either party, at [40]. The Authority was not satisfied, at [42], that the applicant's fear of serious harm by paramilitary groups was well-founded, including by way of extortion, at [44].
10. The Authority, at [49]-[58], considered the applicant's illegal departure claim and was not satisfied that there was a real chance the applicant would face any harm on the basis of his illegal departure from Sri Lanka, at [59].
11. The Authority found there was no real chance that the applicant faced harm on the basis of being a Tamil, having an imputed LTTE profile or being the family member of LTTE members, being involved in driving for the UNP and the TNA, being extorted and threatened by paramilitary groups or from toxic chemicals injected into LTTE combatants. For the reasons it had given and on the evidence referred to, the Authority was similarly not satisfied that there was a real risk that the applicant would suffer significant harm, at [65]. The Authority gave separate consideration to the applicant's illegal departure claim in the context of the complementary protection criterion, and was not satisfied that he faced a real risk of significant harm, at [66]-[68].”
The applicant was represented in this Court by Ms Okereke-Fisher, of Counsel.
By consent, leave was granted to the applicant to rely on a Further Amended Application in the following terms:
“Ground 2: Jurisdictional Error - The IAA failed to consider (i) the full integers of the Applicant's claims; (ii) substantial evidence and ignored relevant material such that the exercise of power was affected, demonstrating a failure to perform the statutory task cast upon IAA by the Migration Act and a failure to exercise jurisdiction, leading to jurisdictional error.
PARTICULARS
b) In his statement of 13 February 2016, the Applicant expressly stated that the evidence and narratives that preceded his statement [CB 48 – 57] were documentary evidence relevant to his claims “and should be taken as evidence for his claims for protection [CB, 48].
c) In his statement of 16 October 2016, the Applicant provided evidence which suggest that even 6 years after the end of the war, Tamils were being arrested and detained indefinitely under the Prevention of Terrorism Act [CB 195]
d) The Applicant expressly stated that the news articles attached to his statement were “.... relevant to his claims and should be considered as part of mv above claims" – [CB, 61]
Ground Three: Jurisdictional Error - The IAA failed to exercise the discretionary powers conferred on it pursuant to s 473GB(3) within the bounds of reasonableness. Non-disclosure of the existence of the certificate and the factors that influenced the exercise of its discretion under 473GB(3) in circumstances where the IAA had regard to the material as well as reliance on an invalid certificate, undermined the Applicant's participation in the proceeding and was unreasonable leading to an IAA decision that was plainly unjust and lacking an evident and intelligent justification.
PARTICULARS
a. The Certificate was issued on 20 September 2016. It preceded the delegate's decision on 21 September 2016. The Certificate was part of the material before the delegate [CB, 176] and as such was part of the review material.
b. The IAA acknowledged that it had regard to the material referred by the secretary under s 473CB (this included the certificate) – [CB 217]
c. On its face, the 473GB Certificate was invalid in that it did not comply with s 473GB(1)(a). The Certificate did not certify that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest. Also, the certificate did not state the reasons for which disclosure would be contrary to public interest.”
In Ground 2, the applicant contended that claims made by him by way of a statement identifying various reports of harm suffered by Tamils were not considered by the Authority.
The statement, dated 13 February 2016, commences:
“The following information published as documentary evidence on World News Media and Internet by various Organizations which reports to the world of Sri Lankan persecution of Tamils are relevant to the claims stated herein.
The following information is relevant to my claims and should be taken as evidence for my claims for protection. Copies are attached herewith.”
Thereafter follow a number of reports identifying harm to various identified Tamils and other persons the subject of harm in Sri Lanka. At the conclusion of that statement the applicant referred to further news articles that he stated were relevant to his claims and which should be considered “as part of my above claims”. Those news articles ranged in date from 2010 to 2016. The applicant does not suggest that any of the material referred to by him in his statement of 13 February 2016 was related to the applicant himself.
