ECJ17 v Minister for Immigration

[2018] FCCA 3228

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3228

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider the applicant’s claims – whether the Authority failed to exercise its powers under s 473DC of the Act – whether the Authority failed to give consideration to the applicant’s evidence – whether the Authority failed to take into consideration the applicant’s religion and ethnicity – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: ECJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 497 of 2017

Judgment of: Judge Street

Hearing date: 30 July 2018

Date of Last Submission: 30 July 2018

Delivered at: Perth

Delivered on: 30 July 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr P Macliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 497 of 2017

ECJ17

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 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 made on 18 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 was found to be of Tamil ethnicity from a particular village in the Batticaloa district in the Eastern Province of Sri Lanka. The applicant claimed to fear harm in Sri Lanka on the basis that he is on a special list of Tamil Muslims suspected of having connections with the Liberation Tigers of Tami Eelam (“LTTE”).

3. On 13 December 2016, the applicant lodged an application for a Safe Haven Enterprise visa. On 16 March 2017, the applicant attended at an interview with the Department and, because of a difficulty with an interpreter, it was then rescheduled to 30 March 2017. The applicant then attended a second interview with a different Tamil interpreter. On 7 April 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. On 13 April 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The applicant did provide submissions dated 9 August 2017, which were referred to and taken into account expressly in the Authority’s reasons. Included with the submissions was a statutory declaration by the applicant, taking alleged issue with the quality of the interpretation at the Safe Haven Enterprise visa interview. The Authority found that there was nothing to indicate that the delegate took the contents of the first Safe Haven Enterprise visa interview into account in making the decision and that the first interview has not been taken into account by the Authority. It was in those circumstances that the Authority was not satisfied there were exceptional circumstances to justify considering the new information.

3. The Authority referred to a suggestion that a document was included with the submissions which was not included. The Authority referred to a request in the submissions for the Authority to exercise powers to interview the applicant and the Authority found that it was not satisfied that it was necessary to do so in the circumstances of the present case.

4. The Authority summarised the applicant’s claims in evidence. The Authority accepted that the applicant worked as a fisherman at a particular village and that he would wish to continue to work as a fisherman if he returns to Sri Lanka. The Authority found the applicant’s account of his involvement in a protest in a harbour, as a result of which he claims to be perceived as being anti-government, was substantially at odds with the media report of the incident. Based on those inconsistencies, the Authority did not accept the applicant spoke at the meeting or that he would be perceived as anti-government by reason of his attendance at the meeting.

5. The Authority did not accept the applicant’s claim that a bomb was thrown at his house due to multiple inconsistencies with the applicant’s own evidence and between the evidence of the applicant and the affidavit of his wife’s and the police report. The Authority considered the applicant had fabricated these claims of a bombing to create a basis for a protection claims. The Authority placed little weight on the police report or on the wife’s affidavit, noting the prevalence of document forgery in Sri Lanka. In the circumstances where the applicant claimed in a statutory declaration that a bomb was thrown at his house in March 2012, the Authority did not accept that the applicant would have made a complaint to the police in which he stated the bombing took place on 24 June 2012. The Authority did not accept the applicant’s claim raised in his submission to the Authority that he would face persecution for a false police report.

6. The Authority noted country information that suggested the military restricts access to some of the more abundant fishing areas. The Authority did not accept the applicant would be unable to find work as a fisherman in Sri Lanka. The Authority did not consider the harm arising from any discrimination would amount to serious harm. The Authority did not accept that the applicant would face a real chance of serious harm in Sri Lanka because he is a Tamil fisherman.

7. The Authority did not accept the applicant faces a real chance of serious harm due to an imputed pro-LTTE or anti-Sri Lankan government political opinion due to being a Tamil or due to his past activities with the LTTE. The Authority, in making that finding, accepted that the applicant had been coerced to act as a delivery man for the LTTE between 2000 and 2004, and as a messenger between 2004 and 2005.

8. The Authority found the applicant’s ethnicity and past activities relating to LTTE were not now seen as sufficient to cause him to be of interest to the Sri Lankan authorities in circumstances where the applicant was Muslim, successive army groups have accepted that the applicant was helping the LTTE under duress, the applicant had no issues with the authorities since 2004, and he has family members who work for the Sri Lankan Government.

9. The Authority did not accept the applicant was a supporter of the Sri Lankan Muslim Congress and did not accept that he was troubled by the Karuna group or any other Muslim group.

