DVV17 v Minister for Immigration

[2017] FCCA 3096

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVV17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3096

Catchwords:
MIGRATION – Judicial review – Immigration Assessment Authority decision – citizen of Sri Lanka – Tamil ethnicity – whether grounds properly particularised – whether bias – whether wrong issue identified or wrong question asked – whether certain information was new information – whether jurisdictional error.

Legislation:

Immigrants & Emigrants Act 1949 (Sri Lanka)

Migration Act 1958 (Cth), Pt.7AA, Div.3, ss.5, 5H, 5J, 36(2) and (2A), 65(1), 473CB, 473DA(1), 473DD, 473GA, 473GB, 476

Cases cited:

AFK16 v Minister for Immigration & Border Protection [2016] FCCA 1826
AQN15 v Minister for Immigration & Border Protection [2016] FCA 571
Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 93 ALR 1; (1990) 33 IR 263
BCJ16 v Minister for Immigration & Anor [2017] FCCA 2943

Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
WZATI v Minister for Immigration & Border Protection [2015] FCA 923
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

Applicant:

DVV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 462 of 2017

Judgment of: Judge Antoni Lucev

Hearing date: 8 December 2017

Date of Last Submission: 8 December 2017

Delivered at: Perth

Delivered on: 12 December 2017

REPRESENTATION

For the Applicant: In person (with the assistance of an interpreter)

Counsel for the First Respondent: Mr G Johnson (by telephone from Sydney)

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 462 of 2017

DVV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 28 August 2017 the applicant filed an application (“Judicial Review Application”) under the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the Immigration Assessment IAA (“IAA Decision” and “IAA” respectively) made on 17 August 2017 in which the IAA affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Safe Haven Protection Visa (“Safe Haven Visa”).

2. The IAA Decision is found in the Court Book (“CB”) at 259-272.

Background to the Judicial Review Application

1. The background to the Judicial Review Application is that:

   a)the applicant is a citizen of Sri Lanka who arrived in Australia on 3 October 2012 as an unauthorised maritime arrival: CB 57;

   b)on 1 April 2016, the applicant made an application for a Safe Haven Visa and claimed that:

   i)he was an ethnic Tamil whom feared harm on the basis of an imputed association with the Liberation Tigers of Tamil Eelam (“LTTE”): CB 39;

   ii)he was a young Tamil male from a former LTTE-controlled area, and that he had fled Sri Lanka illegally and claimed asylum: CB 39;

   iii)his brother had voluntarily joined the LTTE, been engaged in combat on two occasions, and had been detained in a rehabilitation camp for two years: CB 79;

   iv)from 2009 to 2010 he and his family were detained at an Internally Displaced Persons (“IDP”) camp, and that during that period he was interrogated by CID officers about his links to the LTTE and was beaten on two occasions: CB 80;

   v)following his leaving the camp he feared harm from the Sri Lankan Army (“SLA”): CB 80; and

   vi)he was stopped at SLA checkpoints, questioned and threatened on occasions after this: CB 81;

   c)the applicant was invited to an interview with the Delegate on 1 July 2016 and made further claims that:

   i)between 2007 and 2009 he worked at an LTTE-owned factory sewing uniforms for the LTTE: CB 205; and

   ii)in 2008 he was forced to undertake weapons training with the LTTE for between 10 to 18 days: CB 205;

   d)on 9 December 2016, the Delegate’s Decision was to refuse to grant the applicant the Safe Haven Visa: CB 198-223;

   e)on 14 December 2016 the applicant’s matter was referred to the IAA: CB 229-230;

   f)on 10 January 2017 the applicant’s migration agent sent written submissions to the IAA: CB 231-251; and

   g)on 17 August 2017 the IAA Decision was made: CB 259-272.

