Ebn17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 389
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EBN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 389
File number(s): MLG 1962 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 23 May 2022 Catchwords: MIGRATION – Immigration Assessment Authority – Protection visa – whether Authority failed to consider information provided after delegate’s decision – whether Authority erred when making finding relevant to s 36(2)(a) – whether Authority erred in assessing claims for the purpose of s 36(2)(aa) – whether there is jurisdictional error – no jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 473DC, 473DD Cases cited: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 17 May 2022 Date of hearing: 17 May 2022 Place: Parramatta Solicitor for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr Barrington ORDERS
MLG 1962 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EBN17
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:
23 MAY 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $7467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHRYES
INTRODUCTION
The applicant is a male citizen of Sri Lanka. The applicant arrived in Australia on 2 November 2012 as an unauthorised maritime arrival.
On 9 February 2016, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (“Protection visa”). On 8 December 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa.
The matter was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 31 August 2017, the Authority affirmed the delegate’s decision not to grant the applicant a Protection visa.
The applicant now seeks judicial review of the Authority’s decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
After setting out the relevant background, at paragraph 4 of the decision record, the Authority noted that it received on 2 January 2017 a submission from the applicant. The Authority was satisfied that this submission contained arguments rather than information and could be taken into account by the Authority.
However, this submission also included references to country information which were not before the delegate and which the Authority found, constituted new information. These reports were referenced to support arguments against the delegate’s findings. The Authority found that the reports related to matters which were at issue in the SHEV interview, were publicly available and preceded the delegate’s decision by several months. They also preceded the lodgement of the SHEV application. The Authority was not satisfied that these reports could not have been provided prior to the delegate’s decision. None of the reports were specifically about the applicant and the submission did not contain information which may be considered personal credible information. The Authority was not satisfied that the information fell within the terms of s 473DD(b)(i) or (ii) of the Migration Act 1958 (Cth) (“the Act”), nor were there exceptional circumstances to justify considering the information. The information was rejected.
At paragraph 7 of the decision record, the Authority set out the applicant’s written claims. They are as follows:
•The applicant was born in 1994. During the final years of the Civil War in Sri Lanka, he and his family were displaced. He was held in a refugee camp from April 2009 until 2011 and the Criminal Investigation Department (“CID”) would visit the camp looking for Liberation Tigers of Tamil Eelam (“LTTE”) people. The applicant was interrogated a number of times and threatened.
•In 2011, the applicant left the refugee camp and in January 2012 the authorities started to make enquiries. The applicant was interrogated about LTTE members and the location of weapons and bombs. The applicant was scared and left Sri Lanka in October 2012
•The applicant fears harm on account of this Tamil ethnicity, because of his brothers links to the LTTE and his imputed support of the LTTE. The applicant later corrected this to be his cousin’s links to the LTTE, not his brothers. Further, the applicant had fears because his aunt was a Major in the LTTE and his older cousin was a supply officer for the LTTE.
•The applicant also fears harm on account of his illegal departure from Sri Lanka because he is a failed asylum seeker.
At paragraphs 9 and 10 of the decision record, the Authority accepted the applicant’s identity and history as a Tamil Hindu from the Northern Province in Sri Lanka. The Authority accepted that the applicant and his family were displaced in 2007, and that between 2009 and 2011 they lived in a refugee camp.
At paragraph 15 of the decision record and onwards, the Authority accepted information provided that the applicant’s cousin was paralysed as a result of a shelling incident in March 2009. The Authority considered the applicant’s claims that his cousin had been a supply officer for the LTTE and in particular, that he assisted and looked after his cousin for two months from April 2009. The Authority noted the applicant had stated he was living in a refugee camp from April 2009 until 2011, yet the documentary evidence provided indicated that his cousin was admitted to a hospital in the Western Province, when the applicant stated he was living in a refugee camp in the Northern Province.
At paragraph 18 of the decision record, the Authority had concerns as to the authenticity of a letter provided from a hospital concerning an injury to the applicant’s father. This related to the date of the injury which was claimed to have occurred during the civil war.
At paragraph 21 of the decision record and onwards, the Authority had concerns that the applicant made no mention of his cousin and aunt being in the LTTE prior to his SHEV interview, given that he was represented at the application stage for his visa.
