DZO16 v Minister for Immigration

[2018] FCCA 1015

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZO16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1015

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – protection visa – fast-track reviewable decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CA, 473CB, 473CC, 473DA, 473DC, 473DD, 473GA, 473GB, 473JA

Migration Regulations 1994 (Cth), reg.4.43

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) HCA 6
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: DZO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2779 of 2016

Judgment of: Judge Hartnett

Hearing date: 10 November 2017

Delivered at: Melbourne

Delivered on: 24 April 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2779 of 2016

DZO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed 20 December 2016 wherein the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) made on 8 December 2016 which affirmed a decision of a delegate of the Minister of Immigration and Border Protection (‘the delegate’) not to grant the Applicant a protection visa (‘the visa’).

2. The grounds of application are as follows:- 

   “1. The IAA made a Jurisdictional error.

   Particulars

   The IAA reviewer failed to discern a Convention nexus namely the Applicant will be imputed with the LTTE profile for his association/working at the Centre for Health as this organisation has been branded by an organisation associated with the LTTE.

   2. The IAA made a jurisdictional error.

   Particulars

   The IAA failed to consider future persecution for failing to attend authorities who had imposed reporting conditions.”

Background

1. The Applicant was born on 11 July 1988 in Sri Lanka. The Applicant is a Hindu Tamil from Jaffna in the Northern Province of Sri Lanka.  He is a citizen of Sri Lanka. The Applicant arrived in Australia on 18 October 2012 by boat. 

2. On 8 February 2016, the Applicant lodged an application for the visa.  This was an application for a Safe Haven Enterprise (subclass 790) visa (‘SHEV’). 

3. On 6 January 2013 the Applicant participated in an entry interview with the then Department of Immigration and Citizenship (‘DIAC’) now the Department of Home Affairs.  In that interview the Applicant made claims about adverse attention from the Criminal Investigation Department (‘CID’) in Sri Lanka, because he was injured in a grenade attack.  The CID, he claimed, suspected that he threw the grenade. Following the grenade attack, the Applicant claimed that he was in hospital for five or six days, and was released on 25 July 2006.  He was questioned at home by the CID on 26 July 2006, then taken to a CID camp for further questioning.  He was held overnight and released on 27 July 2006.  He was assaulted by the CID during interrogation.  He was required to report to the CID every Monday following his release.  Reporting requirements were gradually reduced to every fortnight, then monthly, then ceased entirely.

4. The Applicant’s family had moved to India in 1990, staying there for approximately one year.  In 2011 and 2012 the Applicant returned to India. 

5. The Applicant claimed the CID thought he had escaped abroad, and that they inquired of his parents as to his whereabouts. When he returned from India, he was required to attend upon the CID who held him for two days.  His parents paid money, but the CID still held his passport. Because of these matters, he claims he was required to leave the country.  He further claimed that he had been tortured by being beaten with a gun butt and sticks, and that needles had been inserted in his hand.  This had occurred in June 2012.

6. In his application for the SHEV, the Applicant made, in summary, the following claims:

   a)he would be persecuted by the government authorities because he is a Tamil, as had happened in the past; 

   b)he was injured in a bomb blast on 20 July 2006, which he believed was instigated by the army.  Following this blast, he had been subject to adverse attention from Sri Lankan authorities and was suspected of being affiliated with the Liberation Tigers of Tamil Eelam (‘LTTE’); and

   c)in 2009 he had worked with an NGO that was suspected of supplying goods to the LTTE. This reinforced the authorities’ suspicion that he was affiliated with the LTTE, and he went into hiding.  However, he was arrested and tortured in June 2012.

7. On 14 October 2016, a delegate of the Minister refused to grant a SHEV to the Applicant.  The delegate did not accept the Applicant worked at a NGO in 2009, nor did the delegate accept the Applicant was in hiding between 2010 and 2012, because the Sri Lankan authorities were investigating him for his work at the NGO.  The delegate did not accept the Applicant was questioned or detained by the Sri Lankan authorities in 2012 after a trip to India.  The delegate found, in addition to his travel to India in 2012, the Applicant had also travelled to India in 2011. The delegate was not satisfied the Applicant was owed protection obligations for any of his claimed reasons and found that the majority of his claims were fabricated.