IAA Decision

1. In the IAA Decision, the IAA:

   a)noted the provisions of ss.5H(1) and 5J of the Migration Act with respect to what is a “refugee” and what constitutes a “well-founded fear of persecution”: CB 262 at [10];

   b)accepted the applicant’s claim that he was born in a town in the Northern Province of Sri Lanka, which it noted was an LTTE stronghold during the civil war, and that Sri Lanka was the receiving country for the purposes of the IAA assessment: CB 262 at [12];

   c)accepted that:

   i)the applicant’s brother joined the LTTE in 2006 and, at the end of the war, was sent to a rehabilitation camp;

   ii)the applicant worked for two years from 2007 to 2009 in an LTTE-owned factory as a tailor; and

   iii)the applicant had undergone two weeks of mandatory physical training with the LTTE in 2008: CB 262 at [13]-[15];

   d)observed that the applicant’s work and brief period of mandatory physical training were both consistent with country information concerning the experience for many Tamils who resided in the LTTE-controlled North, but that his work in the factory was low level work and the training was of brief duration, and that his brother had not been the subject of any adverse attention from the authorities since his release in 2010: CB 264 at [25];

   e)by reference to country information, accepted the applicant’s claims that he and his mother were placed in an IDP camp and that he was interrogated by authorities about his brother and was sometimes beaten with a wooden rod: CB 263 at [16]-[17];

   f)accepted the applicant’s claims:

   i)that he obtained a leave pass from the IDP camp: CB 263 at [18]; and

   ii)to have been stopped and questioned at checkpoints, and on one occasion to have been threatened and briefly detained, but noted that the applicant was not physically harmed during any interrogation and that there was no follow-up on threats by the authorities to jail him even though he did not give them any information: CB 263-264 at [21]- [22];

   g)found that the applicant had exaggerated the extent to which he had been interrogated, and did not accept that the applicant departed Sri   Lanka due to the interrogations, as the applicant did not depart until one year after the interrogation he described as having occurred in 2011: CB 264 at [23];

   h)noted evidence given by the applicant to the Delegate that authorities had gone to his house in 2012, after his departure from Sri Lanka, but further noted that the applicant had not earlier mentioned this claim, and on the basis of the applicant’s inconsistent evidence and the lack of credible reasons why the authorities would consider him to be a person of interest, was therefore not satisfied that authorities had visited the applicant’s home in 2012: CB 264 at [26]-[27];

   i)accepted that the applicant had been subject to some attention from authorities prior to his departure from Sri Lanka, but that he was not of any particular adverse interest to the authorities by reason of his LTTE connections, either direct or indirect, at the time he left Sri Lanka: CB 264-265 at [27];

   j)referred to country information that suggested that Sri Lankans of Tamil ethnicity did not require protection by reason of their ethnicity alone, and that the situation for Tamils in the North and the East had improved substantially since the applicant was last in Sri Lanka, but that protection may be necessary if there are additional, relevant factors that may give rise to a profile of risk, noting in particular in that regard the UNHCR Eligibility Guidelines for Accessing the International Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012 (“UNHCR Eligibility Guidelines – 2012”): CB 265 at [28], and US Department of State and UK Home Office country information which indicated that:

   i)the situation for Tamils in the North and East of Sri Lanka had improved substantially since the applicant was last in Sri Lanka; and

   ii)the military government of the Northern Province had been replaced with a civilian government, and monitoring of individual citizens had been reduced and restrictions on freedom of movement throughout Sri Lanka had been removed and significant military check-points in the North of Sri Lanka had been dismantled: CB 265 at [28]-[30],

   and was not satisfied that there was credible evidence to indicate that the applicant was at the time of his departure, or would be on his return, of any interest to the Sri Lankan authorities: CB 265 at [30];

   k)noted that both the applicant’s mother and previously detained brother continued to cultivate land in the village in which the applicant was born (see CB 262 at [12]), and that the applicant did not indicate they had experienced any problems with other racial or ethnic groups, and that the applicant also had experience of working in a factory and running his own tailoring business, and would therefore not be restricted to living or working in the same village as his mother and brother should he return to Sri Lanka: CB 265 at [32];

