DUV17 v Minister for Immigration

[2018] FCCA 757

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUV17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 757

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – whether the Authority failed to exercise its statutory discretion or discretion under s 473DC of the Act – whether the Authority failed to consider the applicant’s claim for complementary protection – no jurisdiction error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5, 5H, 5(J), 36, 473CB, 473DC, 473DE, 476.

Applicant: DUV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGATION ASSESSMENT AUTHORITY

File Number: SYG 2663 of 2017

Judgment of: Judge Street

Hearing date: 27 March 2018

Date of Last Submission: 27 March 2018

Delivered at: Sydney

Delivered on: 27 March 2018

REPRESENTATION

Counsel for the Applicant: Mr M Kalyk

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 14 March 2018.

2. The amended application is dismissed.

3. The applicant to pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2663 of 2017

DUV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 20 July 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 11 September 2012 as an unauthorised maritime arrival. The applicant was found to be a Tamil from Jaffna, Sri Lanka. On 22 January 2016, the applicant lodged an application for a Safe Haven Enterprise visa, subclass 790.

3. The applicant claimed to fear harm by reasoning of being imputed as a Liberation Tigers of Tamil Eelam (“LTTE”) supporter after he found hidden LTTE weapons. The applicant also claimed to fear harm from the Sri Lankan authorities on return.

The delegate’s decision

1. On 28 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. The delegate expressly referred to material that was provided by the applicant, including a letter from the Human Rights Commission of Sri Lanka dated 7 May 2013. The delegate made a finding that the documents that had been provided were not ones, including the letter from the Human Rights Commission of Sri Lanka, that the delegate found had been fraudulently altered or are bogus documents in accordance with s 5(1) of the Act. Such a finding would have given rise to other consequences.

2. The delegate identified that the applicant alleged he started facing problems with the Sri Lankan authorities in May/June 2012 and that the applicant alleged he began having problems with the authorities in 2012 when the Criminal Investigation Division (“CID”) were informed by people in his village that he had found weapons.

3. The delegate made adverse findings in relation to part of the applicant’s claims. The delegate expressly rejected the applicant’s claim that in 2009 he found a cache of LTTE weapons while digging for rats. The delegate also rejected the applicant’s claim that in 2012 he began facing issues from the Sri Lankan authorities because of the cache of weapons he found. The delegate also rejected the applicant’s claim that he was beaten and interrogated by members of the CID and accused of hiding weapons for the LTTE and for supporting the LTTE. The delegate also rejected that the applicant had been imputed by the Sri Lankan authorities to support and/or be associated with the LTTE. The delegate also rejected the claim that the applicant was a person of interest to the Sri Lankan authorities when he left the country in September 2012.

4. The Human Rights Commission of Sri Lanka letter was a document purportedly headed “Complaint” with a particular number and was dated 7 May 2013 and was in English. The letter asserted that the applicant underwent life threats during his living in Sri Lanka and that the applicant had informed the CID when he found a hatch of weapons being hidden in his garden. It is apparent that the delegate’s finding rejected that assertion by the applicant, and to that extent, did not accept the veracity or credibility of the letter dated 7 May 2013. The letter also alleged that the CID came to him again and questioned him as some more weapons had been hidden there. The applicant claimed the CID asked questions and that they launched a life threat to him. Following that incident, the applicant left the country on 21 August 2012 to save his soul. The adverse findings by the delegate make clear that the delegate rejected the substance of the content of the letter.

The applicant’s interview with the delegate 9 May 2016

1. Tendered before the Court was the interview that occurred with the delegate with the benefit of the presence of the applicant’s representative on 9 May 2016. The applicant’s solicitor was present during the course of the interview. In the course of the interview, reference was made to documents produced by the applicant. In particular in relation to the Human Rights Commission letter, a question was asked as to how this document was obtained in English and the response by the applicant was it was issued by the government. The applicant stated that the birth certificate was also issued by that particular department.

2. The officer in the interview asked:

   When did you get this document?

   And the applicant responded:

   Yes, probably six weeks ago.

   The officer then asked:

   How were you able to get this document?

   And the applicant responded:

   My wife.

   The officer then asked:

   Okay, so your wife got the certificate for you?

   The applicant responded:

   My brother-in-law and my wife together, they went.

   The officer then asked:

   Do they usually issue these in English, or is that a specific request?

   The applicant responded:

   Okay, okay, so because I have got a copy already in Tamil, so I requested when I was talking to my wife I asked her specifically to get this certificate translated in English from the department.

