ECH17 v Minister for Immigration

[2018] FCCA 529

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECH17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 529

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority adopted an unduly narrow construction of s.473DD of the Migration Act 1958 (Cth) – whether the Authority misconstrued its statutory task – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473CC, 473DA, 473DB, 473DD, 476

Applicant: ECH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2842 of 2017

Judgment of: Judge Street

Hearing date: 28 February 2018

Date of Last Submission: 28 February 2018

Delivered at: Sydney

Delivered on: 28 February 2018

REPRESENTATION

The applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 28 February 2018.

2. The amended application is dismissed.

3. The applicant to pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2842 of 2017

ECH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 21 August 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise 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 13 October 2012 as an irregular maritime arrival. The applicant participated in an irregular maritime arrival and induction interview on 31 December 2012. The applicant applied for a Safe Haven Enterprise visa on 26 February 2016.

3. The applicant was found to be a Tamil from Mutur in the Eastern Province who was an auto rickshaw driver. The applicant alleged sometime prior to his departure an Eelam People's Democratic Party (“EPDP”) member was murdered and the applicant alleged he was considered to be a suspect for that murder. The applicant alleged his wife wanted to leave Sri Lanka illegally by boat but that the boat venture did not take place. The applicant alleged that he had informed the Sri Lankan authorities of the boat venture and as a result the applicant faced harm from the Sinhalese people smugglers on return.

4. The applicant claimed to fear harm by reason of his ethnicity, real or imputed political opinion, by reason of his illegal departure from Sri Lanka and as a failed asylum seeker. On 25 November 2016 the delegate found the applicant failed to meet the criteria for the grant of a visa under the section.

The Authority’s decision

1. By letter dated 30 November 2016, the applicant was informed that the application for the protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and practice direction giving the applicant opportunity to put on new information and submissions. The applicant in fact provided two sets of submissions to the Authority that were referred to in the Authority's reasons.

2. The Authority in its reasons identified the background to the application for review. The Authority identified having regard to the material referred under s 473CB of the Act. The Authority referred to the two submissions and explained that insofar as they engage with the delegate's decision, the Authority did not regard that as new information and had regard to same.

3. The Authority identified however, that the second submission included two new claims. The first claim was that the applicant would continue to be politically active or wished to exercise his cultural rights as a Tamil in Sri Lanka and would likely face significant harm as a result. The second claim was that the applicant may be inclined to be more politically active if he were able to exercise such rights without fear of significant harm in Sri Lanka.

4. The Authority expressly identified these two new claims as being new information. The Authority was correct to do so. The Authority referred to the initial claims made by the applicant that were identified in the delegate's reasons. The Authority noted the applicant had not previously claimed that he was politically active in Sri Lanka or that he wanted to be more politically active or seek to exercise undefined cultural rights on return. The Authority noted that no explanation as to why these claims were not provided to the delegate had been provided and noted that these appeared to have been constructed after a decision of this Court that was subsequently reversed by the Full Court of the Federal Court of Australia on 10 November 2017.

5. The Authority made reference to what occurred at the protection visa interview and the applicant being given an opportunity to provide details of the events he claimed to be involved in. The Authority referred to the applicant being asked specific questions about each of his claims and that the delegate clearly outlined to the applicant the aspects of his claims that he had concern about and gave him an opportunity to respond. The Authority noted that the applicant provided responses and that the applicant was asked at the end of the protection visa interview whether he had anything else to add or whether he had put forward all his claims for protection. The Authority noted that the applicant was represented at the protection visa interview and that a post-interview submission was received from the same representative.

6. It was in those circumstances, the Authority was satisfied the applicant had an opportunity to present his claims to the delegate. The Authority referred to having regard to all the circumstances. The Authority was not satisfied that there were exceptional circumstances to justify considering this new information.

7. The Authority then referred to country information identified in the submissions. The Authority noted that the submission suggested that two of the documents were credible information that relates personally to the applicant if he was forced to return. The Authority noted that the documents could not have been provided to the delegate before the delegate made her decision and having regard to all the circumstances, was satisfied that there were exceptional circumstances to justify considering that new information.

