DYP16 v Minister for Immigration
[2020] FCCA 3120
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DYP16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3120 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa (SHEV) – whether the Authority failed to consider a crucial claim for protection – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 473 CB, 473CC, 473DA, 473 DB, 473 DC, pt 7AA Federal Circuit Court Rules (2001) (Cth) r, 16.05(1) |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 ABT17 v Minister for Immigration and Border Protection [2020] HCA34 SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | DYP16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3603 of 2016 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 12 November 2020 |
| Date of Last Submission: | 12 November 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondents: | Ms Durham – Sparke Helmore Lawyers |
ORDERS
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $6400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3603 of 2016
| DYP16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is of Tamil ethnicity, Hindu religion from Batticaloa, Eastern Province, Sri Lanka. The applicant departed Sri Lanka for Australia in 2012. The applicant arrived in Australia as an unauthorised maritime arrival on 13 October 2012. On 19 April 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”). On 10 August 2016, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the visa.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 23 November 2016, the Authority affirmed the delegate’s decision not to grant the applicant his SHEV.
The applicant now seeks judicial review of the Authority’s decision.
This matter was originally listed for a final hearing on Monday 9 November 2020. For reasons it is not necessary to go into, the Court dismissed the matter due to the non-appearance of the applicant. The matter was relisted to Thursday 12 November 2020 when it became apparent that the matter should not have been dismissed. The Court made orders pursuant to r 16.05(1) of the Federal Circuit Court Rules (2001) (Cth) (“the Rules”) vacating the dismissal of the matter.
The Immigration Assessment Authority’s Decision
After setting out the background of the matter, at paragraph 5 of its decision, the Authority set out the applicant’s claims. These may be summarised as follows:
·The applicant is from Batticaloa district and worked as a mechanic from 2002 until his departure from Sri Lanka for Australia, in 2012.
·In 2003 he was taken by some people who he assumed were part of the Criminal Investigation Department (“CID”). He was stripped of his clothing and threatened and released after three days.
·He has previously been questioned by the Sri Lankan authorities on one other occasion, in or around 2005, on the basis of being a suspected Liberation Tigers of Tamil Eelam (“LTTE”) supporter as a bomb had exploded near his work. His entire workplace was questioned and released after a few hours.
·While working as a mechanic he serviced vehicles for various groups, including the Tamil National Alliance (“TNA”), LTTE, the Sri Lankan army and Tamil Makkal Viduthalai Pulikal (“TMVP”). Each party questioned him about the services he provided to the other parties. The TMVP requested that he work for them at their camp however he refused.
·He claims to have also been targeted on the basis of his association with the TNA. He supported the TNA during the 2012 election campaign by putting up posters and attending meetings. He had been a TNA supporter since 2002.
·Three days prior to departing Sri Lanka, some unknown people with guns came towards his house. He feared for his life so ran away from his house and went to his cousin's house. He stayed there until he made arrangements to depart Sri Lanka. He thinks he was targeted because he was a TNA supporter, a mechanic and a Tamil.
·Unknown persons continue to ask about the applicant's whereabouts at his previous place of employment. He believes they are the same people who came to his house with guns.
·He fears returning to Sri Lanka on the basis of seeking asylum in Australia.
At paragraphs 8 through to 10 of its decision, the Authority accepted the applicant’s identity, the fact that he is a Sri Lankan national, that he is a Tamil Hindu male from Batticaloa, and worked as a mechanic from 2000 until 2012. The Authority accepted that the applicant serviced vehicles for different people, that he would be asked about the work that he did for other parties and that he was pressured to align himself with a single group. The Authority accepted that the TMVP attempted to recruit the applicant but that he refused to do so. The Authority also accepted that it was plausible that the applicant had previously been questioned and held by Sri Lankan authorities on suspicion of being an LTTE supporter, but that on both occasions he was released after a short period of time, as he was of no interest to the authorities. The Authority also accepted that the applicant had been a TNA supporter since 2012.
At paragraph 11 of its decision, the Authority did not accept that some unknown persons came to the applicant’s house with guns and threatened to kill him. During the applicant’s protection interview with the Department of Immigration and Border Protection (“the Department”), the applicant was unable to identify who these people were and specify why he thought he was being targeted. A letter of support provided by the applicant from a local member of Parliament provided details in the letter that were inconsistent with the applicant’s claim, such as the number of times he was threatened, how he was threatened and the events which occurred subsequent to the claimed threats by these people. The Authority did not give the letter any weight. The Authority did not accept the applicant’s claims due to his vagueness in relaying this incident and the lack of detail he was able to provide.
