EHH17 v Minister for Immigration

[2018] FCCA 2144

FEDERAL CIRCUIT COURT OF AUSTRALIA

EHH17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2144

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Authority erred in relation to a non disclosure certificate, whether the Authority erred in not getting additional information concerning the applicant’s cousin, whether the Authority erred by failing to consider new information, whether the Authority erred by failing to alert the applicant to a new issue, or whether the Authority erred by overlooking a claim, considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 425, 473DC, 473DD

Cases cited:

AQU17 v Minister for Immigration [2018] FCAFC 111

BVZ16 v Minister for Immigration [2017] FCA 958

DBE16 v Minister for Immigration [2017] FCA 942

Minister for Immigration v Singh [2016] FCAFC 183

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

SZBEL v Minister for Immigration [2006] HCA 63

Applicant: EHH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2975 of 2017

Judgment of: Judge Driver

Hearing date: 7 August 2018

Delivered at: Sydney

Delivered on: 7 August 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application lodged on 26 September 2018 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,328 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2975 of 2017

EHH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 4 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 for protection and the Authority’s decision on them are set out in the Minister’s outline of submissions, filed on 14 May this year.   

2. The applicant is a citizen of Sri Lanka who on 9 May 2016 applied for a Safe Haven Enterprise Visa (SHEV).  The applicant claimed that if returned to Sri Lanka he would be harmed and/or killed by supporters of the Tamil Makkal Viduthalai Pulikal (TMVP) and by the authorities because he is a Tamil from the East who supported the Tamil Democratic National Alliance (TDNA) and would therefore be imputed with an anti-government political opinion. He also claimed harm on the basis that he departed Sri Lanka illegally and would be returning as a failed asylum seeker.

3. The applicant’s claims as advanced in his SHEV application and in his interview with the delegate were that he was a Tamil Hindu born in the Eastern Province of Sri Lanka. In provincial elections in 2008 the applicant’s cousin’s brother stood as a candidate for the TDNA. Candidates from a party aligned with the paramilitary group, the Karuna Group (the TMVP) also contested the election. During the election campaign the applicant was threatened by the TMVP. He was subsequently taken forcibly to a TMVP office, detained for two days and beaten. The TMVP later forced the applicant to work for them.

4. The applicant claimed that in 2008 he travelled to Dubai and then later to Oman. When he returned to Sri Lanka, the TMVP forced him to work for them again, including manual labour. The applicant then travelled to Australia in 2009, but returned once again to Sri Lanka in 2010. The applicant claimed that about two years after returning, that is about July or August 2012, he was again forced to work for the TMVP and he claimed that he was threatened. At this point the applicant decided to return to Australia and seek protection. The applicant claimed that since coming to Australia he had heard that supporters of the TMVP were asking his friends for his whereabouts.

5. On 11 November 2016 a delegate of the Minister refused to grant the applicant a visa.[1]

   [1] Court Book (CB) 137

6. On 25 November 2016 the applicant’s matter was referred to the Authority for review.[2]

   [2] CB 154

Authority’s decision

1. On 4 August 2017 the Authority affirmed the decision under review.[3]

   [3] CB 221

2. The Authority considered whether it could take into account various “new information” submitted to it by the applicant, including country information and a candidate registration. In respect to the candidate registration,[4] the Authority observed that no explanation was provided as to why the document could not have been provided prior to the delegate’s decision. The Authority was not satisfied there were exceptional circumstances to justify considering the candidate registration, as the applicant was sufficiently on notice as to the delegate’s concerns relating to his claimed involvement with his cousin’s political campaign in 2008.

   [4] addressed by the Authority at [6]; CB 223

3. The Authority was not satisfied the applicant met the requirements of the definition of refugee under s.5H(1) of the Migration Act 1958 (Cth) (Migration Act). The Authority accepted the applicant and his sports club had been engaged in low-level campaign support for the TDNA in 2008,[5] but it found anomalies in the applicant’s account and found implausible certain parts of the applicant’s claims concerning his targeting by the TMVP, in particular, that there was no information that the applicant’s cousin himself was targeted.[6] The Authority, by reference to country information, was not satisfied that the applicant was subject to any periods of forced labour by the TMVP or Karuna Group.[7]  The Authority also had concerns with the plausibility of the applicant’s claims to have returned to Sri Lanka having fled the TMVP twice, “but then to have taken up a leadership position in a TNA supporting club and engaging in election related activities with the TNA”.[8]

