Eay19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 422

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 422

File number(s):

SYG 2696 of 2019

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

10 March 2021

Catchwords:

MIGRATION – Immigration Assessment Authority – safe Haven Enterprise (Protection) visa (“SHEV”) – whether the Authority fell into jurisdictional error by failing to obtain new information – no jurisdictional error is made out – the application is dismissed

Legislation:

Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 473DB, 473DC, 473DC(2).

Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86.

Number of paragraphs:

44

Date of last submission/s:

1 March 2021

Date of hearing:

1 March 2021

Place:

Parramatta

Solicitor for the Applicant:

The Applicant appeared unrepresented

Counsel for the First Respondent:

Mr Swan of Counsel

ORDERS

SYG 2696 of 2019

BETWEEN:

EAY19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	10 MARCH 2021

THE COURT ORDERS THAT:

1.An extension of time, pursuant to s 477(2) of the Migration Act 1958 (Cth) is granted

2.The application is dismissed.

3.The applicant to pay the first respondent’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a national of Sri Lanka. The applicant left Sri Lanka unlawfully, without a passport, on 26 September 2012. The applicant arrived in Australia, by boat, in December 2012.

2. On 13 March 2017, the applicant lodged an application for a Safe Have Enterprise (Protection) visa (“SHEV”). On 14 May 2019, a delegate of the then Minister for Immigration and Border Protection (“the Delegate”), refused to grant the applicant’s visa.

3. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 11 June 2019, the Authority affirmed the decision not to grant the applicant a protection visa.

4. The applicant now seeks judicial review of the Authority’s decision.

   THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

5. Given the grounds of judicial review that are set out below, it is not necessary to summarise completely the Authority’s decision. At paragraph 5 of its decision, the Authority set out the applicants claims which relate to him having a fear from Sri Lankan authorities in relation to the applicant’s association with the Liberation Tigers of Tamil Eelam (LTTE). This includes being held for a period of three months by Sri Lankan authorities and approaches being made by Sri Lankan authorities to his family.

6. At paragraph 9 of its decision, The Authority accepted that the applicant was of Tamil ethnicity and resided in the northern province of Sri Lanka, following the Hindu faith. At paragraph 11 of its decision, the Authority noted that some of the information regarding the applicant’s employment history was inconsistent with that of his SHEV application.

7. More importantly, at paragraph 13 of its decision, the Authority noted the Department wrote to the applicant on 10 April 2019 requesting him to attend an interview on 7 May 2019 to discuss his visa application and his protection claims. That letter was addressed to the applicant’s nominated postal address. The letter stated that if the applicant did not attend for an interview, his application will be decided on the information already provided. That letter was returned to the Department. The Authority noted, at paragraph 14 of its decision, that the applicant was advised that he needed to  keep the Department advised of any changes of address and the importance of doing this.

8. At paragraph 15 of its decision, the Authority noted that the Department attempted to contact the applicant by telephone on the number he had provided in his contact details. The number appeared to be wrong or disconnected. The Authority was satisfied that the Department had made attempts to contact the applicant to ensure that he was aware of his opportunity to attend the interview. The Authority also noted that it was required to pursue the objective of conducting a limited review that is efficient, quick, free and consistent with Part 7AA, Division 3 of the Migration Act 1958 (Cth) (“the Act”),. In these circumstances, the Authority decided to proceed with the matter without getting any new information under s 473DC of the Act.

9. At paragraph 16 through to 19 of its decision, the Authority set out the history given by the applicant. At paragraph 20 of its decision, the Authority noted a number of inconsistencies between the applicant’s arrival interview and his SHEV application. This included that, in his arrival interview, the applicant stated he was tortured, beaten and that Sri Lankan authorities took off his toenails, but these claims were not repeated in his SHEV application. The applicant, in his arrival interview, stated that the army shot his paternal grandfather and his uncle had been taken long ago in 1995 by the army, however, the applicant had not claimed this in his SHEV application.