8. On 20 October 2016 a delegate of the Minister issued a certificate pursuant to s.473GB of the Migration Act 1958 (Cth). That notification, regarding the disclosure of certain information covered by s.473GB of the Act, was relevantly as follows:-

   “I notify the Immigration Assessment Authority that section 473GB of the Migration Act 1958 applies to a document or information in a document titled QAM045-NON-DISCLOSABLE FCC report contained in PDF in portfolio...

   In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:

   (a) the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest.

   (b) the document, or any matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

   The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.

   This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958...”

9. The Minister accepts that the above notification, pursuant to s.473GB of the Act, was not disclosed to the Applicant.

10. On 26 October 2016 the delegate’s decision was referred to the IAA for review.

11. On 17 November 2016 the Applicant’s migration agent provided a submission to the IAA. The IAA refers in some detail to the contents of the submission provided to it by the Applicant’s migration agent, in its Decision and Reasons (‘the Decision Record’). The IAA noted that those parts of the submission which were not new information, had nevertheless been considered by the IAA. 

12. The IAA noted further that the submission claimed the Applicant was not given a fair SHEV interview.  The IAA listened to the SHEV interview recording, which was over three hours in length, noting that the Applicant was assisted by his former migration agent who also provided oral submissions at the SHEV interview. The IAA was satisfied the Applicant had been given a fair opportunity to present all his claims at the SHEV interview. Further, in response to the Applicant submitting that there were interpreting errors, including misinterpretations and failure to interpret some information during the SHEV interview, the IAA found that the interpreter was an NAATI accredited interpreter and the IAA was:-

    “...not satisfied on the evidence before me that the standard of interpreting at the SHEV interview was unreasonable.”

13. The IAA also referred, in paragraphs 6 to 9 inclusive of the Decision Record, various other matters as raised in the submissions provided on 17 November 2016, including country information and newspaper items; new claims raised that were not raised before the delegate; and the migration agent’s submissions that the IAA should contact “Mr R and the UK authorities to verify parts of the applicant’s evidence”.  The IAA gave logical and probative reasons for its determination that it was reasonable for the IAA to make a decision without contacting Mr R or the UK authorities in the conduct of its fast track review. 

14. The IAA said, at paragraph 6 of the Decision Record, relevantly:-

    “...under s.473DC, I am not obliged to obtain new information just because the applicant requests me to do so, although I do have a discretion to do so.  Any new information from Mr R or the UK authorities though must meet the exceptional circumstances limitation in s.473DD for me to be justified to consider it. In relation to Mr R, the applicant has made claims both he and Mr R fear harm from the Sri Lankan authorities, it therefore is inappropriate for me to contact Mr R in Sri Lanka. Moreover, I would be unable to verify the identity of Mr R.  In relation to the UK authorities, I already have information from them in the review material, which I will discuss in more detail below.  I am satisfied in these circumstances that it is reasonable for me to make a decision without contacting Mr R or the UK immigration authorities.”

The Decision

1. On 8 December 2016 the IAA affirmed the delegate’s decision.  Having regard to the material before it, the IAA summarised the Applicant’s claims as set out in paragraph 10 of the Decision Record, and noted that the Applicant claimed to have a well-founded fear of persecution on the Convention grounds of:-

   a)his Tamil ethnicity;

   b)because he would be imputed as a supporter of the LTTE; and

   c)because he was a member of a number of particular social grounds being “failed asylum seekers”, “Tamils from the north”, “young Tamil males” and “people who had departed Sri Lanka illegally”.

New Information

1. As stated above, the IAA noted that the Applicant’s submissions contained some new claims, not put before the delegate although the opportunity had been there for the Applicant to do so.  The IAA noted that there was no “primary” evidence of the claims, only the submissions of the migration agent.  The IAA found in paragraph 7 of the Decision Record that it was not clear to it:-

   “why the applicant could not provide the new claims to the delegate.  It is not clear to me how the new claims would have affected consideration of the applicant’s claims. I am not satisfied there are exceptional circumstances which justify my considering the new claims.” 

