EJB17 v Minister for Immigration

[2018] FCCA 3883

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJB17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3883

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in failing to consider whether the applicant might face harm due to his father’s detention – whether the Authority had an obligation to provide the applicant with an opportunity to address the relevance of material before it – denial of procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CA, 473CB, 473DA, 473DB, 473DC, pt.7AA

Cases cited:

Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Applicant: EJB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3004 of 2017

Judgment of: Judge Smith

Hearing date: 30 November 2018

Date of Last Submission: 30 November 2018

Delivered at: Sydney

Delivered on: 30 November 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms K Morris, Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3004 of 2017

EJB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 5 September 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The applicant is a citizen of Sri Lanka who arrived in Australia on 17 November 2012 by boat and without a visa. On 12 April 2016 he lodged an application for protection visa. The claims that he made in support of that application are accurately summarised in [6] of the first respondent’s submissions which I will adopt for the purpose of these reasons:

   6.The applicant is an ethnic Tamil from Sri Lanka from the Trincomalee District (Eastern Province), who claims to fear harm of being killed or seriously injured by the Karuna Group who, it was claimed, had already threatened to kill him and had already harmed his family. The applicant’s claims can be summarised as follows:

   (a)due to his Tamil ethnicity he will be perceived to be connected, or be imputed with connections, to the Liberation Tigers of Tamil Eelam (LTTE) and will face harm, persecution and harassment from the Sri Lankan authorities in turn;

   (b)around 2002-2004 he was involved in protecting the Tamils in his village from Sinhalese attacks and helping the LTTE (though “not involved much in such efforts”);

   (c)he fled to Qatar on several occasions out of fear of being identified and killed by the Sri Lankan Army and/or Karuna Group, and members of that group subsequently obtained his identification details and visited his house;

   (d)his father was previously detained in 1985 on suspicion of LTTE involvement, his brother was killed in 2013 by unknown persons (but the applicant believed that this was done by the Karuna Group), and his friend was killed by the Karuna Group; and

   (e)he also fears harm as a failed asylum seeker who departed Sri Lanka illegally and would be returning from a Western country.

   (Emphasis in original, without alteration)

2. On 4 November 2016 a delegate of the Minister made a decision to refuse the applicant a protection visa. In the circumstances, the decision was then referred to the Authority for review under s.473CA of the Migration Act 1958 (Cth). The Authority exercised its power to obtain new information concerning the circumstances that might affect the applicant on return to Sri Lanka. By letter dated 14 June 2017 the Authority summarised the pertinent parts of that information and sent it to the applicant for comment. On 25 June 2017 the applicant’s solicitor and registered migration agent, Mr Sudarshan Tambimuttu, replied to the Authority’s letter attaching a number of documents. Mr Tambimuttu said, and I quote:

   ...

   The review applicant provided me several documents (in Tamil) and English translations of these documents. 

   The review applicant is unsure if these documents (which he states are pivotal to his claims) have been submitted previously to the delegate.

   ...

3. One of the documents, which was both in a language I assume to be Tamil and in English, was called a “Sri Lanka Police Message Form” dated 21 July 2016.  It stated:

   ...

   Please inform the undermentioned person to be present at the Criminal Investigation Department on 2016/07/27 at 9.00hrs for the purpose of obtaining a statement regarding a case now inquired by the Criminal Investigating Department and report back to me.

   ...

4. The name set out below that part of the document was a name which was not the applicant’s name and which did not, on my survey of the evidence before the Court, appear at all in any other document that was before either the Department or the Authority. In addition to those documents, a submission was sent to the Authority by Mr Tambimuttu on the applicant’s behalf as well as some further information. On 5 September 2017, the Authority made a decision to affirm the delegate’s decision.

5. In its reasons, the Authority first dealt with the further information provided by the applicant. 

6. In respect of some of the information, it was satisfied that there were exceptional circumstances to justify considering the documents that was necessary in order for the Authority then to consider the documents, given the provisions of s.473DC of the Act. In respect of the Police Message Form, the Authority said at [3]:

   ... The police message form was issued 21 July 2016 asking the police to contact a named person at an address in Mandaitivu to attend an interview in relation to a police investigation.  On its face the document is not relevant to the applicant or his protection claims.

7. The substantive findings and reasons of the Authority are summarised in [8] to [11] of the first respondent’s submissions which I adopt for the purpose of these reasons:

   8.The IAA[1] ultimately found that the applicant was not a truthful or credible witness, on the basis of the “significant changes, inconsistencies and implausibility in the applicant’s evidence” across the entry and arrival interviews, SHEV[2] application and SHEV interview. The IAA concluded that the applicant had “exaggerated embellished and fabricated aspects of his evidence to boost his claims/or protection”.

   9.In particular, whilst the IAA accepted that the applicant’s father had been detained in 1985 and the applicant had friends who were killed, it rejected the applicant’s claims that his brother was killed by the Karuna Group and that the Karuna Group has an interest in him or his whereabouts. The IAA further did not accept the applicant’s claims that the Sri Lankan authorities were interested in him or that he had previously provided assistance to the LTTE. It also did not accept the applicant’s claim that his uncle was involved in the LTTE and detained as a result. However, the IAA accepted that the applicant would be regarded by the Sri Lankan authorities as a failed asylum seeker who departed illegally. The IAA also accepted that the applicant and his family may have previously faced a level of hostility from the Sinhalese between 2002-2004.

