EDP18 v Minister for Home Affairs

[2019] FCCA 1602

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDP18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1602

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s claims accepted in part but his fears found not to be well-founded – whether the Authority erred in the rejection of new information considered – factual error made by the Authority but it did not go to jurisdiction.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5J, 46A, 473CB, 473DC, 473DD, 473DE

Cases cited:

AQU17 v Minister for Immigration [2018] FCAFC 111

AUH17 v Minister for Immigration [2018] FCA 388

BRA16 v Minister for Immigration [2018] FCA 127

BZC17 v Minister for Immigration [2018] FCA 902

CHF16 v Minister for Immigration [2017] FCAFC 192

DYS16 v Minister for Immigration (2018) 260 FCR 260

Hossain v Minister for Immigration (2018) 92 ALJR 780

Minister for Immigration v BBS16 [2017] FCAFC 176

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v SZMDS (2010) 240 CLR 611

Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481

Applicant: EDP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2230 of 2018

Judgment of: Judge Driver

Hearing date: 11 June 2019

Delivered at: Sydney

Delivered on: 11 June 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Dennis of Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2230 of 2018

EDP18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 18 July 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are set out in the Minister’s initial outline of submissions filed on 11 April 2019. 

2. The applicant is a citizen of Sri Lanka, who arrived in Australia at Cocos (Keeling) Islands on 26 August 2012 and is an unauthorised maritime arrival.[1] The Minister subsequently 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 made an application for a temporary protection (Class XD) visa (TPV) on 9 July 2015, which was later withdrawn.[2]  The applicant subsequently applied for a Safe Haven Enterprise Visa (SHEV), which was received on 29 June 2017.[3]

   [1] Court Book (CB) 303

   [2] CB 217

   [3] CB 161

3. On 25 July 2017, the applicant attended a SHEV interview with the Minister’s Department. On 17 September 2017, the delegate refused to grant the applicant a SHEV.[4]  The delegate's decision was a “fast track reviewable decision” and was referred by the Minister to the Authority for review.[5]  On 18 July 2018, the Authority affirmed the decision under review.[6]

   [4] CB 303

   [5] CB 324

   [6] CB 398

Applicant’s claims

1. The applicant claimed to fear harm on account of his Tamil ethnicity, his Christian religion, his imputed support of (and links to) the Liberation Tigers of Tamil Eelam (LTTE), and as a failed asylum seeker and who departed Sri Lanka illegally. In support of those claims, the applicant recounted the following events:

   a)in 2000, the applicant’s brother went missing after he was taken away by the Sri Lankan Army (SLA) on his way to work in the paddy fields. This led to the applicant being a target of investigations by the Criminal Investigation Department (CID);

   b)in 2002, the applicant was detained by the LTTE for 16 days and beaten on suspicion of working with the SLA on the basis that the SLA had taken and was using the applicant's van for their purposes. After he was released, the SLA found out that the applicant had been with the LTTE, threatened and beat him. The SLA then monitored him on a monthly basis until 2004;

   c)in 2004, the applicant's two fishing boats were shot at and destroyed by the SLA after the applicant lodged a complaint about the usage of explosives by Sinhalese fishermen that were obtained from the SLA;

   d)in 2006, the applicant was involved in an incident where the SLA pushed him to the ground and fired a shot next to his ear as they suspected he was a supporter of the LTTE due to the van incident;

   e)the applicant subsequently went to Qatar for work for almost four years;

   f)on 2 July 2012, the CID attended the applicant's house whilst he was not there. They told his wife that he had to attend the CID office urgently. However, the applicant did not attend the CID office and instead fled Sri Lanka; and

   g)in August 2016, whilst in Australia, the applicant was involved in a serious work accident at a construction site in which he suffered a traumatic brain injury and significant medical issues.

Tribunal decision

1. The Authority was not satisfied that the applicant's father was killed by the authorities or that Sri Lankan authorities had or will impute the applicant with an adverse political opinion due to his father's death.[7] Whilst the IAA accepted that the applicant's brother disappeared in 2000, it was not satisfied that the SLA was responsible for his disappearance or that the applicant was subjected to any adverse interest from the CID or the SLA as a result of the disappearance.[8]

   [7] CB 401: [11]-[12]

   [8] CB 402: [13]-[14]

2. On the basis of the applicant's evidence at the SHEV interview, the Authority found that the incident where the applicant was pushed to the ground and had a shot fired next to his ear by a member of the SLA occurred before his father's death in 1995, rather than in 2006 as originally claimed. The IAA found that this was an “isolated incident which reflected the disproportionate harassment young Tamil male received during the conflict”.[9]