At paragraph 26 of the decision record, the Authority noted that there were other inconsistencies between the application for the Protection visa and information provided at the SHEV interview.
At paragraph 29 of the decision record, the Authority was prepared to accept the applicant was monitored and taken in for enquiries and questioning during the period January to August 2012. The Authority was not prepared to accept that the applicant was questioned once every 2-3 weeks given he was only 15 years old when the war ended. The Authority did not accept the applicant was harmed, beaten and threatened due to interest by the authorities in the applicant’s cousin without being detained or taken to a rehabilitation camp. The Authority was satisfied the applicant was of low level interest to authorities.
At paragraph 33 of the decision record, the Authority accepted the applicant’s aunt was a Major in the LTTE and died in 2000. There was no other evidence that the aunt caused problems for the applicant or any of his family members.
The Authority considered the applicant’s medical condition at paragraph 35 and 47 of the decision record, but found there was no evidence before it that the applicant would be particular risk on return to Sri Lanka for this reason.
The Authority accepted that the applicant may face discrimination in Sri Lanka as a Tamil but was not satisfied that this amounted to serious harm or a real risk a risk of serious harm.
The Authority accepted that the applicant would be identified as a failed asylum seeker who departed Sri Lanka illegally at paragraph 44 of the decision record. The Authority assessed that the applicant would not have an adverse profile on return and would not be an easy target for extortion by authorities.
As the applicant was an illegal departee, the Authority was satisfied that the applicant may be held briefly in detention. The conditions in which the applicant would be held did not give rise to serious harm. If the applicant pleaded guilty to illegally departing Sri Lanka, a fine would be imposed. Further, any action for departing Sri Lanka illegally was a result of a law of general application and did not amount to persecution. Considering all the applicant’s claims both individually and cumulatively, the Authority was not satisfied the applicant met the criteria for a Protection visa under s 36(2)(a) of the Act.
Relying on its previous findings, the Authority then went on to consider whether or not the applicant met the criteria under s 36(2)(aa) of the Act for complimentary protection. Although it accepted as a Tamil, the applicant was at risk of discrimination, harassment and monitoring, the Authority was not satisfied that this amounted to significant harm or that the applicant face a real risk of significant harm arising from generalised violence. Accordingly, the Authority found that the applicant did not meet the criteria under s 36(2)(aa) of the Act, and affirmed the decision under review.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are contained in an Initiating Application filed with the Court on 11 September 2017. They are as follows:
Ground One
The decision of the IAA is affected by jurisdictional error.
Particulars
a. The IAA has erred by not considering the country information re the treatment of Tamil returnees provided postdate the decision, as they were relevant to the question of how applicants who returned to Sri Lanka were treated re illegal departure and returned asylum seekers. The applicant can only refer to country information which draws the attention of the IAA that something adverse is happening to some returning asylum seekers and it is not about the applicant. Yet the IAA relies upon a DFAT report which is not specifically about the applicant but about a class of persons.
b. In relation to the fact that he will be a returning failed asylum seeker, the decision maker has erred when She concludes that there is not a real chance that any element in the process of screening these returnees will involve serious harm for the purposes of s.36(2)(a).
c. In considering whether there was a real risk of the applicant experiencing treatment involving “significant harm” for the purposes of s.36(2)(aa), the decision maker has stated that a person charged under the IAEA may in some instances be detained for several days and she then should have considered if she could be satisfied that any pain or suffering caused by severe overcrowding and poor and unsanitary conditions, should the applicant be remanded in custody, would be intentionally inflicted on the applicant, more so given his heart condition which needs regular medication, as required by the definition of cruel or inhuman treatment or punishment. In other words she should have evaluated the nature and gravity of the loss of liberty.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by a Tamil Interpreter. The applicant’s previous legal representatives withdrew from the matter on 8 February 2022.
The hearing was conducted via a video conferencing facility. Prior to the commencement of the hearing, the Court ensured that the applicant had possession of a copy of the relevant Court Books, and that the first respondent’s written submissions had been interpreted to him. The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing should he wish to.
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.
Despite Court orders, no written submissions or other material was filed in support of the application by the applicant. The applicant told the Court that he had not read the Authority’s decision due to his lack of English language skills. Further, all the papers had been with the applicant’s lawyer until the lawyer withdrew in February. The applicant was thus unable to comment on any aspect of the Authority’s decision.