As the Authority did not accept that the former incident occurred, it was not prepared to accept that people have been asking about the applicant subsequent to his departure from Sri Lanka. At paragraph 12 of its decision, the Authority discusses the consequences of the applicant returning to Sri Lanka as a failed asylum seeker. The Authority noted that the applicant departed from Sri Lanka lawfully via Columbo International Airport on his own passport. The Authority was not satisfied that the authorities have maintained any adverse interest in the applicant subsequent to his last questioning in 2005.
At paragraph 16, the Authority was not satisfied that the applicant would attract adverse attention for any reason upon his return, nor would he face any harm on the basis of being a Tamil, or from any government or non-government body.
While the Authority was satisfied that the applicant may be detained for a short period of time and questioned as to his identity upon return, it was not satisfied there was a real chance he would face any harm upon return to Sri Lanka on the basis of returning as a failed asylum seeker.
Paragraphs 28 to 30 of the Authority’s decision deal with complimentary protection assessment. At paragraph 29, the Authority was not satisfied that the applicant would face a real chance of harm on the basis of being a Tamil, his previous employment as mechanic, a TNA supporter or because he would be returning to Sri Lanka as a failed asylum seeker. The Authority was not satisfied that the applicant met the requirements for either refugee protection or under the complimentary protection regime. Accordingly, the Authority affirmed the delegate’s decision.
Grounds of Judicial Review
The applicant’s grounds for judicial review are set out below verbatim:
Ground One
The Authority (IAA) erred in law, with error being a jurisdictional error, in that it failed to consider my crucial claim for protection.
Ground Two
When the IAA affirmed the decision not to grant protection visa for me it erred in law. The IAA did not invite me including for a hearing/invitation to comment on or respond to the adverse information in which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments related to the issue raised and relied to refuse my protection visa in relation to my referred application with the Authority.
Ground Three
The Authority declined to exercise its jurisdiction in my case.
Ground Four
The Authority has not considered at all the complementary protection available to me in Australia
The Applicant’s Submissions
The applicant appeared before the Court unrepresented. The applicant was assisted by a Tamil interpreter. Despite Court orders, no written submissions or other material in support of the applicant’s case were filed with the Court.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been interpreted to him.
The Court carefully explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the way in which the hearing would be conducted.
The applicant told the Court that he felt that there were errors in the interpretation of his interview with the Departmental representative. The Court explained that this matter was not the subject of any grounds of judicial review before the Court and that there was no evidence before the Court that the standard of interpretation was so inadequate that the applicant was unable to put his case. The applicant then stated he did not wish to make any further submissions.
Following the close of the first respondent’s submissions, the applicant was asked if he wished to say anything further. The applicant replied “No”.
The First Respondent’s Submissions
In relation to ground one, the applicant contends that the Authority failed to consider his “crucial” claim for protection but does not identify what that claim was said to be. It was submitted that a review of the decision record reveals that the Authority considered and made findings in relation to each of the applicant’s claims for protection.
In relation to ground three, the applicant makes a bare assertion that the Authority failed to exercise jurisdiction but does not particularise how it is said to have occurred. It was submitted that in the absence of particulars, these grounds lack merit and should be dismissed on that basis alone.
In relation to ground two, the applicant contends that the Authority erred in not inviting him to a hearing or otherwise to comment on adverse material. It was submitted that pt 7AA of the Act provides a mechanism of limited review for fast track reviewable decisions. It was submitted that the combined effect of ss 473CB, 473CC, 473DA, 473DB and 473DC of the Act is such that the Authority is required to conduct a review of the delegate’s decision on the papers, without interviewing the referred applicant.
Pursuant to s 473DC(2) the Authority does not have a duty to get, request or accept any new information. Whilst in limited circumstances the Authority can be compelled to obtain new information, it is not under a general duty to do so: (see ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [25]).
