EAJ18 v Minister for Home Affairs

[2018] FCCA 3780

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAJ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3780

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority failed to consider relevant country information – whether the Authority failed to consider new information – whether the Authority’s adverse findings under s 473DD of the Act lack an evident and intelligible justification – whether the Authority failed to consider all of the applicant’s claims – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5H, 36, 473DC, 473DD, 476, 499

Applicant: EAJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2165 of 2018

Judgment of: Judge Street

Hearing date: 18 December 2018

Date of Last Submission: 18 December 2018

Delivered at: Sydney

Delivered on: 18 December 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,800.00.

DATE OF ORDER: 18 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2165 of 2018

EAJ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION 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 18 July 2018 affirming a decision of the delegate not to grant the application a Temporary 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. The applicant applied for the visa on 3 August 2015 and on 19 September 2017, the delegate found the applicant failed to meet the criteria for the grant of the visa.

3. The applicant claimed to fear harm by reason of disappearance of his father and one of his brothers. The applicant claimed to fear harm from the Karuna Group and the Criminal Investigation Department (“CID”) if returned to Sri Lanka. The applicant also claimed to fear harm from the Sri Lankan authorities due to his illegal departure and because of the profiles of his brothers.

4. On 25 September 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions by emails dated 17 October 2017 and 18 October 2017 and insofar as they engaged with the delegate’s decision, the Authority had regard to the same.

5. The Authority identified that there was new information that was provided and the Authority was not satisfied there were exceptional circumstances to justify considering the new information. The Authority’s reasons in relation to s 473DD of the Act refer to both limbs of s 473DD of the Act in the context of considering new information. There is no proper basis to infer that the Authority failed to have regard to the whole of s 473DD of the Act in considering the new information. Further, the Authority’s reasons reflect taking into account the nature of the new information in considering whether or not the requirements of s 473DD of the Act were met. I accept the first respondent’s submission that the reference to personal information expressly referred to in the context of s 473DD of the Act was a short form expression for the whole of the content of what is in s 473DD(b)(ii) of the Act.

6. The Authority summarised the applicant’s claims. The Authority did not accept the applicant’s claim that his father was shot dead and found the applicant’s father died of natural causes. The Authority identified an inconsistency with the applicant’s claim as to the date of his father’s death and the birth of his younger sibling. The Authority also identified discrepancies in respect of the dates as to whether his brother was killed or went missing. Given those inconsistencies, the Authority was not satisfied that the applicant’s brother was killed but was willing to accept that he had gone missing in the early 2000s.

7. The Authority noted that the applicant never claimed his father or missing brother were involved in the Liberation Tigers of Tamil Eelam (“LTTE”). The Authority was not satisfied that the Sri Lankan authorities were responsible for the applicant’s brother’s disappearance. The Authority was not satisfied that the applicant faced any difficulties with the Sri Lankan authorities due to the disappearance of his brother.

8. The Authority referred to an alleged incident in 2004 in which a tsunami caused certain equipment from a Special Task Force (“STF”) camp to be washed onto the applicant’s property. The Authority referred to the applicant claiming that the STF came and collected the items. The Authority noted that the applicant did not suggest that he had any further issues with the STF after this time. The Authority was prepared to accept that the STF may have spoken to the applicant about the items washed onto the property. The Authority considered it highly unlikely that the STF would suspect the applicant of having kept items given he voluntarily provided the STF with information about the items. The Authority found it was not satisfied that the STF had any further interest in the applicant after collecting the items. The Authority was not satisfied the applicant was perceived by the STF or the Sri Lankan authorities as having connections with the LTTE due to the death or disappearance of his father and brother or for any other reason.

9. The Authority referred to the applicant’s claims that he had performed work for the Karuna Group through his sister during the harvest season in 2012 and did not complete the agreed work because he was only paid once. The Authority identified having a number of concerns about the applicant’s evidence over time. The Authority found the applicant’s evidence had not been consistent as to where he had moved or whether he had hid in Batticaloa before he had left Sri Lanka, which led the Authority to doubt the veracity of this claim.

10. The Authority also identified inconsistency in relation to the applicant’s evidence about being approached and who approached him from the Karuna Group for payments. The Authority found that the applicant had changed his evidence at the Temporary Protection visa interview in response to questions asked in relation to ceasing work and payments. The Authority did not consider it plausible that the Karuna Group would threaten to harm the applicant if the agreement was between his sister and the Karuna Group. The Authority did not accept the applicant’s sister would refuse to complete work for the Karuna Group. The Authority found it implausible that the applicant would have lodged a complaint with the police about the want of payment by the Karuna Group and did not accept that the document advanced was reliable.

11. The Authority found the applicant’s claims, because of the problematic nature of his evidence, were not credible. The Authority did not accept the applicant worked for the Karuna Group through his sister. The Authority did not accept the applicant was paid for work done by the Karuna Group and that the Karuna Group threatened him and that he moved or entered hiding. The Authority did not accept the applicant was of adverse interest to the Karuna Group before he left Sri Lanka. The Authority did not accept the Karuna Group or CID threatened the applicant’s sister or looked for the applicant after he left Sri Lanka.

12. The Authority referred to the applicant having two brothers who were seeking asylum in Australia and having left Sri Lanka by boat. The Authority was not satisfied the applicant was perceived to be pro-LTTE or anti-government because he and his brother left Sri Lanka and sought asylum in Australia. The Authority was not satisfied that the applicant would attract any adverse attention during questioning or investigation upon arrival given his profile as a failed asylum seeker or involuntary returnee who had left Sri Lanka for a considerable period of time.