   Such new information as was provided to the IAA could only be considered by it if the IAA was satisfied there were exceptional circumstances within the meaning of s.473DD of the Act, and the Applicant satisfied the IAA that the new information was not and could not have been provided to the Minister, and was credible personal information which was not previously known that had it been known, may have affected the consideration of the Applicant’s claims.[1]

   [1] Migration Act 1958 (Cth) s.473DD(3).

2. The IAA noted that attached to the Applicant’s submission to the IAA was a bundle of documents as set out in paragraph 9 of the Decision Record. The IAA found in respect thereto:-

   a)an English translation of a newspaper article dated January 2010, regarding the NGO the Applicant claims to have worked with, to be “new information”, but was not satisfied it could not have been provided prior to the date of the delegate’s decision, nor that it was credible personal information which, had it been known, would have affected the consideration of the Applicant’s claims, nor were there exceptional circumstances to justify consideration of the article;

   b)the medical records of the Applicant had been provided to the delegate and were not new information;

   c)an English translation of a newspaper clipping dated July 2006 regarding attacks in the Applicant’s home town was not “new information”;

   d)a printout of a news article from the website of the Tamil Guardian dated February 2015 was not before the delegate and was “new information”.  However, it predated the Applicant’s visa application; it was not clear to the IAA why the Applicant could not have provided the printout to the delegate; and also not clear to the IAA why the printout contained information which would have affected consideration of the Applicant’s claims. The IAA was not satisfied there were exceptional circumstances which justified its consideration of the printout of the news article.

3. The IAA noted in the bundle of documents submitted, additionally, a report from the Human Rights Commission of Sri Lanka to the Committee Against Torture dated October 2016. Such report was not before the delegate. The IAA considered the SLHRC report to be “new information”.  Again, there was no statement before the IAA explaining why there were exceptional circumstances to justify its considering the report. However, the IAA considered the SLHRC report contained the most up to date available information regarding torture in Sri Lanka and was satisfied there were exceptional circumstances which justified the IAA’s consideration of the report.

4. Finally, the submission extracted numerous items of country information, in part country information not before the delegate (‘the new country information’). The IAA therefore considered the new country information to be “new information”.  Once again the IAA noted there was no statement explaining why there were exceptional circumstances justifying the IAA’s consideration of the new country information.  All of the items of new country information predated the delegate’s decision and much of it predated the SHEV application.  It did not contain personal credible information. The IAA was not satisfied there were exceptional circumstances which justified its consideration of the new country information.

The findings

1. The findings of the IAA were:-

   a)the IAA accepted that the grenade attack had occurred but found that the Applicant had exaggerated his claim regarding the level of interest the Sri Lankan Army (‘SLA’) held in him, and did not accept that the Applicant was required to report to the CID camp for three years, or that the SLA extorted money from his father;

   b)the IAA did not accept a number of other claims made by the Applicant which included the Applicant’s claims that he worked with the NGO; and

   c)due to the multiple inconsistencies, implausibilities and non-persuasive explanations of the Applicant, the IAA rejected as not credible the Applicant’s claims.

2. In reaching the above conclusions, the IAA placed weight on a February/March 2011 trip to India, undertaken by the Applicant as part of a visa application to the UK. The IAA considered this trip greatly undermined the Applicant’s claims to have been of interest to the Sri Lankan authorities for his claimed work with the NGO. The IAA said, relevantly, at paragraph 25 of the Decision Record:-

   “The 2011 trip information is from the UK authorities and the department included that information in the review material to the IAA, subject to a s.473GB certificate. I have an obligation to preserve the s.473GB certificate and I consider the delegate gave the applicant sufficient details at the SHEV interview to comment on the 2011 trip information and how that indicated the applicant was in India in 2011 to apply for a UK visa. The applicant denied at the SHEV interview he went to India in 2011. I note in the entry interview the applicant states he applied for a visa to UK when he was in India, but it is unclear which year that was. In the SHEV statement he is silent about applying for a visa to the UK. During the SHEV interview, he claimed his sister applied for a UK student visa for him in 2010, that application was unsuccessful due to his not meeting English language requirements. Elsewhere, he told the delegate he re-submitted a UK student visa application.”