10. The Authority considered whether the applicant would face any discrimination as a Tamil. The Authority was satisfied there was no evidence of official laws or policy to discriminate based on ethnicity or language. The Authority was not satisfied the applicant was subject to discrimination or economic hardship which would threaten his capacity to subsist or otherwise, or other treatment which would amount to serious harm.

11. The Authority accepted the applicant left Sri Lanka without a passport, contrary to the Immigrants and Emigrants Act (1948) (Sri Lanka). The Authority found the applicant would be charged and fined under that Immigrants and Emigrants Act (1948) (Sri Lanka) and then released. The Authority found the applicant was not likely to be imprisoned and that the imposition of a fine and surety or guarantee would not of itself constitute serious harm. The Authority found the applicant might be held in custody in poor conditions for a few days, but found this would not constitute serious harm.

12. The Authority found the provisions of the Immigrants and Emigrants Act (1948) (Sri Lanka) are laws of general application that apply to all Sri Lankans equally. The Authority was not satisfied the applicant faced a real chance of serious harm as a failed asylum seeker now or in the reasonably foreseeable future if he returns to Sri Lanka.

13. The Authority, referring to all the evidence, considered the applicant’s claims individually and cumulatively, as well as considering the applicant’s personal circumstances and was not satisfied the applicant has a well-founded fear of persecution for reason or a combination of reasons of his race, religion, nationality, membership of a particular social group and/or a political opinion now or in the reasonably foreseeable future, if he returns to Sri Lanka.

14. The Authority found the applicant failed to meet the requirements of the definition of “refugee” in s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

15. 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 will suffer significant harm.

16. 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. These proceedings were commenced on 13 September 2017. On 25 October 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on 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 that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that he could not go back to Sri Lanka and that his recollection of the events was not good because of the period over which that had occurred some time ago. The applicant also alleged that he was receiving particular treatment and that he needed to stay in Australia for that treatment. No issue of medical treatment was raised before the Authority by the applicant in relation to the applicant’s claims. An issue not raised before the Authority is not capable of giving rise to any error by the Authority. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the applications are as follows:

   Ground 1

   The IAA committed jurisdictional error by failing to consider the applicant’s claim of inadequate interpretation, or alternatively misinterpretation of facts and oral evidence of the client at the protection visa interview conducted by the Department of Immigration and Border Protection (DIBP).

   Particulars

   1. The interviewer said he would make available a Tamil Sri Lankan interpreter in the rescheduled meeting but instead he made available a Tamil interpreter from India.

   2. The delegate did not explain to the client that the inability of the first interpreter to interpret has nothing to do with the client and will in no way affect his assessment and decision of the client’s claim. The applicant did ask this question (just before the first interview ended) but the delegate did not answer him or alternatively the interpreter did not interpret the client’s concern to the interviewer.

   3. The delegate did not tell the applicant whether the content of the first interview will or will not be used in the assessment of the client’s claim.

   Ground 2

   IAA committed jurisdictional error when it failed to consider the applicant’s claim of denial of procedural fairness when his protection visa was refused by a delegate other than the interviewing officer.

   Particulars

   • The interviewer was Carlos however the delegate who delivered the decision was P.

   • The failure to conduct a fresh interview with the applicant as part of the protection visa assessment by the delegate who made the decision.

   • The applicant was not informed of the change of the decision maker.

   • The applicant’s credibility was crucial and because the decision maker did not see the client’s demeanour, the decision maker is not able to make any judgment on the client’s credibility. The applicant lost the advantage he may have gained if the decision maker had seen firsthand his demeanour which was crucial to assessment of evidence genuinely given and tendered.

   Impressions formed by a decision maker from the demeanour of an interviewee was an important aspect of the information available to the decision-maker. Therefore, assessing the claim in the absence of the benefit of an interview to the decision maker is procedurally unfair.

   Nicholas J said in WZARH v Minister for Immigration and Border Protection (2014) 230 FCR 130 at 148 [54]:

   "The one situation in which oral hearings are most often thought to be desirable is where questions arise as to a witness's credibility. An oral hearing will often assist in the resolution of credibility issues by allowing the decision-maker to interact directly with the witness by asking the witness questions, considering his or her answers, and having regard to the witness's demeanour."

   Ground 3

   IAA committed jurisdictional error when it failed to give due consideration to the evidence tendered.

   Particulars

   1. The claim that a hand grenade was thrown at his home and tried to kill him was not given due consideration.

   2. The applicant’s wife’s affidavit unreasonably not considered.

   3. The police complaint was wrongly held to be his own written statement and unconfirmed.

   4. Failure to consider if the police complaint is false that the applicant is likely to face persecution for false police report.