10. The Authority noted at paragraph 21 of its decision, that the failure of the applicant to attend his SHEV interview meant that the inconsistencies could not be explored. Based on the limited and inconsistent evidence before the Authority, the Authority was not satisfied that the applicant had been arrested by the army and handed over to the CID in 2006, nor was it satisfied that in 2007, he was fired upon indiscriminately by the army or that they had taken his identification from him. The Authority was not satisfied, at paragraph 25 of its decision, that the applicant gave food to the LTTE, or at paragraph 26 of its decision, that the applicant’s brother took poison and died as he was asked by the Sri Lankan Criminal Investigation Department (“CID”) many times about the applicant.

11. Paragraphs 31 through to 37 of the Authority’s decision deal with country information that was before the Authority. Based on the applicant’s ethnicity and his northern origins, and the findings that he had no direct involvement with the LTTE, the Authority found that the applicant was of no adverse interest to authorities at the time he departed Sri Lanka in 2012. The Authority concluded that it did not find that there was a real chance that the applicant would be targeted for any harm by Sri Lankan authorities, now, or in the reasonably foreseeable future.

12. Paragraphs 39 through to 50 of the Authority’s decision deal with the fact that the applicant would be returning to Sri Lanka as a failed Tamil asylum seeker who departed illegally from Sri Lanka. The Authority accepted that, as the applicant would be returning to Sri Lanka on temporary travel documents, he would be questioned and held by relevant authorities and placed before a Magistrate’s Court in relation to an offence of having departed Sri Lanka other than by an approved port of departure, such as a seaport or airport. Whilst the Authority was satisfied that the applicant might be held over the weekend, or, for up to 2 days, he would be fined and not imprisoned, if he pleaded guilty. If the applicant pleaded not guilty, he would be released on bail on a personal surety or the bail guarantee of a family member.

13. At paragraph 46 of its decision, the Authority noted that refugees and returning asylum seekers could face practical challenges upon a successful return to Sri Lanka. The Authority was not satisfied that these challenges amount to significant harm, or any other type of harm, that could be regarded as serious harm.

14. Accordingly, the Authority was not satisfied that the applicant met the requirements for refugee protection under s 36(2)(a) of the Act. Paragraphs 52 to 57 of the Authority’s decision deal with complimentary protection considerations. For the same reasons, the Authority was not satisfied that the applicant met the criteria for the grant of a visa under the complimentary protection requirements and s 36(2)(aa) of the Act.

    GROUNDS OF JUDICIAL REVIEW

15. The grounds of judicial review relied upon are set out in an application filed with the Court on 17 October 2019. They are as follows verbatim:

    Ground One

    The IAA erred when it was aware the applicant did not attend a SHEV interview [11] and accepted the Department made attempts to contact the applicant to ensure he was aware of opportunity to attend an interview [15], and when the IAA did not ensure the applicant was aware of his opportunity to attend an interview. As a result of said acceptance, the IAA decided not to take any action to get any new information under S 473DC of the Act, which decision thereby prevented the applicant from providing new information he did not provide at the SHEV interview.

    Particulars

    The Department attempted to contact the Applicant by letter and by telephone, but not by email which email was known to the Department and which had been used by the Applicant to contact the Department on several prior occasions, and which was available to use to contact the applicant to ensure he was aware of opportunity to attend an interview.

    Ground Two

    The IAA, knowing the Applicant had not attended the SHEV interview and had not been given the opportunity to give additional information to the Department, took no steps to take action to get any new information under S 473DC of the Act, thereby failing to properly review the Delegate’s decision as the IAA was required to pursuant to S 473DB.

    Particulars

    See 1 above

    The steps would have revealed the Department was aware of the Applicant’s email address and possibly his mail address.

    THE APPLICANT’S SUBMISSIONS

16. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter in the Tamil language.

17. Prior to the commencement of the Hearing, the Court ensured that the applicant was in possession of the relevant Court Books and that the first respondent’s written submissions, which he had been provided with, had been interpreted to him. The applicant was also provided with a pen and paper so he could take notes during the Court Hearing, should he wish to do so.