3. Further, the IAA rejected the Applicant’s claim that the Sri Lankan authorities arrested him on return to Sri Lanka in 2012, rejected his claim that the Sri Lankan authorities questioned his father or harassed his family members. The IAA did not accept that the CID had a level of interest in the Applicant which he claimed they had, and noted that the Applicant had never been charged with any offence.  The IAA did not consider the Applicant’s past, limited, and indirect connection to the LTTE, or the scars on his body would give him a profile that would bring him to the attention of the Sri Lankan authorities as being someone who had a connection to the LTTE.

4. Ultimately, having rejected the majority of the Applicant’s factual claims and having considered relevant country information and given it what weight the IAA deemed appropriate, the IAA concluded the Applicant did not have a real risk of serious harm or significant harm if he were to return to Sri Lanka.

Consideration

1. It is not in dispute that the Applicant is a “fast-track review Applicant” and that the delegate’s decision to refuse to grant him a protection visa is a “fast-track reviewable decision”. Accordingly, in discharge of his obligation under s.473CA of the Act, the Minister referred the delegate’s decision to the IAA. The IAA is part of the Administrative Appeals Tribunal.[2]

   [2] Migration Act 1958 (Cth) s 473JA.

2. The Secretary was obliged by s.473CB of the Act to provide certain material (known as the “review material”) to the IAA including:-

   a)a statement of reasons by the delegate;

   b)material provided by the Applicant to the delegate before the decision was made;

   c)any other material that was in the Secretary’s possession or control and considered by the Secretary (at the time the decision was referred to the IAA) to be relevant to the review; and

   d)certain contact details for the Applicant.

3. The IAA was obliged by ss.473CC (1) of the Act review the delegate’s decision under s.65 of the Act to refuse to grant the Applicant a protection visa. As a consequence of that review the IAA, under s.473CC(2) of the Act, could, “Affirm the ... decision,” or, “remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by the regulation.” [3]

   [3] Migration Regulations 1994 (Cth) reg.4.43.

4. In that process it was possible for the IAA to affirm the decision of the delegate to refuse to grant the Applicant a visa while having different reasons to the delegate for so doing.  In that instance, as was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the IAA’s consideration of the issues on review need to be obvious on the materials before the IAA (and thus known to the Applicant) or alternatively, conveyed by the IAA to the Applicant as being critical issues for review that may be dispositive of the outcome. The IAA is not limited by the reasons given by the delegate for the delegate’s decision.

5. Critically s.473DA of the Act (which comprises subdivision A) provides as follows:-

   “MIGRATION ACT 1958 - SECT 473DA

   Exhaustive statement of natural justice hearing rule

   (1)  This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

Conclusion

1. The Applicant raises two grounds of review as to the IAA committing jurisdictional error as set out at the commencement of these reasons.  In respect of ground 1, there is no substance to this ground.  The IAA clearly considered the claim made by the Applicant, understood the claim as made, and rejected it for the reasons that it gave.  It was clearly open to the IAA on the evidence before it to so reject the claim. 

2. In respect of ground 2, there is no substance to this ground.  The IAA was cognisant of the claim which was being made, considered it carefully and rejected it for the reasons which it gave.  The IAA’s determination was clearly open to it on the evidence before it.  This ground cannot succeed.

3. The IAA correctly interpreted and applied the applicable law and its reasons were rational and reasonable.[4] The statutorily provided natural justice hearing rule requirements (as set out in Division 4 of Part 7AA) of the Act and paragraph 30 above were complied with.

   [4] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) HCA 6.

The Certificate

1. The Minister notes that a s.473GB of the Act certificate was issued but submits that nothing arises from the certificate because the information covered by the certificate issued under s.473GB(1) of the Act was not, “new information,” as defined in s.473DC(1) of the Act. Rather, it was information that was before the Minister. The Court accepts that submission.

2. The application shall be dismissed and costs shall follow that event.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  24 April 2018