   l)concluded that it was not satisfied that the applicant faced a real chance of harm on account of any real or imputed pro-LTTE political opinion arising from his status as a young Tamil male, his origins, his or his family’s LTTE links, or his previous interactions with the authorities: CB 266 at [33];

   m)in relation to the applicant’s illegal departure from Sri Lanka and his seeking asylum in Australia noted that:

   i)country information indicated that the risk of mistreatment for the majority of returning asylum seekers was low, and that there was no country information which would support a finding that the applicant would be imputed to be an LTTE supporter simply because he sought asylum in Australia: CB 266 at [35];

   ii)the applicant’s departure from Sri Lanka without a passport might result in his being penalised under the Immigrants & Emigrants Act 1949 (Sri Lanka) (“I&E Act”) upon his return and that persons may be penalised by imprisonment and fines, but that in practice penalties are applied on a discretionary basis with payment by instalment and the accused (in this case, the applicant) is free to go: CB 266 at [36]; and

   iii)returning illegal departees may be charged under the I&E Act and can remain in police custody for a short period, and may be held until a magistrate is available, and did not accept that being questioned, fined, and held briefly as part of the re-entry process meant that the applicant faced any greater scrutiny or penalty than any other returning illegal departee, or that the process for the applicant upon return amounted to serious harm as defined by the Migration Act: CB 266-277 at [37]-[40];

   n)was not satisfied of any risk of harm to the applicant arising from his return to Sri Lanka as a failed asylum seeker or as someone who had departed Sri Lanka illegally: CB 267 at [41];

   o)considered whether the applicant was entitled to complementary protection by reference to whether or not there was a real risk that the applicant would suffer significant harm (as defined in s.36(2A) of the Migration Act): CB 267 at [43]-[44] and having regard to the fact that:

   i)the applicant did not face a real chance of harm in relation to either his own or his brother’s LTTE connections or as an asylum seeker and a young Tamil male from the North: CB 267 at [45];

   ii)although the relevant provisions of the I&E Act would be applied to the applicant, the applicant did not face a real risk of a custodial sentence: CB 267-268 at [46]; and

   iii)there was no real risk of significant harm arising from any brief period of detention or custody upon the applicant’s return to Sri Lanka while any offences under the I&E Act were dealt with, and that any fines or treatment that the applicant was liable to receive under the I&E Act did not amount to significant harm for the purposes of ss.36(2A) and 5 of the Migration Act: CB 268 at [47]-[48],

   in all the circumstances there was no basis for concluding that the applicant was entitled to complementary protection under s.36(2)(aa) of the Migration Act: CB 268 at [49]-[50]; and

   p)affirmed the Delegate’s Decision not to grant the applicant the Safe Haven Visa: CB 268.

Judicial Review Application

1. In the Judicial Review Application the applicant sets out the following as his grounds of review:

   1.Jurisdictional error.

   2.Bias based on conscious or unconscious prejudice by ignoring relevant material.

   3.Identifying a wrong issue on a wrong question.

   (Copied from the Judicial Review Application without amendment).

2. The Judicial Review Application was filed together with an affidavit affirmed by the applicant on 27 August 2017 annexing a copy of the IAA Decision (“Applicant’s First Affidavit”).

3. On 27 September 2017 a Registrar of the Court ordered that the applicant file and serve:

   a)any amended application including any particulars of the grounds;

   b)any further affidavits; and

   c)an outline of submissions.

   (“Registrar’s Orders”).

4. In accordance with the Registrars Orders, the applicant filed a further affidavit affirmed on 25 October 2010 (“Applicant’s Second Affidavit”), but did not file any amended particularised grounds or an outline of submissions.