The applicant has not particularised what information compelled the Authority to invite him to a hearing or what adverse information he should have been invited to comment on, nor is any such information discernible from the Authority’s decision. The Authority made its decision on the basis of the review material provided to it by the Secretary and made findings in accordance with those made by the delegate, including in relation to the applicant’s demeanour and credibility. Accordingly, the Authority was under no obligation to invite the applicant to an interview or to comment on information pursuant to s 473DE of the Act. Accordingly, no jurisdictional error arises.
In relation to ground four, this is a complaint that the Authority did not consider “at all” Australia’s complimentary protection obligations. This fails at a factual level. At paragraphs 27-30 of its decision, the Authority considered the main findings in relation Australia’s complimentary protection obligations. In so far as the applicant’s complaint is to be understood as being directed at the Authority’s findings, that it did not consider at all the complimentary protection obligations, this is without substance. The Authority set out the correct statutory test for the complimentary protection. The Authority then proceeded to rely on earlier findings that the applicant would not face harm upon return to Sri Lanka. Accordingly, the complimentary protection criteria were not met. This approach was open to the Authority: (see SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125).
In oral submissions, the legal representative for the first respondent noted that the issue of the standard of the interpretation at the Departmental interview had been raised before the Authority. At paragraph 4 of its decision, the Authority noted these concerns but did not find the alleged errors to be material to the findings it went on to make.
It was further noted that the applicant had not addressed any of the grounds of judicial review contained in the originating application. Accordingly, the Minister relied upon the written submissions filed with the Court.
Consideration
It is well-established that the Authority is not required to accept uncritically any and all claims made by an applicant: (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). It is for the applicant to satisfy the Authority, being the relevant decision-maker, that the applicant meets the criteria for being a refugee: (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
Part 7AA of the Act sets out a clear process by which fast track reviews are to be undertaken by the Authority. Section 473DB of the Act states that reviews are to be carried out without accepting or receiving new information: (see s 473DB(1)(a) of the Act), and without interviewing the referred applicant: (see s 473DB(1)(b) of the Act). The receipt of new information is strictly limited pursuant to s 473DD of the Act. Some new information must be given to the referred applicant if it has been considered by the Authority pursuant to s 473DD of the Act and would be part of the reason for affirming a fast track reviewable decision: (see
s 473DE1)(a) of the Act).
In relation to the issue of the standard of interpretation, this was not raised in the grounds of judicial review. The Authority found that the alleged errors were not material. In the absence of any evidence that the conclusion of the Authority in this regard involved jurisdictional error, this new ground, even if leave to rely upon it were granted, cannot succeed.
In terms of the grounds relied upon by the applicant in the initiating application, ground one is a bland assertion without any particulars. In the absence of particulars, a bland assertion does not constitute jurisdictional error: (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35]). In any event, the Court has perused the Authority’s decision record and is satisfied that each of the applicant’s claims were identified, discussed and dismissed. Ground one reveals no jurisdictional error.
Ground two is misconceived. As set out above, pt 7AA of the Act reviews are severely constricted by the Act. They are carried out on the papers provided by the Secretary to the Authority. There is no general requirement to interview the applicant. The Court is satisfied that there was no new material received by the Authority that enlivened any of the obligations under s 473DE of the Act to refer material to the applicant for comment prior to making its decision, nor was there any obligation on the Authority to interview the applicant pursuant to
s 473DC(3) of the Act. Ground two reveals no jurisdictional error.
Ground three is, again, a bland assertion without any particulars. Without particulars it is impossible to respond to. No jurisdictional error is made out: (see WZAVW).
Ground four asserts that the Authority has not considered all the complimentary protection requirements. The Court is satisfied that the Authority correctly instructed itself as to the relevant complimentary protection requirements under s 36(2)(aa) of the Act at paragraphs 27 and 28 of its decision. Based on the findings that the Authority had made previously in relation to the refugee criteria, it found that the applicant would not face a real chance of serious harm on the basis of being a Tamil, his previous employment as a mechanic, being a TNA supporter or because he would be returning to Sri Lanka as a failed asylum seeker. The Court is satisfied that the Authority correctly considered the relevant test and simply found that the complimentary protection requirements were not met. There is nothing irrational, illogical or legally unreasonable in this finding. No jurisdictional error is made out.
As the applicant is unrepresented, the Court has carefully perused the Authority’s decision and is not satisfied that there is jurisdictional error which has not been articulated by the applicant.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 19 November 2020
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