In order to ensure procedural fairness the Court arranged for the entire Authority’s decision to be translated to the applicant by the Court appointed interpreter. The Court adjourned whilst this took place and resumed the hearing following this task being completed.
In his oral submissions, the applicant stated that he came to Australia seeking asylum and has been rejected. The applicant stated he was involved in looking after his cousin, who was an LTTE member and is fearful of returning. The applicant claimed there was a factual error in the decision in that he never visited his cousin while he was in hospital in Trincomalee. The applicant stated that only injured persons were taken to Trincomalee. He was not injured and was only 14 years old at the time.
The problem with the Authority was simply that they did not believe him. The applicant stated that the issue with the member of parliaments letter being undated was not really a problem.
At the conclusion of the first respondent’s oral submissions the applicant was asked if he wished to say anything in reply. The applicant answered that it was difficult for him to raise any error of law and that he would face severe harm if returned to Sri Lanka
THE FIRST RESPONDENT’S SUBMISSIONS
Counsel for the first respondent relied on his written submissions, noting that no material had been advanced by the applicant in support of his grounds of judicial review. Those matters raised by the applicant in oral submissions consisted of mere disagreement with the Authority’s decision and went only to the merits of the decision, not any jurisdictional error.
In relation to the grounds of judicial review, there was no error in the manner in which the Authority dealt with the new information provided to it. It properly went about its task by first correctly assessing the information against the criteria in s 473DD(2) of the Act prior to assessing the material against s 473DD(1) criteria of exceptional circumstances. No error arises.
In relation to the second particular, it appears to take issue with the Authority’s findings concerning the process of questioning and processing that the applicant will face at the airport upon return to Sri Lanka. The Authority accepted this may result in a brief period in detention but that this did not rise to the level of serious harm. The Authority found the applicant would be assessed as having no adverse profile and that, if he plead guilty, he would be required to pay a fine and released. It also considered that any legal action was as a result of a law of general application and did not amount to serious harm for the purposes of the Act.
It was submitted these findings were open to the Authority, and were made after careful consideration of relevant country information and the applicant’s circumstances. If anything, this particular seeks to challenge the merits of the findings of the Authority.
The third particular raises issues as to whether not the applicant would be subject to “significant harm” for the purposes of s 36(2)(aa) of the Act if he were detained in prison for several days in circumstances of overcrowding, poor and unsanitary conditions, more so given his heart condition.
It was submitted that the Authority expressly gave consideration to the fact that the application suffered from a heart condition but was not satisfied it was a vulnerability that would elevate the risk of harm: (see; para [63] decision record). The Authority concluded that the evidence did not indicate that there was “an intention to inflict pain or suffering severe pain or suffering or cause extreme humiliation”: (see; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [28] (“SZTAL”)).
The Authority’s findings in the present case were based in part on country information which indicated that Sri Lankan prison conditions did not meet international standards. There was otherwise no evidence before the Authority to establish that any relevant member of the Sri Lankan authorities actually and subjectively intended to inflict pain, suffering or humiliation by arresting the applicant at the airport or otherwise.
CONSIDERATION
The applicant relies on a single ground alleging jurisdictional error supported by three independent particulars. Those particulars appear to be separate grounds of alleged jurisdictional error.
Particular a. appears to take issue with the Authority’s refusal to exercise the power under
s 473DD of the Act to consider new information provided by the applicant to the Authority. That information appears to be country information which was publicly available and predated the delegate’s decision by several months.
The appropriate pathway for the consideration of new information under s 473DD of the Act was considered by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [11]-[12], where the following was said:
11. Logic and policy therefore demand that the authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s473DD(b)(i) and s473DD(b)(ii) and only then against the criterion specified in s473DD(a)…. If either the criterion specified in s473DD(b)(i) or the criterion specified in s473DD(b)(ii) is met, that is a circumstances which must be factored into the subsequent assessment of whether the new information meets the criteria specified in s473DD(a). If both the criterion specified in s473DD(b)(i) and the criterion specified in s473DD(b)(ii) are met, that too is a circumstance which must be factored in the subsequent assessment of whether the new information meets the criterion specified in s473DD(a) and which must heighten the prospect of that criterion being met.