   [9] CB 403: [17]

3. Whilst the Authority accepted that the applicant's vehicle had been forcibly taken for use by both the SLA and the LTTE, it did not accept that the applicant was of any adverse interest to the Sri Lankan authorities when he last departed Sri Lanka in 2012.[10]

   [10] CB 404: [21]

4. Noting that the applicant had not claimed to have faced any difficulties in Sri Lanka in following both Hinduism and Christianity and that he did not claim to fear harm due to his religion, the Authority was not satisfied that the applicant faced a real chance of harm for reasons of his religion.[11]

   [11] CB 405: [26]

5. The Authority accepted that the applicant was seriously injured in a workplace accident in Australia in August 2016, which resulted in a traumatic brain injury and a shoulder injury.[12]  The Authority found that the evidence before it regarding the applicant's traumatic brain injury suggested that the applicant was making progress overall apart from the complication of seizure and that he has a “good prognosis”.  However, the Authority accepted that he cannot live independently, noting that most of his care needs are supervisory in nature, and that he will require ongoing medical assistance for his rehabilitation.[13]

   [12] CB 404-405: [23]

   [13] CB 405-406: [27]-[30]

6. Whilst the Authority accepted that the applicant may not be able to access the same standard of health care in Sri Lanka as he received in Australia and that the medical facilities in the East and North of Sri Lanka may not have the same standard as those in Colombo, it was satisfied that the applicant's needs could be met in his home area of Ampara or the nearby areas. The Authority was not satisfied that any limitations on access to health care, or the harm the applicant claimed to face due to his injury, amounted to serious harm and also did not involve systematic and discriminatory conduct such as to constitute persecution.[14]

   [14] CB 407-408: [31]-[37]

7. Although the Authority accepted that the applicant's fishing boats were destroyed, it did not accept that the SLA was responsible for it or that he was mistreated by the SLA or the CID because he lodged a complaint.[15]  The Authority was not satisfied that the applicant faced a real chance of harm as a result of his past fishing activities or if he were to continue his fishing business on return to Sri Lanka.[16]

   [15] CB 402-403, 408-409: [15]-[16], [38]

   [16] CB 408-409: [38]

8. The Authority was not satisfied that the Sri Lankan authorities considered the applicant to be a LTTE member or supporter when he left for Qatar or for Australia. Nor was it satisfied that the applicant would be perceived as a LTTE member or supporter. Having regard to its factual findings and country information, the Authority was not satisfied that the applicant would face a real chance of harm for reasons of any imputed political opinion or his religion in all of his accepted circumstances.[17]

   [17] CB 409-411: [39]-[49]

9. In relation to the applicant's illegal departure, the Authority found that any experiences or penalties the applicant would face on return to Sri Lanka would not amount to persecution for the purposes of s.5J. Notably, the Authority was not satisfied that there was a real chance that the applicant would be held in prison for a period longer than a few days or that he would receive a custodial sentence. Noting there was no credible information before it that the applicant would be denied medical treatment during the arrival process, the Authority was not satisfied that there was a real chance that the applicant would be denied medical treatment if he were to be detained or stay in prison for a short period. The Authority also found that the process and prosecution of the applicant did not involve systematic and discriminatory conduct and that the Immigrants & Emigrants Act is not discriminatory on its face or in its application or enforcement.[18]

   [18] CB 412-413: [50]-[54]

10. For those reasons, the Authority rejected the applicant's claims and found that he did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act.[19]  For the same reasons, the Authority found the applicant did not satisfy the complementary protection criterion.[20]  In this context, the Authority also made specific findings to the effect that the applicant would not face a real risk of significant harm on account of his traumatic brain injury[21] or his illegal departure.[22]

    [19] CB 413: [55]-[56]

    [20] CB 413-414: [59]-[61]

    [21] CB 413-414: [59]

    [22] CB 414: [61]

The present proceedings

1. This matter came before me for a show cause hearing on 18 April 2019. Although it did not appear to me that there was any legal merit in the grounds of the applicant’s show cause application filed on 10 August 2018, I considered that a question meriting a final hearing was whether the authority had acted in conformity with its obligations under s.473DD of the Migration Act. I therefore made a show cause order, being order 1 made on 18 April 2019 as follows:

   Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the question whether the Authority erred in its application of s.473DD of the Migration Act 1958 (Cth), in particular whether the Authority adopted an inappropriately narrow understanding of the phrase “exceptional circumstances” or whether the Authority overlooked the significance of the new information about the health of the applicant’s wife in relation to her potential role as a carer of the applicant in Sri Lanka.

