DVI16 v Minister for Immigration

[2017] FCCA 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2016

Catchwords:
MIGRATION – Immigration Assessment Authority – Application for a Safe Haven Enterprise Visa – explanation for the delay is not satisfactory – the Authority complied with its statutory obligations in the conduct of the review – no jurisdictional error identified – application for an extension of time under s.477 dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 476, 477

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: DVI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3531 of 2016

Judgment of: Judge Street

Hearing date: 23 August 2017

Date of Last Submission: 23 August 2017

Delivered at: Sydney

Delivered on: 23 August 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S Zarucki
Clayton Utz

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3531 of 2016

DVI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY 1

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 Migration Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA on 26 October 2016 affirming a decision of the delegate not to grant the applicant a protection 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 26 August 2012 as an unauthorised maritime arrival. 

3. The applicant claimed to be a Tamil from a particular district in the Eastern Province and claimed to fear harm from the army and police who view him as a target as a wealthy goldsmith, and also by reason of having an imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) profile. On 8 September 2016, the delegate found that the applicant failed to meet the criteria for the grant of a visa. 

The Authority’s decision  

1. On 14 September 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter identified that there were limited circumstances in which the Authority could receive and consider new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The Authority in its decision made on 26 October 2016, identified the applicant’s visa application background. The Authority also identified having had regard to the material referred under s.473CB of the Migration Act, and noted that no further information had been provided or was received by the Authority. The Authority summarised the applicant’s claims and evidence and set out the relevant law.

Consideration of Refugee convention criteria

1. In relation to the applicant’s claims, the Authority found the account of the applicant’s circumstances of his brother’s detention to be unconvincing. The Authority found it was implausible that the applicant would be unaware of the offence for which his brother was convicted. The Authority accepted the applicant’s brother was detained for six years, but was not satisfied the applicant’s brother was detained because of any real or perceived link to the LTTE as claimed.

2. The Authority found that there was not a real chance of the applicant being harmed by reason of the earlier detention of both his brothers.  The Authority referred to the alleged incident in 2012 and was not satisfied that the attack and robbery was linked to the imputed LTTE profile as claimed.

3. The Authority was not satisfied there is a real chance of serious harm arising for the applicant from being a Tamil, or from being from the Eastern Province.

4. The Authority expressed concerns in relation to the applicant’s claim that the attack and robbery in March 2012 was one for which the army and police were responsible. The Authority found it implausible that the applicant would take the risk of being alone at night in the dark with a substantial amount of gold. The Authority found the chance of the applicant being robbed or attacked by the army or police to be remote and was not satisfied that the applicant’s fear in that regard was well-founded.

5. The Authority did not accept that the army or police were responsible for the 2012 attack and robbery, and the Authority did not accept the applicant did not report this to the police as he was scared the police were involved. The Authority found the likelihood of the applicant being attacked or robbed to be remote. The Authority was not satisfied there is a real chance of serious harm arising to the applicant on the basis of being perceived as wealthy.

6. The Authority made reference to the applicant having lived in Colombo intermittently and having also lived and worked in his home village.  The Authority made reference to the applicant’s concerns of demand for money and found this does not amount to a threat to life or liberty, or significant physical harassment or ill-treatment or treatment that may otherwise be considered serious harm. The Authority found this would not amount to economic hardship that threatens the applicant’s ability to subsist or earn a livelihood. The Authority did not accept that the demands for money amount to serious harm, and found this falls short of the level of serious harm required to be considered as persecution.

7. The Authority expressed concerns in relation to the applicant’s claim that he is of ongoing interest since he departed Sri Lanka and found that there were inconsistencies in the applicant’s account of people visiting his family home. The Authority was not satisfied that the applicant’s wife had received a threatening telephone call as claimed.

8. The Authority made reference to the applicant’s concern about a lady in the neighbouring area being attacked and killed. The Authority noted the applicant did not know the person and there is no indication that the applicant has any connection to the person that would indicate he could be harmed. The Authority was not satisfied there is a real chance of harm to the applicant on this basis. 

9. The Authority accepted the applicant departed Sri Lanka illegally, and that on return he would be subject to the Immigrants and Emigrants Act. The Authority found it was likely that on return the applicant will be charged under the Immigrants and Emigrants Act, fined and released, or should he plead not guilty, he will be released on his personal surety.

10. The Authority found there was no real chance that the applicant will be given a custodial sentence. The Authority was not satisfied that the imposition of a fine would constitute serious harm and if he were to have difficulty meeting the cost of fine, there is scope to request that the fine be paid by instalment.