The Delegate found the applicant to be without a profile beyond being simply a Tamil man from a former Liberation Tigers of Tamil Eelam (“LTTE”) controlled area. Based on identified country information before it, the Delegate found that applicant’s fear of harm not to be well founded.
The Authority stated that it had regard to the material referred by the Secretary and it is common ground that that material included the applicant’s statement and information provided in support of his visa application.
In particular, the Authority referred to a submission, dated 16 October 2016, provided to it by the applicant. The Authority stated that in part the submission addressed the Delegate’s decision and findings and to that extent was not new information. The Authority stated that it had regard to those sections of the submission that addressed the delegate’s decision and findings. The Authority noted that the submission also sought to introduce new information, supporting documents and country information. The Authority found that new information to arise from exceptional circumstances which justified the consideration of the information and the Authority stated that it had regard to that information. No complaint is made by the applicant about the manner in which the Authority exercised its discretion under s.473DD of the Act. The Authority identified the applicant’s claims for protection and noted that the applicant feared he would be targeted by the authorities and paramilitary groups as he has been imputed with an LTTE profile, has left Sri Lanka illegally and claimed asylum.
The Authority accepted that the applicant was harassed, threatened and extorted in the past by paramilitary groups. However, the Authority referred to the applicant’s evidence that there had not been any contact by the authorities with his family since his departure in 2012 and that his mother and uncle had remained living at the same addresses and could have been readily located by the authorities if they were interested in inquiring about the applicant. The Authority found that there was no indication that any recent event had triggered interest in the applicant in 2016 and found it implausible that there had been no interest in the applicant for 4 years and then in 2016 that the applicant was threatened by the Criminal Investigation Department (“CID”). The Authority found that the applicant had fabricated that claim to enhance his protection claims.
Nevertheless, the Authority accepted that past harm suffered by the applicant may cause the applicant to fear returning to Sri Lanka. However, the Authority found that since the civil war ended in 2009 with the defeat of the LTTE and since the cessation of hostilities the security situation in Sri Lanka has improved. In particular, the Authority referred to Department of Foreign Affairs and Trade (“DFAT”) and United Nations High Commissioner for Refugees (“UNHCR”) material before it to the effect being of Tamil ethnicity alone did not give rise to protection needs and that Tamils from former LTTE areas are at low risk of being questioned or detained by the authorities simply for being Tamil.
The Authority did accept that there continued to be reports of arbitrary detention and harm by security forces in Sri Lankan, particularly of Tamils. However, DFAT reports reveal that there was a general easing of tensions and improvement after the election of the Sirisena government in 2015 which has led to greater political cooperation, including a more proactive approach to human rights and recognition.
The applicant contends that the Authority had failed to have regard to the material referred to by the applicant in his statement, dated 13 February 2016, a deal of which post-dated the DFAT and UNHCR material or country information referred to by the Authority.
As stated above, none of the material referred to by the applicant was about him personally. Whilst it did refer to individual abuses of Tamils, the Authority stated that it had regard to the material referred by the Secretary, which included all the applicant’s material. However, it was open to the Authority to prefer the information dated December 2015 from DFAT and UNHCR, which are generally regarded as more authoritative that news reports of individual instances of harm when assessing the risk of harm to the applicant if he were returned to Sri Lanka. It is well settled that the country information to which a decision maker has regard and the weight it gives that information is a matter for a decision maker (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
However, as stated above the Authority expressly had regard to new information provided by the applicant including incidents involving family members and a report by Tamilnet dated 11 September 2016 and a report by the Commission for Justice and Peace of the Catholic Diocese of Jaffna dated 14 September 2016.
The applicant does not identify any claim made by him for protection that the Authority did not consider, including any claim made by him said to arise from the material otherwise referred to by him in his statement dated 13 February 2016 and his submission to the Authority dated 16 October 2016.
There was otherwise no claim that squarely arose or arose tolerably clearly on the material before the Authority which it failed to consider (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [45]; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [44] – [52]).