5. The Applicant’s Second Affidavit:

   a)annexes a copy of a press release dated 14 July 2017 from the International Truth and Justice Project (“ITJP”) which, put broadly, asserts that the abduction and torture of Tamils by Sri Lankan security forces remained systematic because the new government of Sri Lanka had failed to dismantle the networks of the “deep state”, and that senior officers in the Sri Lankan security forces participated in the torture which was systematic and condoned;

   b)a newspaper article dated 21 July 2017 from “The Diplomat” headlined “Looking at Systemic Torture in Sri Lanka” based on an interview with a program coordinator from the ITJP, which also asserted that abductions, illegal detention and torture of Tamils continued throughout 2016 and 2017, and that the victims of torture were not hard-core LTTE cadres but persons who were forced or child recruits or persons with only a tenuous link to the LTTE often through family members;

   c)a copy of a letter dated 4 January 2017 seemingly from a member of the Sri Lankan Parliament asserting that the applicant would face serious danger if he returned to Sri Lanka; and

   d)claims by the applicant that:

   i)as a failed asylum seeker returning to Sri Lanka he would be perceived to have connections with the LTTE;

   ii)his brother was in the LTTE and lived in the LTTE-controlled areas in Sri Lanka; and

   iii)he has a well-founded fear of returning to Sri Lanka as “I will be suspect, arrested and detained by the Sri Lankan armed forced”; and

   iv)his “appeal … is that I be examined afresh as to my claims for a Protection Visa in view of the then and present situation in Sri Lanka pertaining to young Tamils like me who are retuned to Sri Lank as failed asylum seekers” (copied from the Applicant’s Second Affidavit without amendment).

6. The Court has not had any regard to the content of, and materials annexed to, the Applicant’s Second Affidavit because:

   a)both articles post-dated the Delegate’s Decision and were not part of the information referred to the IAA in accordance with s.473CB of the Migration Act;

   b)there was no obligation on the IAA to obtain or accept new information except in “exceptional circumstances”: Migration Act, s.473DD;

   c)the applicant, who was represented by a solicitor migration agent throughout the process before the Delegate and the IAA: CB 90-94, which representation included the making of written submissions by the solicitor migration agent to the IAA: CB 231-252, made no request or submission to the IAA to consider the ITJP material or the MP’s Letter prior to the IAA Decision being published;

   d)it is not open to the Court on a judicial review application to consider material which was not before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J; and

   e)for the Court to do so would entail it undertaking impermissible merits review contrary to the principles in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 and Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 93 ALR 1; (1990) 33 IR 263; [CLR] at 35-36 per Brennan J.

7. The applicant was given the opportunity to make further oral submissions in support of the Judicial Review Application at the hearing before this Court, and said:

   a)initially, that he had produced all of his evidence to the authorities already;

   b)when asked specifically about the three grounds of the Judicial Review Application, said that he had nothing to say; and

   c)in reply to the Minister’s submissions, said that:

   i)none of the facts were looked at or taken into account by the IAA; and

   ii)there was a lack of protection for him in Sri Lanka and he was still applying for protection in Australia.

Consideration

Jurisdictional error required

1. The IAA Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the IAA , will only constitute jurisdictional error if the IAA :

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. Jurisdictional error might also arise if there is a denial of such procedural fairness as is required by the terms of the Migration Act (in this case Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB): SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; AFK16 v Minister for Immigration & Border Protection [2016] FCCA 1826 at [12] per Judge Cameron.

Particularisation of grounds required

1. The Court notes that none of the grounds are particularised. The grounds remain unparticularised notwithstanding that the applicant had an opportunity to amend and particularise the grounds pursuant to the Registrar’s Orders. This alone provides a basis for each of grounds 1, 2 and 3 of the Judicial Review Application to be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited); AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5] per Logan J (and cases there cited); BCJ16 v Minister for Immigration & Anor [2017] FCCA 2943 at [13] per Judge Lucev. In the Court’s view the Judicial Review Application can be dismissed for this reason alone.