   [5] [14]; CB 226

   [6] [16]-[17]; CB 226

   [7] [19]; CB 227

   [8] [22]; CB 228

4. The Authority was not satisfied that the applicant’s low-level political support for the TDNA in 2008 caused him to be imputed with an anti-government political opinion or profile.[9]

   [9] [24]; CB 228

5. At [27]-[28][10], the Authority expressed its conclusions that it did not accept the applicant had engaged in political activities for the TNA in 2012.  It accepted he provided political support and engaged in low-level activities in connection with the TDNA campaign in 2008, but that this did not lead to him having a profile such as to attract adverse attention from the TMVP or Karuna group between 2008 and 2012.  It was not satisfied the applicant had engaged in any political activities in Australia. It found that it the applicant participated in political activity in the future in Sri Lanka, It would be of a low-level nature only.

   [10] CB 229

6. The Authority also took into account, but was not satisfied, that the applicant was at risk of harm for reason of his Tamil ethnicity;[11] or that he would suffer harm returning to Sri Lanka as a failed or returning failed asylum seeker or as a person who had departed Sri Lanka illegally.[12]

   [11] [29]-[32]; CB 230-231

   [12] [33]-[45]; CB 231-234

7. The Authority was not satisfied the applicant was a refugee as defined in the Migration Act, or that he was entitled to complementary protection under s.36(2)(aa).[13]

   [13] [50]-[55]; CB 235-236

The present proceedings

1. These proceedings began with a show cause application lodged on 26 September 2017.  The applicant required an extension of time for that application.  I granted that extension of time on 21 May 2018.  I also gave the applicant the opportunity to amend the application or to file additional material.  He has not taken up that opportunity.  The application contains five grounds with particulars:

   Ground 1

   The Applicant's case appears to be Singh affected, on the basis of claims put forward by the applicant, regarding his cousin [10] and the IAA being silent regarding the applicant's cousin who was the former head of the cricket board.

   Particulars

   a. In Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 ( 19 December 2016) their Honours at [42] and at [52] stated,

   ... the certificate has the immediate effect of diminishing an applicant's entitlement to participate fully in the review process. That is a sufficient interest to enliven an obligation of procedural fairness.

   …

   Mr Singh therefore had a sufficient interest to give rise to an obligation to afford him procedural fairness upon the issue of the certificate. In this case, that obligation required the Tribunal to disclose to him the certificate which had been issued.

   b.The applicant claimed that his cousin fled Sri Lanka in 2005, was granted protection and is an Australian citizen [10].

   c.The applicant claimed that he “replaced his cousin” who fled Sri Lanka in 2005.

   d. At [17] the IAA states “I consider implausible that rather than targeting the cousin directly, the applicant was abducted and targeted for his and the club’s role in supporting his cousin’s TDNA campaign”

   e. A fair reading into paragraph 17 of the IAA decision record appears to suggest that the IAA had in its possession information about either or both of the applicants' cousins. The fact that the IAA states that there is no information before me to indicate the applicant's cousin the TDNA candidate “was targeted in any similar manner to that claimed by the applicant”, raises questions that the IAA possibly under direction / a Ministerial certificate has been instructed not to provide information regarding either or both of the Applicant's cousins.

   f. The fact that the applicant replaced the cousin who fled Sri Lanka in 2005 and took over the “head of the cricket board” position and the fact that the IAA accepted that the applicant was abducted and targeted for his and the club's role in supporting the cousin who was involved in politics, would suggest that information (i.e. protection claims) about the applicant's cousin who fled Sri Lanka in 2005 who held the post of head of the cricket board until 2005 was a relevant consideration that the delegate and the IAA had access to which was not disclosed to the applicant.

   g.The onus is on the respondent to confirm that this matter is not Singh affected.

   h.More details to be provided once the court book is made available to the applicant.

   Ground 2

   The IAA failed to request from the department and consider the protection claims presented by the applicant's cousin who departed Sri Lanka in 2005, if this information was not provided by the department to the IAA.