   10.The IAA proceeded to have extensive regard to country information concerning the circumstances which the applicant would face if returned to Sri Lanka, in light of its earlier findings and the applicant’s claims (to fear harm as a young Tamil male from the Eastern province with imputed LTTE connections, to fear harm from the Karuna Group, and to fear harm as a returned failed asylum seeker who departed illegally). The IAA was not satisfied that the applicant would face a real risk of harm as an ethnic Tamil or that the applicant would be of adverse interest to the authorities or imputed with LTTE connections. The IAA was likewise not satisfied that the applicant would be of adverse interest to the Karuna Group. Finally, the IAA accepted that the applicant was liable to be charged and arrested upon return under the Immigration and Emigration Act, but was satisfied that this would not amount to “serious harm”, given its findings that the applicant was not of adverse interest to the authorities nor imputed with LTTE connections.

   11.On these bases, the IAA was not satisfied that the applicant was a person to whom Australia owes protection obligations by virtue of ss 36(2)(a) or 36(2)(aa) of the Act.

   (Emphasis in original)

   [1] Immigration Assessment Authority.

   [2] Safe Haven Enterprise Visa.

8. There are three grounds in the applicant’s application for review.  The applicant who appeared for himself at the hearing today was unable to expand upon those grounds although he said they had been translated to him.  They had been prepared by a solicitor called “Sudarshan”.  I note that there is no certification by the solicitor as required by the Act. 

9. The applicant submitted that if he goes back to his country he will face problems but he just cannot prove that now.  This Court is limited however, to determining whether the Authority’s position is affected by jurisdictional error.  The question of whether the applicant might face harm upon return to Sri Lanka was a question reserved by the legislation to the Authority, and for that reason, the applicant’s submission today does not assist the Court.  The first two grounds in the application may be dealt with together and I set them out below (without alteration):

   1.Ground 1 - The IAA failed to consider an integer of the applicant’s claim, which was made out on the facts.

   Particulars

   a.The IAA outlines the applicant’s claims at [7].

   b.The IAA accepted that the applicant’s father was detained for several months in 1985 on suspicion that he was involved with the LTTE [35].

   c.The IAA failed to consider an essential integer that the applicant had familial connections to an individual with imputed links to the LTTE.

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

   2.Ground 2 - The IAA failed to consider that the applicant was a member of a particular social group and if he would suffer harm if returned.

   Particulars

   a.That the applicant was a member of a particular social group of persons with imputed political links to the LTTE (father’s imputation of LTTE links)

   (Emphasis in original)

10. Essentially, they are that while the Authority accepted that the applicant’s father had been detained for several months on suspicion that he was involved with the LTTE, the Authority failed to consider whether the applicant might face harm as a result of that detention.  Only the first premise of that ground can be accepted.  At [35] of its reasons, the Authority explained that it did accept that the applicant’s father was detained for several months in 1985 and that that was on account of suspicion that he was a member of the LTTE.  However, the Authority did consider the impact upon that of the applicant’s claim to be a refugee and to otherwise satisfy the criteria for the granting of a protection visa. 

11. First, at [36], it found that the applicant was not at risk of harm for reason of any links to the LTTE or any imputed political opinion.  One of the express reasons given for that conclusion was that, while the applicant’s father was detained by the authorities in 1985, he was subsequently released without charge and it occurred more than 30 years ago. 

12. Secondly, in determining the risk that the applicant might face upon return as a failed asylum seeker and illegal departee from Sri Lanka, the Authority expressly took into account the fact that the applicant’s father had been detained in 1985: [47]. For those reasons, the first and second grounds of the application do not establish jurisdictional error.

13. The third ground is that the authority failed to clarify with the applicant the relevance of the police message form to his claims.  It is not entirely clear what this means.  I think, however, it is best understood as being an assertion that the applicant was denied procedural fairness, because the Authority came to a view about the relevance of the police message form without giving the applicant a chance to make any submissions about that issue.  Even if that argument were considered in light of the general law, it would fail. 

14. Generally speaking a decision-maker is not obliged, in order to afford procedural fairness, to indicate to a person what he or she thinks about that person’s evidence.  So long as the inference is drawn, or the conclusions arrived at in respect of that evidence are obvious, then it can proceed to make a decision without reverting to the applicant for further submissions: see, for example, Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. There is no question that the inference drawn by the Authority was obvious, given the fact that the document did not refer to his name or to the name of any person who appeared to have any relevance to the applicant’s claims.

15. In any event, the applicant did have an opportunity to present arguments about the relevance of the documents and took that opportunity.  It was submitted that the document was amongst those which were “pivotal” to his claims.  That said, the proceedings before the Authority are not governed by the ordinary principles of procedural fairness and it is well-established that what must be done in order to afford procedural fairness is governed by the statutory context in which the decision-making takes place.  The relevant statutory context is explained in [18] of the Minister’s submissions, which I accept, as far as they go.

16. The critical question for the Authority in respect of the police message form is, as noted in [18] in the first respondent’s submissions, that, as a general rule, the Authority must review the decision referred to by considering the review material referred to it under s.473CB without accepting or requesting new information and without interviewing the referred applicant. However, under s.473DC, the Authority may, and subject to later matters, consider new information. New information however, must be both information that was not before the Minister when the decision was made and also information that the Authority considers may be relevant. It was the second of these questions that the Authority was dealing with in [3] of its reasons.

17. By stating that the document was not relevant to the applicant or his protection claims, the Authority was explaining, in effect, that this was not new information within the meaning of pt.7AA of the Act and, for that reason, none of the provisions relating to new information applied to it. Given the over-arching principle in s.473DB of the Act and the express limitation of the natural justice hearing rule in s.473DA, there was no obligation on the Authority to give the applicant any further opportunity to address the relevance of this material. For that reason, the third ground must be rejected.

Conclusion

1. I am not satisfied that there is any jurisdictional error in the Authority’s decision and for that reason the application must be dismissed. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       15 January 2019