11. The Authority found that the applicant would not be subject to mistreatment on arrival back in Sri Lanka that would extend beyond routine assessing, or which would amount to serious harm. The Authority was not satisfied there is a real chance the applicant will be subjected to torture or other serious harm during the brief period of detention required to complete the process of investigation, or while on remand.

12. The Authority accepted that the applicant would be detained and that the period of detention could extend up to four days until his matter is presented to a magistrate for bail consideration. The Authority found that this does not amount to the level of a threat to life or liberty, or to a significant physical harassment or ill-treatment, or otherwise amount to serious harm.

13. The Authority noted that the Immigrants and Emigrants Act applies to all arrivals and that the procedures under which the applicant would be subject are applied in an non-discriminatory basis under a law of general application, and therefore, do not amount to persecution for the purpose of s.5H(1) and s.5J(1) of the Migration Act.

14. The Authority was not satisfied there is a real chance the applicant would face any harm as a returning failed asylum seeker.  The Authority found the applicant is not at risk or will experience serious harm in Sri Lanka either now or in the reasonably foreseeable future and was not satisfied the applicant had a well-founded fear of persecution.

15. The Authority found that the applicant failed to meet the requirements of the definition of refugee in s.5H(1) of the Migration Act and found that the applicant failed to meet the criteria under s.36(2)(a) of the Migration Act.

Consideration of complementary protection criteria

1. The Authority was not satisfied the poor prison conditions to which the applicant may be subject constitute significant harm as defined under s.36(2A) and s.5 of the Migration Act. The Authority was not satisfied that the applicant will face a real risk of significant harm during any possible brief period in detention.

2. The Authority was not satisfied that questioning, or the imposition of a fine amounts to significant harm under s.36(2A) and s.5 of the Migration Act. The Authority found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed 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 Migration Act and affirmed the decision under review.

Proceedings before this Court

Application for an extension of time

1. The application was filed in this Court on 13 December 2016, 13 days outside the 35 day period provided under s.477 of the Migration Act.

2. At the commencement of the hearing, the Court explained to the applicant that this was a hearing to determine whether time should be extended under s.477 of the Migration Act. The Court explained to the applicant that in summary there were three material issues.

3. Firstly, the adequacy of the applicant’s explanation for the delay in commencing the proceedings, secondly, the prejudice, if any, suffered by the first respondent and the Court noted that no prejudice was alleged in the present case, and thirdly, the merits of the application before the Court.

4. The Court explained in relation to the merits that the Court was considering whether the applicant had a reasonable argument that the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the applicant had a reasonable argument that the Authority’s decision was unlawful or unfair. 

5. The Court explained that if satisfied that the applicant had an adequate explanation for the delay and a reasonable argument that the Authority’s decision was unlawful or unfair, time would be extended and the matter would be fixed for hearing on another occasion.

6. The Court explained that if not satisfied that the applicant had a satisfactory explanation for the delay and a reasonable argument that the Authority’s decision was unlawful or unfair, the application for an extension of time would be dismissed with costs.

7. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

8. The grounds in the application are as follows:- 

   1. That the decision of the second respondent, the Immigration Assessment Authority was affected by legal error.

   2. More details will be provided by my legal representative.

Explanation for the delay

1. The applicant’s explanation for the delay was due to his lack of his ability to read English, as even though the applicant said he showed the documents he received to a friend, he did not realise he had to lodge an application until he saw a lawyer. The delay in the present case is only 13 days. The first respondent submits that the explanation for the delay is not satisfactory. There is substance in that submission however, the material issue in the present case are the merits of the application.

Consideration

The grounds

1. The unparticularised ground 1 fails to identify any arguable jurisdictional error.

2. Ground 2 refers to further details which have not been provided. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Authority complied with its obligations of procedural fairness in giving the applicant an opportunity to put on new information and to put submissions. The adverse findings by the Authority are open on the material before the Authority and cannot be said to be illogical, irrational or unreasonable.

The Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that he came to Australia to protect his life and he came to this country rather than go to some other country. The applicant also sought to explain that he had scars and injuries and a poor memory. The applicant also sought to explain that he did not have an education and could not advance any legal argument. 

2. In substance, the applicant’s submissions are an invitation to this Court to engage in impermissible merits review. This Court does not have the power to review the merits. This Court does not have power to decide the matter on compassionate grounds. 

Conclusion

1. I have taken into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118. No arguable case of jurisdictional error has been made out by the applicant for the above reasons.

2. In relation to the application for an extension of time, I am not satisfied that there is a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice. The Court is not satisfied that it is necessary to extend time under s.477 of the Migration Act in the interests of the administration of justice.

3. The application for an extension of time is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  6 September 2017