Ground 1

1. Ground 1 is unparticularised and the applicant has not identified the nature of the jurisdictional error that he relies on in ground 1. To the extent that the applicant is asserting some unidentified jurisdictional error, no jurisdictional error is evident to the Court in the IAA Decision.

2. The IAA Decision sets out:

   a)the applicant’s claims in detail: CB 261 at [8]; and

   b)the relevant law in detail: CB 262 at [9]-[10]: CB 267 at [43]-[44] and CB 269-272.

3. The IAA applied the law and considered the applicant’s claims in detail: CB 262-267 at [11]-[41] and CB 267-268 at [45]-[48]. There is nothing to suggest any breach of the IAA’s procedural fairness obligations: Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB. The IAA’s consideration of the applicant’s claims was comprehensive and it made findings and reached conclusions that were open to it on the evidence. There is nothing illogical or irrational in the IAA’s reasoning, and there is an evident and intelligible justification for the conclusions in the IAA Decision: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [76] per Hayne, Kiefel and Bell JJ.

4. Ground 1 does not establish any jurisdictional error in the IAA Decision.

Ground 2

1. Like the other grounds, ground 2 is unparticularised, and the applicant has not filed any evidence addressing the claim of bias.

2. An allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”).

3. The applicant has not otherwise distinctly or clearly proven that the IAA was either consciously or unconsciously biased because it ignored relevant material. No ignored relevant material has been identified, let alone, how or why it caused the IAA to be biased in any way. There is no evidence:

   a)that the IAA member had a pre-existing state of mind which disabled the member from undertaking, or rendered the member unwilling to undertake, any proper assessment of the applicant’s credibility: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or

   b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the IAA, might reasonably apprehend that the IAA member may not have brought an impartial mind to the assessment of the materials and the relevant issues: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.

4. The detailed manner in which the IAA dealt with the applicant’s claims also weighs against any suggestion of bias in the IAA Decision.

5. Ground 2 does not establish any jurisdictional error in the IAA Decision.

Ground 3

1. There is nothing in the IAA Decision to indicate that the IAA identified any wrong issue, or asked any wrong question; or, as it is put in ground 3, “a wrong issue on a wrong question”, and the applicant did not particularise any wrong issue or wrong question, and did not identify any wrong issue or wrong question at hearing. The IAA correctly set out the relevant law and Safe Haven Visa criteria, and assessed each of the claims made by the applicant, and did so comprehensively, and without any apparent error, jurisdictional or otherwise: see [4] and [16] above.

2. Ground 3 does not establish any jurisdictional error in the IAA Decision.

Additional Submission regarding s.473DD

1. The Minister made a brief submission to the Court concerning the IAA finding that the provision of additional material by the applicant (via his solicitor migration agent), in the form of a publicly available report on Sri Lanka which pre-dated the Delegate’s Decision and links to other publicly available news articles, was not “new information” in accordance with s.473DD of the Migration Act, and consequently could not be taken into account or considered by the IAA.

2. The IAA in the present case satisfied the requirements of s.473DD of the Migration Act as it identified the information before it that it considered to be “new information”. The IAA determined whether it was required to consider the information: firstly, by reference to whether the information could have been provided to the Delegate, and found it could have and that there was no explanation provided by the applicant why it had not been so provided; secondly, the IAA considered if the information was “credible personal information” and found it was not; and thirdly, the IAA considered whether there were exceptional circumstances to justify considering the information, where again it found there were not: CB 260 at [3]-[5]. The IAA therefore complied with, and satisfied its obligations when considering “new information”: Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [105] and [112] per Kenny, Tracey and Griffiths JJ.

3. The IAA has correctly considered the new information provided by the applicant and no jurisdictional error occurred in it not considering the new materials presented to it by the applicant.

Conclusion and orders

1. The Court has concluded that the applicant has failed to establish any jurisdictional error in the IAA Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.

2. The Court will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  12 December 2017