13. The Authority was not satisfied the applicant faces a real chance of harm as a young Tamil male from the Eastern Province and as a returning asylum seeker from Australia who has one brother missing and two brothers who have departed illegally by boat, like the applicant. The Authority found the prison conditions to which the applicant may be subjected for a very short period of time of detention, together with the imposition of a fine, do not amount to serious harm within the meaning of s 5J(5) of the Act.

14. The Authority found that the Immigrants and Emigrants Act 1949 (Sri Lanka) applies to all Sri Lankans and is not discriminatory on its face or in its enforcement. It was in those circumstances that the Authority was not satisfied that the questioning and brief period of detention and penalties constitute persecution for the purpose of s 5J(1) of the Act. The Authority was not satisfied the applicant faces a real chance of persecution for any of the reasons claimed.

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

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

Before this Court

1. On 27 August 2018, a Registrar made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the explanation given by the Court.

3. From the bar table, the applicant maintained that the Karuna Group would kill him and that he was still facing problems and that he could not return to Sri Lanka. The applicant referred to the items that had been washed onto his property and his concerns in relation to the STF which the Authority had not accepted. The applicant’s submissions from the bar table, in substance, invited the Court to engage in merits review. This Court has no power to review the merits. It is apparent from the Authority’s reasons as summarised above that the Authority addressed the applicant’s claims, including in relation to the items that washed onto the property and made dispositive findings that were open to the Authority for the reasons given by the Authority. No jurisdictional error arises by reason of anything said by the applicant from the bar table.

The grounds

1. The grounds in the application are as follows:

   Ground 1 - The Authority failed in its obligation to consider the more recent DFAT report publication on Sri Lanka dated May 2018.

   Particulars

   1. The Authority is in breach of Direction No. 56 made under s 499 of the Migration Act 1958, which relevantly provides that: Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision.

   Ground 2 – The Authority erred when it failed to consider the new information put forward.

   Particulars

   1. The applicant provided new information (PTA article) [5].

   2. The Authority states as the there was PTA related information before the delegate that was more recent than what the applicant put forward there was no need to consider the applicant's article

   3. The Authority did not consider the more recent DFAT report

   4. Therefore it was not open for the Authority to conclude that the delegate relied upon more recent DFAT report.

   5. The proper course of action should have been to obtain the more recent DFAT report (May 2018) first before disregarding the applicant's PTA article.

   6. The Authority makes a similar error at [6] when it gave its reasons for disregarding the CAT report.

   Ground 3 - The IAA exercised its discretion in an unreasonable manner when disregarding all new information provided by the applicant

   Particulars

   1. The Authority refused to consider all material provided by the applicant considered as new information [5] - [8]

   2. It was so unreasonable to not consider all the material put forward

   Ground 4 - The IAA committed jurisdictional error as it failed to consider the applicant's brothers' claims in a proper and fair manner

Ground 1

1. In relation to ground 1, I accept the first respondent’s submission that s 499 of the Act and Direction No. 56 has no application to the review under Part 7AA of the Act. Further, it is apparent that the applicant had an opportunity to put on new information as a result of the letter sent by the Authority to the applicant. In those circumstances, the absence of express consideration of the power under s 473DC of the Act to take into account updated country information in the nature of a DFAT report cannot be said to lack an evident and intelligible justification.

2. Further, no information has been provided to identify any significant difference between the updated DFAT country information report and the one that was taken into account by the Authority. In those circumstances, it is not apparent that there is any issue of a kind that would warrant consideration by the Authority of whether or not it should exercise its powers under s 473DC of the Act. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. No judicial review as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, it is apparent that the Authority did take into account that it had received what was identified as new information and considered whether or not that new information met the requirements of s 473DD of the Act. For the reasons already given, the Court finds that the Authority took into account the whole of s 473DD of the Act in considering the new information. There is no proper basis to find that the Authority adopted an unduly narrow meaning of exceptional circumstances or that the Authority misconstrued the content of s 473DD(b)(ii) of the Act.

2. The proposition advanced in ground 2 that the Authority did not consider the new information in substance takes issue with the adverse finding under s 473DD of the Act which, for the above reasons, is not affected by any relevant legal error. Insofar as ground 2 refers to the more recent DFAT report, for the reasons given above, there was no requirement for the Authority to expressly consider exercising its powers under s 473DC of the Act in respect of the more recent DFAT report. No jurisdictional error is made out by ground 2.

Ground 3

1. Ground 3 seeks to take issue with the adverse finding in respect of the new information not meeting the requirements of s 473DD of the Act. In considering the new information, the Authority gave reasons in support of the adverse findings concerning the new information. Those reasons appear in paragraphs 5 to 8 of the Authority’s reasons. The reasons include identifying the nature of the information and also refer to the content of s 473DD(b)(i) of the Act. Further, there is express reference to the second limb of s 473DD(b) of the Act in paragraph 7. Given the reasons provided by the Authority, the adverse findings under s 473DD of the Act cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, it is apparent from the Authority’s reasons as summarised above that the Authority took into account that the applicant had brothers who had claimed asylum and had left Sri Lanka, like the applicant. The Authority’s reasons do not reflect any failure to consider the applicant’s claims. The adverse findings were open for the reasons given by the Authority. Those reasons cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 4 is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 January 2019