The country information submitted by the applicant was in the nature of evidentiary material to support his application.
The applicant did not ask the Authority to adopt claims made in the evidence as his claims. The country information referred to by the applicant was supportive evidence only.
The applicant has not identified any integer of the applicant’s claims that the Authority failed to consider.
Accordingly, Ground 2 is not made out.
Ground 3 contends that the Authority failed to exercise reasonably its discretion in s.473GB(3) of the Act in respect of a Notification Regarding the Disclosure of Certain Information Covered by s.473GB of the Act (“the Certificate”).
The Certificate, dated 20 September 2016, referred to a document which the Delegate considered should not be disclosed to the applicant or the applicant’s representative because “the document, or any matter contained in the document, or the information that was given to the Minister, or to officer of the Department, in confidence.”
Counsel for the applicant contended that the Authority exercised its discretion under s.473GB of the Act not to disclose the document to the applicant in a legally unreasonable manner. Section 473GB(3) of the Act is in the following terms:
“ (3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.”
Counsel conceded that the Certificate was valid and that the Authority acted unreasonably by not disclosing or expressly acknowledging the existence of the Certificate or stating the reasons that influenced the Authority’s decision to “have regard” to the information.
In referring to the content of the Certificate the Delegate in its decision record stated as follows:
“On 13 July 2016, the UNHCR responded to the Department’s request. UNHCR stated that a search of their databases did not find any record regarding the applicant based on the information proved by the applicant on the consent form.
In review of this information, I consider that the applicant’s claim that he attended the UNCHR office in Kuala Lumpur is plausible however, there is no evidence that he registered with the organisation as claimed.”
To the extent that the information the subject of the Certificate disclosed that the applicant had not registered with the UNHCR office in Kuala Lumpur, is not a matter that is adverse to the applicant.
There is nothing on the face of the Authority’s decision record to suggest that the information the subject of the Certificate was considered by the Authority as adverse to the applicant. There is no reference or mention in the Authority’s decision to the Certificate.
It is common ground that the Certificate was part of the material referred by the Secretary to the Authority. As stated above, the Authority stated that it had regard to the material referred to it under s.473CB of the Act.
In BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 (“BVD17”) Flick, Markovic and Banks-Smith JJ stated at [37] that “the mere fact that the Authority has regard to material the subject to a Certificate without disclosing it to a referred applicants does not of itself comprise a legally unreasonable exercise of power.”
At [41] in BVD17, the Court made clear that the applicant bears the onus of establishing the basis for drawing the inference necessary to make out the alleged jurisdictional error and the onus of establishing the factual foundation from which it can be inferred that the Authority failed to consider the exercise of its discretion under s.473GB(3) of the Act.
Further, it is not necessary for the Authority to state the exercise of a procedural decision in the course of review, particularly where the statutory scheme contemplates that a person may have no knowledge of the existence of a certificate (see BVD17 at [42]; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [45], [49] and [50]). Pursuant to s.473EA of the Act, the Authority is required only to make a written decision that sets out the decision of the Authority on review, sets out the reasons for the decision and records the day and time the statement is made.
I accept the submissions of the first respondent that the applicant has not demonstrated that the Authority failed to consider its exercise of discretion under s.473GB(3) of the Act. The applicant has not discharged his onus of proof either to show that the Authority did not consider its discretion or that its exercise was unreasonable (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] per French CJ and Kiefel J)
The determination of legal unreasonableness is heavily fact dependant and requires careful attention to the evidence (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [84]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [7] and [11]; Singh v Minister for Immigration (2001) 115 FCR 1 at [42]). Moreover, cases of unreasonableness are likely to be rare (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 2013 ALR per Gageler J at [113]).
There is nothing on the face of the Authority’s decision record to suggest that in considering when and how to exercise its discretion under s.473GB(3) of the Act it did so other than in accordance with the law.
Accordingly Ground 2 is not made out.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 25 October 2018
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