3. The certificate, in that regard, was dated 1 January 2013. Reference was then made to the obtaining of a marriage certificate, and a question was then asked by the officer:

   So are these, um, the originals of these documents?

   The applicant responded yes, or words to the effect yes.

4. The officer then asked the applicant:

   Okay, and um, what was the purpose of getting this document?

5. The applicant responded:

   Okay so this is the evidence for just saying that I lived in that prelage.

6. On the material before the Court, that appears to be a reference to the Human Rights Commission letter of 7 May 2013. The officer asked:

   And, what do you need this for?

   And the applicant responded:

   Okay so this is just another evidence that uh, like on top of other things that I am a Sri Lankan, I lived in this area

7. The delegate then referred to the fact that the particular documents were obtained after the applicant left Sri Lanka and the applicant was asked:

   Did your wife also get this document?

8. The applicant responded yes.

9. The officer then identifies the document as being from the Human Rights Commission of Sri Lanka, and asks:

   Was this also a document that your wife obtained?

   And the applicant responded:

   Yes.

   The officer then asked:

   And why did she get this document for?

   And the applicant responded:

   Okay so, yeah, this letter is just to confirm, like yeah um, I had problems and, uh, difficulties with Sri Lankan army while I was in Sri Lanka.

   The officer asked:

   What did your wife need to do to get this document?

   And the response by the applicant was:

   Okay so she went to uh, um, this office like, a Human um, Human Rights Commission office and, like, yeah, she has put complaint, saying that My husband has left Sri Lanka because he, uh, because of the fear of Sri Lankan army and he couldn’t, uh, have a safe life there. So that’s why he has left for Australia. Uhh, and explained that to them and then uh, got this letter.

   The officer then asked:

   Was it safe for her to tell these people that you had left for Australia?

   And the applicant responded:

   So this is also like a part of the government office.

   The applicant was then asked:

   So, what I mean, was it safe for your wife to tell the government that you had left Sri Lanka for Australia, for these reasons?

   The applicant responded:

   Hard to explain. Yeah, I don’t know, like yeah, but uh, but yeah she, I don’t know how she obtained this letter but yeah.

   And the applicant further responded:

   I don’t know.

10. The exchange with the officer in relation to the Human Rights Commission of Sri Lanka letter, on a fair reading, was flagging the issue of the veracity or authenticity of the document.

The Authority’s decision

1. Following the adverse decision of the delegate, the Authority wrote to the applicant on 1 December 2016, identifying that the application for the protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put new information and submissions. No such information was provided and no such submissions were provided to the Authority. Submissions had earlier been provided to the delegate.

2. The Authority in its decision identified the background to the application for the visa and referred to having regard to the material referred under s 473CB of the Act. The Authority also took into account more recent country information, consistent with s 473DE(3)(a) of the Act.

3. The Authority summarised the applicant’s claims, and referred to the applicant having provided a copy of a letter from the Human Rights Commission of Sri Lanka dated 7 May 2013, noting that his wife had lodged a complaint on 3 May 2013. The Authority noted that the applicant feared that he will be harmed on return to Sri Lanka because he is a Tamil suspected of hiding weapons for the LTTE, and will be imputed as being an LTTE supported because he failed to report to the army camp as instructed, and because he is a member of the particular social group failed asylum seekers. The Authority referred to the applicant’s representative’s submissions at the Safe Haven Enterprise visa interview that the applicant only speaks Tamil and may be harmed and experience lengthy detention if he cannot respond to questioning.

4. The Authority identified the relevant law. The Authority noted that the applicant contended he did not advance claims regarding LTTE training and feeding LTTE members in his Safe Haven Enterprise visa application, as he was scared to do so. The Authority referred to the written statement provided with the Safe Haven visa application in 2013, which was completed with the assistance of a legal representative. The Authority had difficulty accepting that the applicant did not advance these claims in the Safe Haven Enterprise visa application, noting that he had the benefit of legal assistance at the time.

5. The Authority referred that prior to 2009, the LTTE controlled areas of the north of Sri Lanka but that this did not include the majority of the Jaffna peninsula. The Authority made reference referred to the fact that as the LTTE was not in control of the Jaffna Peninsula where the applicant lived, the Authority considered it implausible that there were LTTE members in the vicinity of the applicant’s home. The Authority also noted that the applicant lived close to an army base, which was approximately one kilometre or less in relation to where the alleged weapons were located. The Authority considered it implausible that any LTTE members would risk detection by seeking food from a property near an army camp, despite the house being an isolated one. The Authority did not accept the applicant fed LTTE members on a regular basis until 2006.