18. At the commencement of the Hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the process by which the Court hearing would be undertaken.

19. Despite Court orders, no written submissions were filed by the applicant in support of the grounds of judicial review outlined above. An Affidavit was provided in which the applicant claimed he had notified the Department of his change of address on 7 June 2019, which was after the date of the scheduled SHEV interview and the Delegate’s decision.

20. The applicant told the Court that he relied upon the material contained within his Affidavit and did not wish to expand further.

21. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he would like to say anything further in reply. The applicant stated that he had nothing further to add.

    THE FIRST RESPONDENT’S SUBMISSIONS

22. The first respondent initially notes that, in the applicant’s application for a protection visa;

    a.At CB25, the applicant signed a declaration which included that he undertook to inform the Department of any changes to his personal circumstances whilst the application was being considered and that he undertook to inform the Department if he intended to change his address for more than 14 days while the application was being considered.

    b.In relation to his answer to question 37 (CB31) the applicant wrote that his current address was “XX Myuna Crescent Seven Hills NSW 2147”. His current postal address was listed as the same address. The precise address of the applicant has been omitted to preserve the details of the applicant which might be used to identify him.

    c.In answer to question 39 (CB31) the applicant gave the mobile number “0470 XXXXX X”.

    d.In answer to question 40 (CB31), “do you have an email address?”, the applicant ticked the ‘No’ box.

    e.In answer to question 41 (CB31) “do you agree to the Department communicating with you by fax, email or other electronic means” the applicant ticked the ‘No’ box.

23. On 30 March 2017, the department sent an “Acknowledgement of a valid application” letter by post to the applicant at his Seven Hills address. On page 4 of that letter, the applicant was reminded of his obligation to inform the Department of any changes to his contact details and address.

24. On 10 April 2019, the Department sent an invitation to attend an interview to the applicant by post to the Seven Hills address. That letter was “return to sender” with a sticker that indicated the letter was “unclaimed”.

25. On 14 May 2019 the Delegate refused to grant the visa. The decision was posted to the applicant at the Seven Hills address. In that letter, it was noted that the applicant had not attended an interview and had not provided any further information in support of his application.

26. On 17 May 2019, following the matter being referred to the Authority for review, the Authority wrote to the applicant to advise the applicant of that referral. That letter was sent to the Seven Hills address. On 11 June 2019, the Authority affirmed the delegate’s decision.

27. The applicant does not challenge any aspect of the Authority’s reasoning, other than its determination not to exercise its power under s 473DC(3) of the Act to obtain new information from the applicant.

28. The first respondent notes the following, in relation to the Affidavit of the applicant affirmed 16 October 2019;

    a.The applicant claims that he changed his address “in 2018” but states that he did not notify the Department until he sent an email on 7 June 2019. The first respondent notes that four points fall from this. Firstly, the applicant failed to notify the Department of his change of address for at least six months, notwithstanding the documents given to him, set out above, as to the need to update the Department of any change of contact details.

    b.Secondly, the applicant only notified the Department of the change of address after the invitation to the Delegate interview had occurred, after the Delegate’s decision was made and after the referral to the Authority. The first respondent submits that the Department cannot sensibly be criticised for sending correspondence about the Delegate’s interview and decision to the Seven Hills address given that the applicant failed to notify that he had moved: (see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11]).

    c.Thirdly, the applicant states he “notified the Department”. The 7 June 2019 email, which the applicant relies upon, was sent on 7 June 2019, a Friday, at 6:40 PM. The Authority’s decision was made at 8.33 AM on 11 June 2019, a Tuesday. There was thus only a very short period of time after that email was sent and before the Authority’s decision was made.