12. The result, as has been recognised by the federal court in numerous other cases, is that the authority does not perform the procedural duty imposed on it by s473DD in the conduct of a review if it determines in the purported application of the criterion in s473DD(a) that exceptional circumstances justify consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s473DD(b)(i) and s473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified ins473DD(a)
In this case, at paragraph 5 of the decision record, the Authority followed the prescribed pathway in first assessing the information against both s 473DD(b)(i) and s 473DD(b)(ii) of the Act, prior to assessing it against the s 473DD(a) criteria of exceptional circumstances. The Authority properly determined that there was nothing that indicated that the material was not and could not have been provided to the Minister before the decision was made [s 473DD(b)(i) of the Act] and further that it was not personal credible information as it was only generalised country information and not personal to the applicant [s 463DD(b)(ii) of the Act]. Only then did the Authority consider if there were exceptional circumstances. No error exists in the way the Authority dealt with the information that was sought to be provided to it. The findings were open to it on an analysis of the information sought to be considered.
In relation to admitting the new information being updated DFAT country reports, that post-dated the delegates decision, although not specifically referred to, this information was admissible pursuant to s 473DC(1) of the Act in that it was information that was not before the Minister when the Minister made this decision and the Authority considered that it may be relevant. Further, the Authority found that there were exceptional circumstances under
s 473DD(a) of the Act to admit the information as it was not provided by the applicant.
Further, it is well-settled that the country information to which the Authority has regard and the weight it gives that information is a matter for the Authority: (see; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). Particular a. has no merit.
Particular b. complains in respect of the finding that there was not a real chance that any element in the process of screening returnees would involve serious harm for the purposes of
s 36(2)(a) of the Act. The Authority considered the applicant’s claim that he was at risk as a failed asylum seeker. At paragraph 35 of Authority’s decision, it specifically raised and considered the applicant’s heart condition but was of the view that due to the lack of medical information before it, it was not a matter it would consider further. At paragraph 43 of the decision record, the Authority considered new country information in relation to the treatment of Tamils within Sri Lanka. While accepting that the applicant would face discrimination, the Authority was not satisfied that the applicant had a profile which indicated he would be at risk of being detained upon return by operation of the Sri Lankan Prevention of Terrorism Act.
Paragraphs 44 through to 56 of the Authority’s decision are a detailed examination, based on country information, as to the risks to the applicant upon return as a failed asylum seeker. The Authority accepted that the applicant’s identity would be assessed and that he would be subject to various checks as to whether or not he had outstanding criminal matters or LTTE links. The Authority accepted that the applicant would most likely be prosecuted for committing an offence under the Sri Lankan Immigration and Emigration Act, for being an illegal departee. The applicant may be held for a short period of time, generally up to 24 hours, and be placed before a Magistrate. If the applicant pleaded guilty he would be subject to a fine. If the applicant pleaded not guilty, he would be most likely bailed on his own surety. Even having regard to the generally poor prison conditions, the Authority was not satisfied that the conditions would raise to the level of a threat to the applicant’s life or liberty, or to physical harm or ill treatment or otherwise amount to serious harm to the applicant. Further, as the applicant would be the subject of a law of general application, this would not amount to persecution.
In the circumstances, the Court is satisfied that these findings were open to the Authority on the evidence that was before it. They were made after a fulsome discussion of the various country information with reference to the applicant’s particular circumstances. Further, the findings are not subject to any procedural irregularity such as to give rise to jurisdictional error. Particular b. has no merit
Particular c. is a variation of a particular b. In that it complains that the Authority should have considered any pain or suffering caused by severe overcrowding and unsanitary conditions if the applicant was remanded in custody. Further complaint was made about the need for his heart medication.
As indicated above, the Authority expressly gave consideration to the applicant previously receiving medication treatment for a heart condition but was not satisfied that this would elevate the risk of harm. Further, the Authority was satisfied the evidence did not indicate that there was “an intention to inflict pain or suffering severe pain or suffering or cause extreme humiliation: (see; SZTAL). The Authority specifically took into account that the prison conditions in Sri Lanka did not meet international standards, however was satisfied that, due to the short duration of any period following his return until he was placed before a magistrate, did not meet the threshold required in SZTAL. Particular c, has no merit.
CONCLUSION
As the applicant was unrepresented at the hearing, the Court has perused the Authority’s decision but was unable to find any unarticulated jurisdictional error.
The application is dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 23 May 2022
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