   Particulars

   a.The applicant claimed that he replaced his cousin who fled Sri Lanka in 2005 and took over the “head of the cricket board” position from him.

   b.The applicant's cousin who fled Sri Lanka in 2005 was granted protection in Australia.

   c.At [17] the IAA states “I consider implausible that rather than targeting the cousin directly, the applicant was abducted and targeted for his and the club's role in supporting his cousin's TDNA campaign”

   d. If the applicant’s cousin held the same post as the applicant in 2005 and the IAA concluded at [17] that the applicant was abducted and targeted for his and the club’s role in supporting his cousin’s TDNA campaign, it is apt for the IAA to have considered the protection claims of the applicant’s cousin who fled Sri Lanka in 2005 now an Australian citizen.

   e. The IAA had power to request/get information, nothing prevented the IAA from requesting for this information.

   f. The IAA erred as it failed to request and consider relevant information concerning the applicant’s cousin who fled Sri Lanka in 2005.

   g. If in fact this information was in the possession of the IAA, it is submitted that the IAA committed legal error as this information that the IAA took into consideration was not put before the applicant, this amounts to a denial of procedural fairness.

   Ground 3

   The IAA fell into legal error by failing to consider the new information provided by the Applicant and in determining that there were no exceptional circumstances to justify considering the new information [6].

   Particulars

   a.The IAA committed legal error by failing to have regard to s473DD (b) of the Migration Act when considering if exceptional circumstances exists to justify considering the “a candidate registration” for the applicant's cousin who contested the local election in 2008.

   b.s473DD(b)(i) requires a “actual enquiry as to whether or not the new information could have been presented to the Minister” whereas s473DD(b)(ii) requires “an evaluation of the significance of the new info1mation in the context of an applicant 's claims more generally” See: BVZJ 6 v Minister for Immigration and Border Protection [20171 FCA 958, paragraph 57.

   c.Though at [6] the IAA accepted the “candidate registration” was “credible personal information”, it failed to evaluate the significance of the new information in the context of the applicant's claims against s473DD(b)(ii) criteria.

   d.When considering new information under s473DD the IAA adopted and applied an unduly narrow interpretation of the term “exceptional circumstances” and accordingly failed to consider all matters capable of constituting the circumstances of the applicant's case as exceptional: See: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958.

   e. If the respondent considered BVZ16 to have been wrongly decided, the applicant submits that the instant matter must be adjourned due to MIBP v BBS16 (NSD242 of 2017) until a final decision is made by the Full Court.

   Ground 4

   The IAA deviated from a positive finding made by the delegate without putting the applicant on notice.  See: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63

   Particulars

   a.The delegate accepted that the applicant may have felt strongly about political matters and local issues without being a member or formally being involved in any capacity in a political group.

   b.The delegate in essence accepted that the applicant had a strong political opinion or view and local issues.

   c.The IAA at [28] accepted that the applicant would particulate in political activities, however any such activity would be “low-level nature only”.

   d.The IAA failed to consider the risk of harm to the applicant on account of his strong political opinion or view.

   e.More details will be provided once the court book is made available.

   f.As the alleged ground is founded on SZBEL type error, the applicant would require sufficient time to obtain a transcript of the delegate's interview.

   Ground 5

   The IAA failed to consider if the process of “police investigations” as outlined at [34] would expose the applicant to serious/significant harm

   Particulars

   a.The IAA accepted that the applicant would be subject to police investigations [34].

   b.The IAA accepted that the police investigations “may involve interviewing” the applicant, contacting police in the local area, “contacting his claimed neighbours and family”

   c.The IAA was aware that one of the applicant's cousins fled Sri Lanka, claimed protection in Australia and was granted protection as he was found to engage Australia's protection obligations [10].

   d. The IAA failed to consider if during the procedure of the SL police contacting the applicant’s claimed neighbours and family adverse information regarding the applicant’s cousin who fled Sri Lanka in 2005 could/would emerge.  This is a real possibility of the applicant attracting adverse attention during the process of police investigations, which the IAA did not turn its mind to.

   (emphasis in original)

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the book of relevant documents (court book) filed on 13 December 2017. 

3. Only the Minister has filed written submissions in advance of today’s hearing.  I invited oral submissions from the applicant today.  A key concern of the applicant was that he has been unable to obtain documents, in particular, hospital documents, that, in his mind, would help to establish significant harm having been suffered by him previously.  He told me several times that he has been unable to obtain hospital documentation due to fear on the part of hospital staff.  Whether or not that is so, the fact is that the Authority did not have the benefit of documentation the applicant was unable to provide.  Accordingly, neither could such documentation have assisted me. 