    d.Fourthly, the first respondent submits that the 7 June 2019 email did not constitute an appropriate or proper update of the applicant’s contact information for the purpose of the visa application. The first respondent submits the email contained no reference to the applicant’s SHEV application and does not contain an express indication that the information in the email is provided in connection with his SHEV application. Further, the email was sent to the following address: “[email protected]”. The first respondent submits that it appears to have been sent by the applicant in connection with his bridging visa held by him. This, the first respondent submits can be ascertained by the “bve” part of the email which refers to Bridging Visa E, not the applicant’s SHEV application 

    e.Further, the applicant claims, in paragraph 6 of his Affidavit, that he had “earlier provided” the Department with his phone number and email address. However, the applicant does not state when he did so, nor does he explain how he did so. The first respondent submits that the applicant’s evidence is, without copies of that correspondence, amounts to no more than a general and unsupported assertion. Additionally, the applicant does not identify the context in which this occurred, being, for example, if he had provided his phone number and email to the Department in connection with this SHEV application or if he was providing details in relation to something else, such as his bridging visa. The applicant has adduced no evidence to show that, prior to the Delegate’s interview, the Delegate’s decision and the Authority’s decision, that he had clearly stated to the Department, and the Authority, that he did, in fact, consent to receiving email communications at all, let alone in respect to this visa application.

    f.Finally, the applicant states, at paragraph 7 of his Affidavit, that his phone number was the same until it was changed in about June 2019. The first respondent submits that there is thus no reason to doubt that, when the Department claims it rang the applicant’s telephone number on 26 April 2019, they were calling the correct number for the applicant. Notwithstanding this, the Department was unable to contact him.

29. In the light of the above information, the first respondent first notes that the Authority’s decision was made on 11 June 2019. The applicant only commenced proceedings in this Court on 17 October 2019. The applicant was thus 87 days outside the 35 day time limit imposed upon him by s 477(1) of the Act. It is submitted by the first respondent that it is not in the interests of the administration of justice for the Court to extend time, pursuant to s 477(2) of the Act.

30. The applicant states in his Affidavit that he first became aware of the Authority’s decision after receiving a copy of the decision, dated 11 June 2019, at his address in Toongabbie on 21 September 2019. The applicant claims that the decision was left in an envelope by persons unknown, near the front door of his residence.

31. The first respondent concedes that the applicant did receive a “copy” of the Authority’s decision in mid-September 2019, however, submits that the applicant did not receive the original decision in June 2019, because he failed to notify the Department, or the Authority, in a timely fashion of his change of address, as he had been repeatedly told to do so. As a consequence, the Authority sent its decision to the Seven Hills address, rather than the Toongabbie address, that the applicant claims to have been living at. It was submitted by the first respondent that the reason for the delay was not satisfactory.

32. Counsel for the first respondent, however, also appropriately conceded that the Minister would not suffer any specific prejudice by the grant of an extension of time. However, the mere absence of prejudice is not, of itself, sufficient to extend time: (see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]). Further, the first respondent submits that the applicant’s proposed grounds of review do not have sufficient merit to warrant the grant of an extension of time.

33. It was submitted that both of the grounds of judicial review are interrelated. The first alleges that the Authority “erred” because it was aware that the applicant did not attend the Delegate’s interview, but failed, pursuant to s 473DC of the Act to invite the applicant to attend the interview with the Authority to give new information. The particulars allege that the Department did not attempt to contact the applicant by email to ensure that he was aware of the opportunity to attend an interview. The second ground also alleges the Authority erred in not seeking new information from the applicant, pursuant to s 473DC of the Act, in circumstances where the Department was aware of the applicant’s email address.

1. While it is conceded that the Authority’s power in s 473DC(3) of the Act must be exercised reasonably: (see ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [3]), the Authority gave reasons why it determined not to exercise its power; including that the applicant had been repeatedly informed of his need to advise the Department of any change in his details. The Department wrote to the applicant inviting him to attend the interview and this was sent to his nominated postal address, together with the fact the Department attempted to contact the applicant by phone but was not successful. At paragraph 15 of its decision, the Authority concluded that the applicant was given an opportunity to attend a Departmental interview. It further observed that the Authority was required to pursue a limited review, which is “efficient, quick and consistent with Division 3 of the Act”. In these circumstances, the Authority decided not to seek new information pursuant to s 473DC(3) of the Act.