6. The Authority took into account the variation in the applicant’s accounts of the discovery of weapons and noted there was inconsistency in the applicant’s account about opening the barrel, and who dug up the weapons, and whether he saw rifles or also grenades and bombs. The Authority was however willing to give the applicant the benefit of the doubt and accept the applicant located weapons near his home and that he alerted the army to this discovery. The Authority did not accept as plausible that in 2012, his involvement in the discovery of weapons came to the attention of the CID and led to adverse attention from the army as claimed.

7. The Authority made reference to the applicant’s assertion that jealous villagers had informed the authorities, and that country information supports the use of informers. The Authority provided four detailed reasons in rejecting the applicant’s account of interest in him in 2012 by the authorities as being plausible. Those four adverse reasons have not been the subject of any criticism in relation to the logic of the adverse finding. The Authority did not accept that the applicant came to the adverse attention of the authorities in 2012 because he was imputed with an LTTE profile and suspected of hiding LTTE weapons or that he was required to report to the army in June 2012.

8. The Authority then made reference to the Human Rights Commission letter submitted by the applicant in support of his claims. The Authority made reference to the Human Rights Commission having jurisdiction to inquire into human rights violations and that after an allegation is established, they can make recommendations for financial compensation to the victim or refer the case for disciplinary action or prosecution.

9. The Authority, in having regard to the content of the letter, noted the language and that it recites the applicant’s circumstances and contains no information of any process to verify and investigate the claimed human rights violations. It was in those circumstances that the Authority was not persuaded that this is a genuinely issued document. The Authority also noted that the letter states that the complaint was lodged on 3 May 2013, only four days before the letter was issued, yet the writer is able to “certify the facts above are true”. The Authority did not accept that within four days the Human Rights Commission had investigated this case and come to a conclusion, noting that the US Department of State advised that in 2015 the Human Rights Commission of Sri Lanka suffered a lack of staffing. It was in these circumstances the Authority did not accept that the document was issued by the Human Rights Commission and gave it no weight.

10. The Authority did not accept the applicant was of any adverse interest to the authorities at the time he left Sri Lanka and did not accept the authorities ever visited his wife to ask about his whereabouts. The Authority referred to the US State Department continuing to report human right abuses in 2015, noting cases of harassment, arbitrary arrest, detention and torture of civil society activists, journalists and LTTE sympathisers. The Authority also made reference to noting country information on human rights abuses and information referred by the representative in a post-interview submission to the delegate, and found overall that the reports of harm relate to people with LTTE connections who were otherwise Tamil separatist activists. That was a finding by the Authority based on country information. The Authority accepted that the reports of Sri Lankans, including Tamils, being abducted and of ongoing human rights violations in Sri Lanka, including the use of torture against suspects. The Authority found the indications are that those involved had links with the LTTE.

11. The Authority found the applicant does not have a real or imputed LTTE profile and has not been involved in Tamil separatist activities. The Authority referred to the applicant only speaking Tamil but was not satisfied there was a real chance he would face harm on this basis on return to Sri Lanka.

12. The Authority accepted that the applicant had departed Sri Lanka illegally and had sought asylum. The Authority found that the applicant may be detained and questioned at the airport for up to 24 hours, be fined for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) and may face a period of time in prison. The Authority was satisfied the applicant would only face a brief period of detention. The Authority did not consider the brief period of detention would constitute the necessary level of threat to the life or liberty, or to significant physical harassment or ill treatment under s 5J(5) of the Act or otherwise amount to serious harm of the applicant. It was in those circumstances the Authority found that any likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed or the imposition of fine, did not constitute serious harm under s 5J(5) of the Act.

13. The Authority found the Immigrants and Emigrants Act 1949 (Sri Lanka) was a law that was not discriminatory in its terms and found that the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act 1949 (Sri Lanka) would be the result of a law of general application and does not amount to persecution for the purpose of s 5H(1) and s 5J(1) of the Act.

14. The Authority, having considered the applicant’s claims individually and cumulatively on the basis of being a Tamil from Jaffna who departed Sri Lanka illegally, as a member of a particular social group of failed asylum seekers, and for reasons of his LTTE training in 1998 or 2000, and because he found weapons in 2009, and because he cannot speak Sinhala, was satisfied that there was not a real chance that the applicant will experience harm in the foreseeable future in Sri Lanka.

15. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

16. The Authority then set out the relevant law in relation to complementary protection. The Authority made reference to the finding that the delegate made that there is not a real chance that the applicant faces harm on the basis of being a Tamil from Jaffna, as a member of a particular social group of failed asylum seekers, and for reason of his LTTE training in 1998 or 2000, or because he found weapons in 2009, or because he cannot speak Sinhalese. The Authority was satisfied that there was not a real risk that the applicant would face significant harm for these reasons.

17. The Authority found the applicant is not a person of interest to the Sri Lankan authorities. The Authority was not satisfied there is a real risk the applicant would be subject to mistreatment during any possible brief period in detention on return to Sri Lanka.

18. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. The grounds in the amended application are as follows:

   Ground 1

   The Authority’s failure to exercise its statutory discretion or alternatively to consider its discretion under s 473DC(1) and/or (3) of the Act was legally unreasonable in the circumstances, or alternatively the Authority failed to afford the applicant procedural fairness.

   Particulars

   1. The applicant could not have known:

   a. that the Authority intended to make its decision on an issue different to that of the Delegate;

   b. that the genuineness of the letter from the Sri Lankan Human Rights Commission (HRC) was in issue and/or

   c. that the Authority would find the applicant had relied on a forged or fraudulent document without providing him with an opportunity to comment on any such allegation.

   2. The Delegate’s Decision specifically referred to the HRC letter and considered there to be no evidence to indicate the documents had been fraudulently altered or bogus: BD 343.

   3. The Authority concluded that “the HRC letter [was] submitted by the applicant in support of his claims” but that the Authority was “not persuaded that [the HRC letter] is a genuinely issued document” and did “not accept that this document was issued by the HRC and [gave] it no weight”: Authority’s Decision, [14].

   4. In accordance with the Authority’s Practice Direction 1 (October 2016) entitled Practice Direction for Applicants, Representatives and Authorised Recipients (Practice Direction), for purposes of the Authority’s review the applicant may have provided a written submission on why the applicant disagreed with the Delegate’s Decision (paragraph 20).

   5. The Authority did not exercise and did not consider whether to exercise its power to seek information under s 473DC(1) of the Act or to invite any person such as the applicant to give new information under s 473DC(3) of the Act.

   6. The failure to, or alternatively the failure to consider whether to:

   a. make any inquiries to verify the authenticity of the document, whether by contacting the HRC on the number provided on the HRC letter, conducting searches on the apparent author of the document, or taking any other step; and/or

   b. inform the applicant that the Authority would make a determination on a matter different to that of the Delegate or to the effect that the HRC letter was not genuine or that the applicant had relied on a forged or fraudulent document, and to provide the applicant with an opportunity to comment, lacked an evident and intelligible justification or failed to afford the applicant procedural fairness.

   Ground 2

   The Authority constructively failed to assess the applicant’s claim for complementary protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) and the International Covenant on Civil and Political Rights (ICCPR) by failing to assess the applicant’s claim outside his claim to protection from a risk of harm due to imputed links with the LTTE.

   Particulars

   1. The Authority found that:

   a. the country information on Sri Lanka indicated that while there was harm reportedly being suffered in Sri Lanka, “the indications are that those involved had links with the LTTE” (Authority’s Decision, [19]); or alternatively

   b. the majority of harm reportedly being suffered in Sri Lanka concerned those with links to the LTTE.

   2. The Authority appeared to be referring to DFAT Country Information Report Sri Lanka (24 January 2017) at [4.12] – [4.13] or alternatively the sources cited at [19] of its decision.

   3. To the extent that the Authority found in line with particular (a)(i), the sources cited provide no evident or intelligible basis to support the Authority’s finding.

   4. The Authority failed to assess the applicant’s complementary protection claim to protection from a risk of harm outside his claim to protection from a risk of harm due to alleged imputed links with the LTTE.

   Ground 3

   The Authority constructively failed to exercise its jurisdiction to consider the applicant’s claim for complementary protection under the Torture Convention or the ICCPR or, alternatively, by misconstruing or misapplying the test for such a claim.

   Particulars

   1. The applicant’s claim for complementary protection included a claim that he might be beaten or otherwise tortured upon his return to Sri Lanka for any reason.

   2. The Authority dismissed the applicant’s refugee claim on the basis that:

   a. the applicant was not likely to suffer harm on the basis that he was an imputed LTTE supporter (Authority’s Decision, [11] – [19]);

   b. the applicant was not likely to suffer harm on the basis that he only spoke Tamil (Authority’s Decision, [20]);

   c. the applicant was not likely to suffer harm on the basis that he departed Sri Lanka illegally and sought asylum (Authority’s Decision, [21] – [30]; and

   d. the applicant was not likely to suffer harm on any of these bases whether individually or cumulatively (Authority’s Decision, [31]).