8. It is apparent from the first submission provided by the applicant to the Authority that the first submission expressly addressed the issue of new information under a heading “Annexure New Information” and referred to a submission that the information should be considered as credible information and would relate personally to the applicant if he was forced to return to Sri Lanka and if it had been known, would have affected the consideration of his claims.

9. On a fair reading of the Authority’s reasons, the Authority referred to both limbs of s 473DD of the Act in its deliberations in respect of the new information. In the circumstances of the present case, there is no basis to find that the Authority adopted an erroneously narrow construction of s 473DD of the Act or failed to have regard to both limbs in relation to s 473DD of the Act. Further, it is not necessary for the Authority in relation to its adverse findings under s 473DD of the Act to give the applicant a further opportunity to comment or respond in circumstances where the nature of the review was confined by the terms of Part 7AA and in particular, the provisions of ss 473CC, 473DA and 473DB of the Act. The reasons of the Authority in relation to the new information cannot be said to be illogical or unreasonable.

10. The Authority identified the relevant law and set out the applicant’s relevant claims. The Authority found having regard to all the evidence, including the inconsistencies, evolution and implausibility of the applicant’s claims, the Authority was satisfied they were not true. The Authority did not accept that an EPDP member was abducted and murdered by a trishaw driver or drivers. The Authority did not accept that the applicant was suspected of having been involved in the murder of an EPDP member and the Authority did not accept the EPDP, police or unidentified persons sought the applicant’s whereabouts on suspicion of his involvement with the murder of the EPDP member. The Authority did not accept the applicant was requested by unidentified persons to report to the EPDP office. The Authority did not accept that since the applicant’s arrival in Australia his family was visited by the police and his house searched on the basis he was suspected of being involved in the murder of an EPDP member. The Authority did not accept the applicant’s wife moved homes to avoid being visited by the EPDP or the Sri Lankan authorities.

11. The Authority took into account the applicant’s explanations in relation to his claims concerning fear of people smugglers and was not satisfied that it sufficiently addressed the inconsistencies in the applicant’s evidence. The Authority found that the applicant’s evidence that Sinhalese people smugglers were only given information that the report was made by a person from Australia to be perplexing, given the applicant’s other evidence that he had personally told the police that it was his wife who was going to depart. The Authority found the theories and grounds advanced to be based on pure speculation and in the absence of any coherent and logical basis.

12. It was in these circumstances, that the Authority was satisfied that the claims were not true. The Authority did not accept that since the applicants arrived in Australia with the assistance of a Sinhalese people smuggler, his wife and children made arrangements for or sought to travel by boat to Australia. The Authority did not accept the applicant contacted Sri Lankan authorities and reported that his wife and children would be travelling to Australia and requested them to stop the boat. The Authority did not accept the Sinhalese people smuggler came to know that it was the applicant who had reported the boat venture to the Sri Lankan authorities. The Authority did not accept the applicant is of adverse interest to the Sinhalese people smuggler. The Authority did not accept that the applicant’s wife has been visited by the Sri Lankan authorities and questioned about her attempt travel by boat to Australia. The Authority did not accept the applicant’s wife moved homes to avoid being visited by the Sri Lankan authorities.

13. The Authority was satisfied that had the applicant been of adverse interest to the Sri Lankan authorities and paramilitary groups including Karuna for any reason, his overt work as a trishaw driver provided an opportunity for anyone who wished to harm the applicant to do so. The Authority found on the information before the Authority that it accepted that there have been reports of people being killed and disappearing during the civil conflict period. However, the Authority was satisfied that the applicant’s fear of suffering the same was unfounded, given his history and the lack of any adverse interest in him by the authorities or any paramilitary groups prior to his departure.

14. The Authority was satisfied that even if the applicant were to return to Sri Lanka and continue to work as a trishaw driver, there is no information to indicate that as a Tamil trishaw driver, the applicant would suffer harm, significant economic hardship or the denial of the capacity to earn a livelihood which would threaten his capacity to subsist or otherwise constitute significant harm. The Authority was not satisfied the applicant faces a real chance of harm as a Tamil trishaw driver on his return to Sri Lanka now or in the reasonably-foreseeable future.

15. The Authority found the applicant had no relevant profile as a Tamil trishaw driver and that he was not of adverse interest to the Sri Lankan authorities or paramilitary groups including the EPDP, Karuna group or a Singhalese people smuggler. The Authority was not satisfied the applicant faced a real chance of harm as a Tamil or because of any actual or imputed political opinion on his return to Sri Lanka now or in the reasonably foreseeable future.