2. The first respondent submits that the Authority’s reasons for not so doing were clear, cogent and contained an evident and intelligible justification of its decision and contain no legal unreasonableness. The complaint that the Department should have contacted the applicant by email is without substance. The applicant did not consent in his visa application to that mode of contact taking place. There is no evidence to find that the communication he sent (allegedly) to the Department in “2017/8/9” was in connection with this visa application or had the effect that he did now consent to receiving emails. Secondly, it’s apparent that the Department did attempt to contact the applicant via the telephone numbers and postal address he had provided. It is entirely reasonable for the Department to use those in order to contact the applicant and to proceed on the basis that the applicant would keep the Department up-to-date of any change in his contact details.

   CONSIDERATION

3. The Court notes that an extension of time is required to be granted to the applicant in order for the Court have jurisdiction to hear the matter. The applicant claims that he did not receive a copy of the Authority’s decision until September 2019 and then lodged his application within a reasonable time period thereafter. Noting that the first respondent concedes that the Minister will suffer no prejudice, notwithstanding the delay, the Court is of the view that it is appropriate and in the interests of justice that an extension of time be granted and that the substantive matter to be heard on its merits. Accordingly the first Order of the Court will be that an extension of time, pursuant to s 477(2) of the Act is granted

4. The Court agrees with the first respondent, that each of the applicant’s grounds of judicial review are intertwined. In essence, the applicant complains that Authority proceeded to conduct a review without taking any action to get new information under s 473DC of the Act. This was in circumstances where the applicant had not attended a SHEV interview.

5. Section 473DB of the Act makes it clear that the Authority should review a fast track reviewable decision referred to it by considering the material provided to it under s 473CB of the Act without accepting or requesting new information (see: s 473DB(1)(a) of the Act) and without interviewing the referred applicant (see: s 473DB(1)(b) of the Act). Whilst the Authority may obtain new information under s 473DC of the Act, it is under no duty to get, request or accept any new information (see: s473DC(2) of the Act) and can only consider new information in exceptional circumstances (see: s473DD of the Act).

6. The Court is satisfied that the Authority appropriately considered whether or not it should obtain new information, noting that the applicant had not been interviewed by the Department in relation to his SHEV application, but declined to do so after noting that the applicant had been properly advised, at his last known address, of the details of the interview and that the Department had also attempted to telephone him.

7. The Court is not satisfied that there was any legal unreasonableness or other jurisdictional error by the Authority in not seeking to obtain new information, given that the applicant had not taken proper steps to advise the Department, or the Authority, of his change of address or updated contact details. This decision was within the legitimate decisional freedom of the Authority and was consistent with the provisions of the Act in relation to the conduct of reviews by the Authority with regards to seeking, or considering, of new information

8. In the circumstances, noting that the Authority made its factual conclusions based on the limited information that was available to it, the Court is satisfied that the factual findings made by the Authority were reasonably open to it based on the information it had before it. Those findings are not tainted by legal unreasonableness or other jurisdictional error.

9. The Authority properly considered the claims of the applicant in relation to his fears and noting the inconsistencies in the information before it, came to the conclusion that his claims could not be made out. The Authority properly considered the relevant country information and was of the view that the applicant would not face serious harm upon his return for any the reasons he outlined, together with the fact that he would be returning as a failed asylum seeker. The Court is satisfied that the Authority properly considered all relevant considerations as to whether not the applicant met the criteria under s 36(2)(a) of the Act for refugee protection and under s 36(2)(aa) of the Act in relation to complimentary protections.

10. Accordingly, the Court is not satisfied that ground one, or ground two, of the applicant’s Initiating Application reveal jurisdictional error. As the applicant was unrepresented, the Court carefully perused the Authority’s decision, but was unable to detect any jurisdictional error that was unarticulated by the applicant.

    CONCLUSION

11. The application is dismissed.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       10 March 2021