   Ground 4

   The IAA committed jurisdictional error when the IAA mistakenly held the applicant is of Tamil ethnicity when in fact he is a Muslim and applied the wrong test.

   Particulars

   The IAA mistakenly held the applicant is of Tamil ethnicity when considering the applicant’s discrimination claim.

   Ground 5

   The IAA committed jurisdictional error when it failed to consider the applicant’s claim that he witnessed the atrocities of the army personnel against the Tamils.

Ground 1

1. In relation to ground 1, it is apparent from the Authority’s reasons that the Authority disregarded the first interview that had taken place with the interpreter with whom the applicant had difficulties. The Authority also pointed out that the delegate disregarded what occurred at that interview. The applicant has put on no affidavit evidence identifying any material error by the interpreter on the second occasion in which the applicant was interviewed. The Court finds there is no basis to support the contention that there was an inadequate interpretation or that there was any misinterpretation of the facts or oral evidence of the applicant at the second interview in which the applicant was assisted by an interpreter.

2. The assertion by the applicant that he was asked questions from the delegate that were not responded to is not supported by any evidence. The Court is not satisfied that any jurisdictional error arises in the present case because of any problem with the interpreter before the delegate at the second interview. Insofar as ground 1 is to be understood in relation to the refusal of the Authority to take into account the statutory declaration, the Authority gave logical and cogent reasons consistent with the statutory requirements of s 473DD of the Act. There is no basis in the circumstances of the present case to find that the Authority failed to take into account both limbs of s 473DD of the Act.

3. Further, insofar as ground 1 seeks to agitate the Authority’s refusal to interview the applicant, the Authority gave reasons for why the Authority declined to exercise a power under s 473DC of the Act. The Authority was not required under the statutory regime in Part 7AA of the Act to interview the applicant before coming to the Authority’s independent decision on the review. Nor was the Authority required to accept the findings of the delegate. This is not a case where there is any new issue that was identified that required the Authority to give any other or further consideration to the exercise of the powers under s 473DC of the Act. The Authority’s decision not to exercise the powers under s 473DC of the Act cannot be said to lack an evident and intelligible justification. No jurisdictional error arises in relation to ground 1 of the application.

Ground 2

1. In relation to ground 2, this appears to be a complaint in relation to the refusal to conduct a fresh interview. The statutory regime identifies, under Part 7AA of the Act, that the Authority is intended, subject to the statutory provisions, to conduct a review on the papers. Insofar as ground 2 suggests that there was a change in the decision maker by the delegate, an error in the decision of the delegate does not of itself give rise to jurisdictional error by the Authority. Further, there is nothing in the identification of the letter notifying the applicant of the adverse decision by the delegate that supports the contention that there had been a change in the delegate that determined the applicant’s application at first instance. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the Authority’s reasons reflect taking into account and considering the applicant’s claims and evidence. The Authority expressly referred to the same, both in the course of the Authority’s reasons and in the adverse finding cumulative consideration in paragraph 50 of the Authority’s reasons. The Authority clearly had regard to the applicant’s claims concerning the hand grenade thrown at his house and, due to identified inconsistencies by the Authority which cannot be said to be unreasonable or illogical, the Authority did not accept the applicant’s evidence in that regard.

2. The Authority also had regard to the wife’s affidavit, however it is a matter for the Authority to determine what weight to give to the wife’s affidavit. The Authority also had regard to the police statement. The Authority identified the prevalence of fraud, as summarised above. It was a matter for the Authority to determine what weight to give to that report. The adverse finding by the Authority in relation to the applicant’s assertion that he would have made a complaint to the police that a bombing took place was logical, and the adverse finding by the Authority was reasonably open to the Authority for the reasons given by the Authority. No jurisdictional error is made out by ground 3.

3. Further, I accept the first respondent’s submission that, in substance, ground 3 invites this Court to engage in an impermissible merits review.

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 the applicant’s religion and the applicant’s ethnicity. The Authority’s reasons expressly refer to the applicant’s religion and the applicant’s ethnicity. The Authority expressly took this into account in the cumulative considerations as summarised above. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, there is no basis for the claim that the applicant feared harm by reason of witnessing particular acts during the civil war. No such claim fairly arose on the material before the Authority. A claim that has not been raised and that does not fairly arise on the material before the Authority cannot give rise to any jurisdictional error. No jurisdictional error is made out by ground 5.

Conclusion

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

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 November 2018