   3. The Authority dismissed the applicant’s claim for complementary protection on exactly the same grounds (Authority’s Decision, [35]).

   4. The Authority accepted that there was a real risk the applicant would be detained and investigated upon his arrival in Sri Lanka (Authority’s Decision, [36]).

   5. The Authority:

   a. failed to assess whether the applicant faced a risk of harm for any other reason; and/or

   b. misconstrued or misapplied the test for complementary protection by assessing only harm that the applicant may have suffered “on the basis of” the matters raised in the applicant’s refugee visa application.

Ground 1

1. Mr Kalyk of counsel, referred to the Human Rights Commission letter in his written submissions in support of ground 1. The submission that was advanced in paragraph 24, was that at no stage was the applicant questioned about the authenticity of the Human Rights Commission letter or put on notice that the delegate or Authority were concerned about the genuineness of the letter or were considering making a finding that it was a forged or fraudulent document.

2. The interview before the delegate in which the applicant was represented is to the contrary. That interview shows that the applicant was on notice that the delegate was concerned in relation to the genuineness of the English documents that the applicant was producing. The applicant was represented at that interview by a competent practitioner who approached the questions asked as giving rise to a potential issue of genuineness or authenticity in respect of the document. Further, in light of the findings by the delegate which were inconsistent with the content of the Human Rights Commission letter, it was apparent that the delegate had not accepted the contents of the letter in relation to the applicant’s claims. The adverse findings were directly inconsistent with the assertions in the Human Rights Commission letter. The applicant, in those circumstances, was on notice in relation to the grounds of the delegate’s findings and the applicant chose not to put on any submissions and/or new information.

3. The proposition that was advanced in relation to ground 1 was that the Authority could make an inquiry of Google to identify the existence of the person who purportedly signed the letter. Such a step does not reflect the taking of steps in respect of an easily ascertainably critical fact or material fact. Whether or not the person who purportedly signed the letter existed, did not identify whether the letter was genuine or not. There was no easily ascertainable fact identified in respect of which the Authority could make inquiry.

4. It was not legally unreasonable for the Authority not to invite the applicant to comment on the genuineness of the Human Rights Commission letter. It was apparent that it was an issue from the delegate’s reasons and it was apparent that it was a matter in respect of which its genuineness, was in issue as a result of the questions asked at the time of the interview. No submission was put to the Authority to exercise a power under s 473DC(3) of the Act. It was not legally unreasonable in the circumstances of the present case for the Authority to proceed to make findings in relation to the genuineness of the HCR letter. The Authority was not bound, as a matter of procedural fairness, to raise with the applicant the adverse finding in relation to the genuineness of the Human Rights Commission letter.

5. The circumstances of the present case were not ones which required the Authority to expressly consider the exercise of the power under s 473DC(3) of the Act where no request had been raised to do so and where the issue of the genuineness of the letter from Human Rights Commission was apparent from the terms of the adverse findings by the delegate being inconsistent with the letter, as well as being an apparent issue from the terms of the interview at which the applicant was legally represented. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the applicant advances arguments in respect of claims that were not advanced by the applicant. Mr Kalyk, on behalf of the applicant, submitted that the Authority should have, in relation to complementary protection, considered the applicant’s claim to fear a risk of harm outside his claim due to imputed links with the LTTE. No such claim was advanced by the applicant. A claim not advanced by the applicant cannot give rise to any jurisdictional error. The Authority was entitled to take into account country information and the adverse findings cannot be said to lack any evidential and intelligible justification. The reasons given by the Authority referred to above eminently justified the Authority’s adverse findings. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Kalyk submitted that the Authority had failed to consider the applicant’s claim in relation to complementary protection in respect of the Torture Convention. My Kalyk submitted that the Authority had confined detention to harm on the basis of being an imputed LTTE supporter and the applicant’s limited language and his illegal departure in seeking asylum, but that the Authority then failed to assess whether the applicant faced the risk of harm for any other reason. No such claim was advanced before the Authority.

2. On the face of the Authority’s reasons, the Authority correctly identified the relevant law in relation to complementary protection. There is no substance in the proposition that the Authority misconstrued or misapplied the test in relation to complementary protection. The Authority was not required to assess a claim that was not advanced. No jurisdictional error as alleged in ground 3 is made out.

3. The amended application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 April 2018