Edm17 v Minister for Immigration
[2018] FCCA 1673
•26 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1673 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5H, 46A, 473CB, 473DB, 473DC, 473DF |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Minister for Immigration v SZLSP [2010] FCAFC 108 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Plaintiff M174/2016 v Minister for Immigration [2018] HCA 6 |
| Applicant: | EDM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2882 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr L Dennis of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2882 of 2017
| EDM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 23 August 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims and the Authority decision are set out in the Minister’s legal submissions.
The applicant is a citizen of Sri Lanka, who arrived in Australia on 28 August 2012 and is an unauthorised maritime arrival.[1] The Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa. The applicant subsequently applied for a safe haven enterprise visa (SHEV) which was received on 14 November 2016.[2]
[1] Court Book (CB) 154
[2] CB 40
On 21 June 2017, the delegate refused to grant the applicant a SHEV.[3] The delegate's decision was a “fast track reviewable decision” and was referred by the Minister’s Department to the Authority for review.[4]
[3] CB 154
[4] CB 169
The Authority had regard to the “review material” provided by the Secretary under s.473CB of the Migration Act.[5] The Authority found that the applicant's submission, dated 25 July 2017, addressed matters that were before the delegate and was not “new information”.[6] The Authority also acknowledged the applicant's request for an interview but did not exercise its discretion to invite the applicant to appear before it.[7] On 23 August 2017, the Authority affirmed the decision under review.[8]
[5] CB 203: [3]
[6] CB 203: [4]
[7] CB 203: [5]
[8] CB 202
Applicant’s claims
The applicant claimed to fear harm on account of his Tamil ethnicity, as an imputed supporter of the Liberation Tigers of Tamil Eelam (LTTE), and as a failed asylum seeker who departed Sri Lanka illegally. In support of those claims, the applicant recounted the following events:
a)in 2007, his father was detained and held in custody for four years on the basis of suspected links to the LTTE;
b)after his father's arrest, he was also detained for one night, interrogated, and beaten;
c)subsequently, authorities regularly visited his family home; and
d)in 2012, he was questioned by police and threatened by Muslims in relation to a land dispute involving his brother (a Tamil fisherman).
Authority decision
The Authority accepted much of the applicant's account including that he and his father were detained and his family were subsequently visited by the authorities regularly.[9] However, having regard to the prevalence of document fraud and other discrepancies, the Authority gave the applicant's corroborative material provided in support of his application no weight.[10] The Authority found that it was implausible that the authorities would still be monitoring the applicant and his family having regard to the time that had elapsed and country information.[11] The Authority found the applicant and his family were no longer of any interest to the authorities.[12]
[9] CB 205: [14]
[10] CB 205–206: [16]–[19]
[11] CB 206–207: [21]
[12] CB 207: [23]
Having regard to country information and the applicant's profile, the Authority did not accept he would face harm on account of his Tamil ethnicity, his father's arrest, or any imputed support of the LTTE.[13]
[13] CB 208, 211: [28]–[29], [53]
The Authority accepted the applicant's brother was involved in a land dispute between Tamil fishermen and Muslims.[14] However, having regard to inconsistencies in the applicant's account and country information, the Authority did not accept that the applicant was pursued in relation to that dispute.[15] The Authority accepted the applicant worked as a Tamil fisherman but found he would not face harm for that reason.[16]
[14] CB 208: [30]
[15] CB 209: [33]–[34]
[16] CB 209: [36]–[38]
The Authority found that the applicant would not face discrimination or economic hardship amounting to serious harm.[17]
[17] CB 209–210: [41]
In relation to the applicant's illegal departure, the Authority found that any experiences or penalties on return would not amount to serious harm and that he would face a “law of general application”.[18] The Authority did not accept the applicant would face harm as a failed asylum seeker.[19]
[18] CB 210–211: [47]–[49]
[19] CB 211: [51]–[52]
For those reasons, and considering the applicant's claims cumulatively,[20] the Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act.[21] For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion.[22] The Authority also found that the applicant would not face significant harm on account of his illegal departure[23] or discrimination.[24]
[20] CB 211: [53]
[21] CB 211: [54]
[22] CB 213: [60]–[61]
[23] CB 212: [58]
[24] CB 212–213: [59]
The current proceedings
These proceedings began with a show cause application filed on 15 September 2017. The applicant continues to rely upon that application. There are two general and unparticularised grounds in that application:
1.The Assessor failed to properly consider all of my claims
2.The Assessor didn’t give me a chance to comment on one aspect of my claims
It is supported by a short affidavit, filed with it, which I received.
I have before me as evidence also the court book, filed on 7 November 2017.
I invited oral submissions from the applicant this morning. He submits that the Authority failed to consider documents that he had provided. When I asked him for details, he referred me to his claim concerning his father, who had helped the LTTE. The applicant was not able to identify any particular unconsidered documents concerning that claim.
The Authority had accepted that the applicant’s father was arrested in India but had been acquitted in 2010. The Authority rejected a purported court document from India which suggested an ongoing court case. The Authority also rejected a claim that the applicant’s mother had been invited to report to an inquiry in relation to his father. In my view, all elements of the applicant’s claim were considered by the Authority.
The applicant then turned his attention to issues which appear to be new. The first concerns a civil court action over his family’s home. The second concerns a dispute over fishing rights which apparently erupted about four months ago. These appear to be issues which have arisen since the Authority decision. They could be matters that the Minister may wish to consider, if he were so minded. It is apparent that the applicant raised other issues concerning his status as a fisherman as part of his claims for protection, but they were considered by the Authority.
In his submissions in reply, the applicant asked for an adjournment so that he could retain a lawyer. I put to the applicant that he has already had sufficient time to arrange legal representation. He raised various difficulties, including illness, his lack of English, his apparent need to deal with his brother in Perth and his wish to find a lawyer who can speak effectively on his behalf. I formed the view that those matters, considered either singly or cumulatively, did not sufficiently explain the applicant’s failure to retain legal assistance to this point. Further, there is nothing in this case which calls for the provision of pro bono legal assistance. I refused the applicant’s adjournment request.
I agree with the Minister’s submissions concerning the grounds of review advanced.
It is well established that the onus lies with the party seeking to establish jurisdictional error.[25] In the absence of any particulars, the grounds of review in the application are meaningless.
[25] Minister for Immigration v SZLSP [2010] FCAFC 108 at [71]
The Authority understood and considered the applicant’s claims and evidence and made findings that were open to it. The Court cannot review the merits of the Authority’s decision.[26]
[26] Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35–36; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272
Further, in the circumstances of this case, the Authority was required to review the delegate’s decision “on the papers”.[27] The Authority’s procedural fairness obligations are exhaustively stated in Division 3 of Part 7AA of the Migration Act.[28] Under that statutory code, the Authority is to have regard to the “review material”[29] and can consider “new information” where it meets the relevant statutory criteria.[30] The Authority was not under any duty to “get, request or accept, any new information”, nor exercise its procedural discretion to invite the applicant to an interview.[31]
[27] Section 473DB of the Migration Act
[28] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 6 at [20]–[38]
[29] Section 473CB of the Migration Act
[30] Sections 473DC–473DF of the Migration Act
[31] Sub-section 473DC(2) and s.473DC(3)(b) of the Migration Act
Conclusion
I conclude that the applicant is unable to advance an arguable claim of jurisdictional error by the Authority. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 29 June 2018
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