2. I have before me as evidence the court book filed on 20 September 2018 and the short affidavit accompanying the applicant’s original show cause application.

3. At the outset of this morning’s hearing, the applicant complained about the continuing effects of medication he is taking for his medical condition.  He said that this might inhibit his ability to participate in today’s hearing.  I explained to him the procedural steps which had led to the case reaching this final hearing, and I explained the legal issues requiring resolution.  It was apparent that the applicant, even as an able-bodied self-represented litigant, would have struggled to deal with those issues.  His position is exacerbated because of his brain injury.  He was, however, able to participate in the hearing.

4. The applicant told me of further documents that he has which he was unable to submit to the delegate, but, on his account, he was provided with an opportunity to submit those documents after the delegate’s interview.  For reasons I do not understand and which the applicant was not able to clearly articulate, it appears that those additional documents were not submitted.  Nevertheless, as recounted by the Authority, and as set out in the decision of the Authority, from [3]-[6],[23] the applicant’s representative did make a submission to the Authority in particular about the applicant’s medical condition and also that of his wife.

   [23] CB 399

5. The Authority accepted that there were exceptional circumstances for considering the information furnished to it about the applicant and his medical condition.  The Authority took a different view in relation to the information proffered concerning the applicant’s wife.  The Authority declined to consider that information for the reasons set out at [6] of its decision:[24]

   The applicant now claims his wife is also suffering from poor health and also experienced seizures for which she has never been able to receive a definitive diagnosis. She herself requires substantial care from her mother who is now becoming increasingly frail and elderly as such she would not be in a position to care for the applicant. Although the applicant stated at the SHEV interview that his wife's mother and brother looked after his wife and children, the applicant did not previously claim that his wife had any medical condition. This claim is new information. No further detail was provided as to when the applicant's wife developed this medical condition, or whether it is a recent development. Nor was any medical evidence provided about her diagnosis and treatment. The applicant was represented at the primary level and his lawyer also attended the SHEV interview. It was clearly put to the applicant by the officer who conducted the interview that if his visa application is refused, he may not have another chance to provide further information. I am not satisfied there are exceptional circumstances to justify considering this new information under s.473DD(a). Nor has the applicant satisfied me as to either s.473DD(b)(i) or (ii).

   [24] CB 399

6. It is apparent that the Authority made a factual error in that paragraph.  The Authority stated that the applicant had not previously claimed that his wife had any medical condition, hence, the Authority treated that claim as new information.  In my view, the Authority was wrong in that characterisation.  In an addendum to his application for a protection visa, signed on 10 September 2015,[25] the applicant stated that his wife was unwell and that she was experiencing anxiety and depression.  It follows that the applicant had previously claimed that his wife had a medical condition, and it had been apparent for at least three years before the Authority made its decision. 

   [25] CB 127

7. If the Authority had regarded as determinative the availability of care and support from the applicant’s wife, the mistake could well have gone to jurisdiction because of the materiality of it.  The Minister maintains, however, that the error does not go to jurisdiction for several reasons.  First, the information provided to the Authority did include new information about the applicant’s wife’s mental condition, in particular the reference to seizures.  Secondly, at [33] of its reasons,[26] the Authority reasoned that the applicant would receive support from his family in Sri Lanka from siblings and children.

   [26] CB 407-408

8. It might be argued that if the Authority was aware of the full facts concerning the applicant’s wife, it might have reasoned differently because of the probable need for family members to divide their time between the applicant and his wife.  Nevertheless, when the Authority’s reasons from [32]-[36], are read in context, it is apparent that the decision did not simply turn on the question of available family support, it turned particularly on the question of whether access to public health facilities in Sri Lanka would be denied for any Convention reason, and, further, any lack of medical care would not constitute persecution as it would not be systematic and discriminatory conduct.

9. Further, when dealing with the complementary protection assessment at [59][27], the Authority reasoned that the lack of medical services in Sri Lanka, or the applicant’s lack of financial means, would not constitute a reason for the provision of complementary protection.  Those conclusions of a high degree of generality were open to the authority on the material before it, and I conclude that the mistake of fact made by the Authority is not material and, hence, does not go to jurisdiction.