4. The applicant is also concerned that while he may successfully clear Colombo Airport, he will experience problems at his home town of Batticaloa following his return.  That goes to the merits of the applicant’s claim for protection which are beyond the scope of this proceeding.  The applicant also referred to his claim based on the political activities of his cousin.  To the extent that it may be suggested that something was overlooked by the Authority, it is plain that the Authority accepted his cousin’s involvement in politics in 2008.

Consideration

1. The applicant was not able to advance any legal arguments in support of the grounds in his application.  In granting the extension of time, I took into account my view that Grounds 2, 3 and 5 in the application appeared to be arguable.  In relation to Ground 3, there have been some additional decisions made by the Full Federal Court since the extension of time was granted.  Counsel for the Minister, for example, took me to the very recent decision of the Full Federal Court in AQU17 v Minister for Immigration.[14] The Full Federal Court has, at [13] and [14] of that judgment, provided some clarification of the interpretation of ss.473DD(a) and (b).

   [14] [2018] FCAFC 111

2. In the third ground the applicant asserts that the Authority fell into error by failing to consider the new information provided by the applicant. The applicant appears to contend first, that the Authority failed to have regard to s.473DD(b), and secondly, that the Authority applied an unduly narrow interpretation of the term “exceptional circumstances” in s.473DD(a).

3. In the present case, the Authority dealt with the receipt of new information from [3] through to [9]. In particular, Ground 3 is directed at the Authority’s decision at [6]:[15]

   On 9 December the applicant provided what appears to be a candidate registration purportedly for the applicant’s cousin who he claims contested the local election in 2008.  No explanation has been provided as to why this could not have been provided prior to the decision but I accept that if genuine, it is credible personal information which may have affected consideration of the applicant’s claims.  However, I am satisfied that the applicant was sufficiently on notice as to the delegate’s concerns relating to his claimed involvement with his cousin’s political campaign in 2008.  I am not satisfied there are exceptional circumstances to justify considering this information.  I have nevertheless accepted the applicant’s claims relating to his cousin’s political campaign in 2008.

   [15] CB 223

1. It appears from that paragraph that the Authority accepted that s.473DD(b)(ii) had been satisfied. The Authority was not, however, persuaded that the requirement in subparagraph (b)(i) had been satisfied. The Authority also stated that it was not satisfied that there were any exceptional circumstances justifying considering the information. That appears to be a finding for the purposes of subparagraph (a).

2. The circumstances did not, in my view, require any deeper analysis by the Authority of the application of subparagraph (a), as it does not appear from the court book that any exceptional circumstances were advanced by or on behalf of the applicant in relation to the document in issue. I am not persuaded on the facts of this case that the Authority fell into jurisdictional error in its application of s.473DD. The Authority considered both whether the information could have been provided to the delegate (finding there was no reason as to why it could not have been provided), as well as whether it was credible personal information (finding, if genuine, that it was).

3. The applicant’s complaint that the Authority adopted an unduly narrow interpretation of the term “exceptional circumstances”, which term appears in s.473DD(a), arises from a decision of the Federal Court in BVZ16 v Minister for Immigration.[16]  In that case White J found that the Authority had fallen into error by treating as “decisive” of the question of the existence of exceptional circumstances its rejection of the applicant’s explanation for why he had not raised the new information earlier.

   [16] [2017] FCA 958

4. The Authority’s reasoning in the present case, including at [6], is different from that employed by the Authority in BVZ16.  The principal factor in the Authority’s reasoning in the present case for the absence of exceptional circumstances justifying consideration of the candidate registration was that the applicant was sufficiently on notice as to the delegate’s concerns relating to his claimed involvement in the 2008 campaign.  Further, contrary to the Authority’s approach in BVZ16, the Authority in the present case considered both paragraphs of s.473DD.

5. I otherwise agree with the Minister’s submissions in relation to the grounds of review.   

Ground 1

1. In the first ground the applicant appears to be asserting an error of the kind identified by the Full Court in the matter of Minister for Immigration v Singh[17] on the basis that he assumes (without foundation, and in any event, wrongly) that the Authority was acting on information in its possession, but undisclosed to the applicant for reason of the issue of a non-disclosure certificate.