16. The Authority referred to the applicant’s illegal departure and application for asylum. The Authority was satisfied the applicant had no profile such as would give rise to him being imputed with being involved in Tamil separatism or destabilising the Sri Lankan state on his return. The Authority was not satisfied the applicant faced a real chance of serious harm as an asylum seeker and who is returning from Australia now or in the reasonably foreseeable future.

17. The Authority found that the applicant may be charged under the Immigrants and Emigrants Act 1988 and found that the chance of the applicant being detained for more than a brief period is remote and accepted that if the applicant’s detention did extend to more than a day that it may occur in a Sri Lankan prison. The Authority was not satisfied that questioning, imposition of a fine and possible brief detention amounts to serious harm. The Authority found the Immigrants and Emigrants Act 1988 is not discriminatory on its terms and that it is not applied in a discriminatory manner or selectively enforced. The Authority was satisfied that the investigation, prosecution and punishment of the applicant under Immigrants and Emigrants Act 1988 would be a law of general application and would not amount to persecution for the purpose of s 5H(1) or s 5J(1) of the Act.

18. The Authority was not satisfied the applicant faced a real chance of serious harm in Sri Lanka as a Tamil asylum seeker who departed illegally, and is returning from Australia to Sri Lanka now or in the reasonably foreseeable future. The Authority found the applicant did not meet the definition of refugee in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria under s 36(2)(a) of the Act.

19. The Authority found there were 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 will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether or not the Authority’s decision was unlawful or unfair.

2. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the amended application would be dismissed with costs.

3. The Court explained that it would deal with the application to amend the application, then hear the evidence, then give the applicant an opportunity to put submissions, then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. The grounds in the amended application are as follows:

   1. The IAA adopted an unduly narrow construction of s 473DD by confining its determination of the new information to whether or not I provided an explanation in accordance with the Practice Direction No. I and in so doing, misconstrued its statutory task and constructively failed to exercise jurisdiction under s473DD.

   Particulars

   a. At paragraph 6 the IAA reasoned that a failure to provide an explanation was determinative of the matters set out in s473DD. In doing so, it constructively failed to exercise jurisdiction under s473DD;

   b. In determining whether the new information as identified by the IAA could be considered by it, s473DD required the IAA to determine whether there were exceptional circumstances to justify its consideration of the new information as well as determining whether it is satisfied as to why the new information was not and could not have been provided to the Minister before the Minister made its decision, or that the new information was credible personal information which was not previously known and had it been known, may have affected the consideration of the my claims; and

   c. Subsection 473DD(a) requires a consideration by the IAA of all relevant circumstances in determining whether there are exceptional circumstances that justify the consideration of the new information. The relevant circumstances include a consideration of the significance of the new information in the context of my claims and of its nature and probative value.

5. From the bar table, the applicant maintained that his life would be in danger if he were to return to Sri Lanka. The applicant also sought to take issue with the submissions of the first respondent that had been read to him. Nothing said by the applicant from the bar table identified any jurisdictional error.

6. For the reasons already given at [13] above, I do not accept that the Authority adopted an unduly narrow construction of s 473DD of the Act in determining whether or not there are exceptional circumstances to receive the new information. The Authority correctly identified the new information and on a fair reading of the Authority’s decision, in respect of the whole of the new information, the Authority took into account both limbs. In that regard, the Authority expressly referred to credible personal information in paragraph 8 of its reasons quite apart from the same topic having been expressly addressed in first written submission provided by the applicant.

7. There is no warrant in the circumstances of the present case to find that the Authority misconstrued its statutory task or failed to properly exercise its jurisdiction under s 473DD of the Act. Nor was the Authority required to give an opportunity for the applicant to comment or respond to the proposed determination in respect of s 473DD of the Act.

8. The Authority’s reasons expressly refer to taking into account all the circumstances and the Authority’s reasons reflect a focus upon the nature of the information that the Authority found there was not exceptional circumstances to justify considering the new information. In the circumstances, I am not satisfied that there is any jurisdictional error by the Authority as alleged in ground 1.

9. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  28 March 2018