   [27] CB 413-414

10. I otherwise agree with the Minister’s submissions concerning my show cause order. 

Part 7AA: “new information” and s.473DD(a)

1. The Authority had regard to the review material provided by the Secretary under s.473CB of Migration Act.[28]

   [28] CB 399: [2]

2. On 16 October 2017, the applicant's representative provided a submission to the Authority.[29]

   [29] CB 348

3. The Authority had regard to the submission.[30]  In dealing with “new information” in the applicant's submissions, the Authority made the following key findings:

   a)the requirements of s.473DD of the Migration Act were satisfied in relation to various medical reports;[31] and

   b)the requirements of s.473DD of the Migration Act were not satisfied in relation to the information which claimed that the applicant's wife would not be in a position to look after the applicant because she also suffers from poor health and has experienced seizures for which she has never been able to receive a definitive diagnosis;[32]

   [30] CB 399: [3]

   [31] CB 399: [5]

   [32] CB 399: [6]

4. The Authority’s review is to be undertaken by considering the “review material” provided to the Authority under s.473CB of the Migration Act without accepting or requesting “new information” and without interviewing the referred applicant. However, this “primary rule” admits of exceptions contained in ss.473DC, 473DD and 473DE of the Migration Act.[33]

   [33] Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481 at [22]; BZC17 v Minister for Immigration [2018] FCA 902 at [52]

5. Section 473DD of the Migration Act provides:

   Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

1. In relation to s.473DD(a) of the Migration Act, the Full Federal Court has held the Authority is not required “to be satisfied of the existence of a particular fact or facts”.[34] I accept that the Authority's inquiry under s.473DD(a) of the Migration Act is evaluative and the range of matters to which it may have regard is broad and unconfined by the terms of the section. Relevantly, there is no basis to suggest the Authority did not independently consider the requirements of s.473DD(a) in respect of “new information” or limited its consideration of “exceptional circumstances” to matters considered as relevant to the two limbs of s.473DD(b).

   [34] DYS16 v Minister for Immigration (2018) 260 FCR 260 at [17]

2. In particular, the Authority found that the applicant provided “new information” about his wife's medical condition. That information was contained in the applicant's submissions to the Authority provided on 16 October 2017. The submissions included the following information:[35]

   The delegate has cited that [the applicant] will be able to be cared for by his family, however very little exploration or consideration into his families [sic] circumstances was carried out. We strongly submit that [the applicant's] ability to be able to subsist would be severely compromised should he be returned to Sri Lanka. We have discussed with [the applicant] the possibilities that his family may be able to care for him on return. Our client has expressed significant reservation that they would be able to do so. He advises that his wife is also suffering poor health and also has experienced seizures for which she has never been able to receive a definitive diagnosis. She herself requires substantial care from her mother who is now becoming increasingly frail and elderly.

   [35] CB 357

3. While the applicant had previously claimed his wife was “unwell and she is experiencing anxiety and depression”,[36] the Minister submits the Authority was correct to characterise the applicant's submissions about his wife suffering “poor heath and…seizures' as 'new information”.  I disagree as outlined above.  Nevertheless, the Authority accurately recounted the substance of the claim and made the following findings:

   No further detail was provided as to when the applicant’s wife developed this medical condition, or whether it is a recent development. Nor was any medical evidence provided about her diagnosis and treatment. The applicant was represented at the primary level and his lawyer also attended the SHEV interview. It was clearly put to the applicant by the officer who conducted the interview that if his visa application is refused, he may not have another chance to provide further information.

   [36] CB 127

4. I accept that the Authority had regard to the content of the information and the applicant's circumstances and did not adopt an “inappropriately narrow understanding” of the phrase “exceptional circumstances”.[37]

   [37] AQU17 v Minister for Immigration [2018] FCAFC 111; cf. Minister for Immigration v BBS16 [2017] FCAFC 176 at [102]; CHF16 v Minister for Immigration [2017] FCAFC 192 at [44]

5. The applicant consistently claimed that his wife could not support him.[38] The new information about his wife's medical condition was submitted to further support that pre‑existing claim.  The Authority assessed the applicant's claims on that basis and found that he would have broader family support and access to medical care.[39]  In these circumstances, the Authority was not required to consider any “potential role as a carer” in assessing whether there were “exceptional circumstances” which justify considering the “new information”.

   [38] CB 202, 291

   [39] CB 407–408: [33], [35]–[36]

6. Moreover, the Authority had regard to the cumulative requirements of s.473DD of the Migration Act.[40] In addition to finding that s.473DD(a) of the Migration Act was not satisfied, the Authority made the following finding:[41]

   [40] Plaintiff M174/2016 at [31]; AQU17 at [13]

   [41] CB 399: [6]

   Nor has the applicant satisfied me as to either s.473DD(b)(i) or (ii).