   [17] [2016] FCAFC 183

2. I accept the Minister’s submission that, upon review of the relevant Departmental files, no non-disclosure certificates have been issued in relation to documents on files connected with the applicant’s SHEV application.

3. Addressing the applicant’s contentions in the first ground, it is unnecessary in understanding the Authority’s findings at [17][18] to infer that the Authority was in possession of information that was undisclosed to the applicant. The Authority observed that there was no information before it to indicate the applicant’s cousin had been targeted in a way similar to that complained of by the applicant, which was implausible considering that the applicant was being targeted due to his association with campaigning for his cousin.

   [18] CB 226

Ground 2

1. In the second ground the applicant asserts that the Authority failed to request from the Department and consider the applicant’s cousin’s protection claims.

2. As with the first ground, the applicant appears to misread [17] of the Authority’s decision record.  The Authority did not accept the applicant’s claim that he was abducted and targeted for his and club’s role in supporting his cousin’s campaign.  This is plainly the effect of its finding in the final sentence of the paragraph.

3. Further, whilst the Authority does have power to get information (s.473DC), it is a discretionary power.[19]  However in the present circumstances the protection claims of the applicant’s cousin did not, and could not, have had any bearing on the Authority’s assessment of the claims advanced by the applicant. The applicant does not articulate the relevance the cousin’s claims might have had on the assessment of the applicant’s protection claims, either by the Minister’s delegate, or by the Authority.

   [19] albeit one that needs to be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16, [21] (Gageler, Keane and Nettle JJ)

4. In respect of the applicant’s contention that the Authority might have been in possession of information relating to the applicant’s cousin’s protection claims, and failed to disclose it, there is no basis for the Court to infer that the Authority was in possession of such information. The applicant was not denied procedural fairness.

Ground 4

1. In the fourth ground the applicant asserts that the Authority “deviated from a positive finding made by the delegate without putting the applicant on notice” contrary to the principles in SZBEL v Minister for Immigration.[20]

   [20] [2006] HCA 63

2. The delegate at CB 140 stated that it accepted that “people can feel strongly about political matters and local issues without being a member [or] formally involved in any capacity and without knowing much about the values and principles that underpin political groups in Sri Lanka”.  It is not quite correct to suggest, as the applicant does, that the delegate found that the applicant personally felt strongly about political matters and local issues. The Authority in addressing the applicant’s political claims, found that the applicant if he involved himself in political activities in the future would only do so, as he had done in the past, at a low-level.[21] The delegate’s findings at CB 140 are broadly consistent with the Authority’s findings at [28].[22]

   [21] [28]; CB 229

   [22] CB 229

3. In any event, SZBEL was a case concerning procedural fairness in the context of a review under Part 7 of the Migration Act. There is no equivalent of s.425 in Part 7AA of the Migration Act. The principles in SZBEL cannot therefore be applied in circumstances where the Authority is under no duty to invite a fast-track applicant to a hearing.[23]

   [23] DBE16 v Minister for Immigration [2017] FCA 942, [59] (Barker J)

Ground 5

1. In the fifth ground the applicant contends that the Authority failed to consider if the process of police investigations referred to at [34] of the decision would expose the applicant to serious or significant harm. It appears to be suggested that if the applicant’s friends or neighbours were asked questions by police, information about his cousin would be divulged leading to a risk of harm. However the police investigations referred to at [34] were referred to by the Authority in the context of investigating officials needed to confirm the applicant’s identity and potential links to crime or terrorism, as a person who had been denied asylum, and who had departed Sri Lanka illegally.

2. The applicant’s claim is speculative and does not engage the Tribunal’s obligation to consider a claim that has squarely arisen on the materials before it.[24]  As the Full Federal Court said in NABE[25], the Tribunal, which may be extended to the Authority for present purposes, cannot be expected to engage in “constructive or creative activity” in order to discern a claim not expressly advanced by a review applicant. This is what the applicant’s argument requires the Tribunal to have done.

   [24] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

   [25] at [58]

Conclusion

1. I conclude that the applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error.  I will order that the application lodged on 26 September 2017 be dismissed. 

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  The applicant queried his liability to pay costs, but did not oppose a costs order.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,328 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  9 August 2018