7. The terms of s.473DD are such that there is no requirement for the Authority to consider s.473DD(a) before s.473DD(b) or vice versa. If, on the evidence, s.473DD(b) is not met then that is sufficient for the prohibition in s.473DD to be triggered.[42]  If one limb is not met, then the section as a whole is not met.

   [42] AUH17 v Minister for Immigration [2018] FCA 388 at [33]; BRA16 v Minister for Immigration [2018] FCA 127 at [26]

8. As the Court has found that the Authority was incorrect to have characterised aspects of the applicant's submission as “new information” the Minister submits and I accept that the error was not material to the Authority’s decision.[43]  This is because the applicant consistently claimed that his wife could not support him.[44]  It is apparent from the Authority’s reasons that it assessed the applicant's claims on that basis, finding that he would have broader family support and access to medical care.[45]  It is also because of the Authority’s more general findings at [32]-[36] and [59] as noted above.

   [43] Hossain v Minister for Immigration (2018) 92 ALJR 780 at [31]

   [44] CB 202, 291

   [45] CB 407–408: [33], [35]–[36]

The original grounds of review

1. I further agree with the Minister’s submissions in relation to the grounds of review advanced in the original show cause application to the extent that they have any continuing relevance. 

2. Ground 1 contends that the Authority “erroneously was not satisfied” that any limitations which the applicant may have on access to health care in respect of his brain injury are within the meaning of s.5J of the Migration Act[46] and that this conclusion was “unreasonable, irrational, against the weight of evidence”.

   [46] see [32]

3. Ground 2 contends that the Authority “erroneously was not satisfied” that any harm the applicant may face would amount to serious harm within the meaning found in s.5J[47] and that this conclusion was “unreasonable, irrational, against the weight of evidence”.

   [47] see [33]

4. Ground 3 asserts that the Authority “erroneously was not satisfied” that the applicant could not access medical care or medication that he requires including psychological help on return to Sri Lanka. The applicant further asserts that this conclusion was contrary to the opinion of Dr Nagy and that there was no material that suggests the facilities, treatment and care available anywhere in Sri Lanka would be capable of dealing effectively with a neuropsychological head injury.

5. Ground 4 contends that the Authority “erroneously was not satisfied” the applicant faces a real risk or a real chance of harm or that the process the applicant will go through upon return involves significant harm in circumstances where it is “highly unlikely” that there would be appropriate treatment should the applicant suffer a seizure in police custody.

6. Ground 5 contends that the Authority “erroneously was not satisfied” there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia, there is a real risk that he will suffer significant harm.[48]

   [48] see [61]-[62]

7. I accept that, in substance the applicant's complaints in all of his grounds of review demonstrate his dissatisfaction with the Tribunal's factual conclusions and seek to impermissibly cavil with the merits of the Authority’s decision. In particular, the Authority considered the applicant's claims and made dispositive findings in relation to his injury and medical condition,[49] and his illegal departure,[50] in the context of both the refugee and complementary protection criteria.

   [49] CB 407-408, 413-414: [31]-[37], [58]

   [50] CB 412-414: [50]-[54], [61]

8. These findings were sufficient to dispose of all the applicant's claims that were open to it for the reasons it gave. They are not ones at which “no rational or logical decision maker could arrive on the same evidence”.[51]  Nor did the Authority’s reasons lack an “evident and intelligible justification”.[52]

   [51] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130]

   [52] Minister for Immigration v Li (2013) 249 CLR 332 at [76]

9. There are humanitarian considerations in this case.  The applicant suffered a serious injury in Australia.  He will probably not receive the same standard of medical care in Sri Lanka which is available to him here.  His return will put additional pressure on his family to care for him and his wife.  The risk that flows from that deterioration of his circumstances which would be a necessary consequence of his removal from Australia is a matter which the Minister could give attention to if he was so minded.  It is, however, beyond the scope of this proceeding. 

Conclusion

1. I conclude that the applicant is unable to demonstrate that the decision of the authority is affected by any jurisdictional error.  It is, therefore, a privative clause decision, and the application must be dismissed. 

2. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $7,000.  That is below the amount prescribed under the Federal Circuit Court Rules 2001 (Cth). The applicant claims impecuniosity, but that is not a reason for the Court to refrain from making a costs order. The applicant also pointed out that he is currently being supported by a welfare agency. The circumstances, in my view, would warrant consideration by the Minister’s Department whether it was appropriate to enforce a costs order.

3. 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 $7,000.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  13 June 2019