Ekq17 v Minister for Immigration

[2018] FCCA 2767

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2767

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.5J, 422B, 425, 473DC, 473DD, 473DE

Cases cited:

DGZ16 v Minister for Immigration [2018] FCAFC 12

Minister for Immigration v CRY16[2017] FCAFC 210

SZILQ v Minister for Immigration(2007) 163 FCR 304

Applicant: EKQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3049 of 2017

Judgment of: Judge Driver

Hearing date: 25 September 2018

Delivered at: Sydney

Delivered on: 25 September 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Hooper of Minter Ellison

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), 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 $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3049 of 2017

EKQ17

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 September 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s legal submissions. 

3. The applicant is a male citizen of Sri Lanka.[1]  He lodged a Safe Haven Enterprise Visa (SHEV) application on 30 September 2016.[2]  The applicant claimed to fear harm for reason of his ethnicity as a Sri Lankan Tamil speaking Moor, his Muslim religion, his political opinion as being opposed to the Sri Lankan regime because of his political activities in Australia, and his membership of the particular social group failed asylum seekers.[3]

   [1] Court Book (CB) 82

   [2] CB 32

   [3] See CB 117 and 72

4. The applicant attended an interview in relation to his SHEV application on 7 February 2017 and, on 21 February 2017, the applicant's representative provided a post-interview submission and supporting material.[4]

   [4] CB 114

5. On 27 February 2017, the delegate refused the applicant's SHEV application.[5] 

   [5] CB 151

6. The delegate's decision was referred for review by the Authority.  On 4 September 2017, the Authority affirmed the delegate's decision.  The Authority acknowledged[6] the applicant's written submission received on 21 March 2017.  The Authority found that aspects of the submission did not constitute “new information” and had regard to them.[7]  The Authority identified that the submission also included an extract from an item of country information.[8] The extract was undated, and no explanation was given as to why the extract could not have been provided prior to the delegate's decision, or why it was credible personal information. The Authority found it was not satisfied as to the matters in s.473DD(b) of the Migration Act 1958 (Cth) (Migration Act). Nor was the Authority satisfied that exceptional circumstances existed to justify considering this new information.

   [6] At [4]

   [7] At [4]

   [8] At [5]

7. The Authority identified the applicant's claims.[9]  It concluded that the applicant did not face a real chance or real risk of serious or significant harm as a result of his being a Sri Lankan Moor, Sunni Muslim, or a failed asylum seeker.[10] The Authority disregarded certain conduct of the applicant in Australia pursuant to s.5J(6) of the Migration Act.[11]  It considered this conduct in the context of assessing the complementary protection criterion,[12] finding that it was not satisfied that there was a real risk of significant harm to the applicant arising as a result of his activities. 

   [9] At [6]

   [10] At [33]

   [11] At [24]

   [12] At [34]

The present proceedings

1. These proceedings began with a show cause application lodged on 3 October 2017.  The applicant now relies upon an amended application filed on 1 February 2018.  There is one particularised ground in that application:

   1.The IAA acted unreasonably in failing to put its findings of fact and credibility that were not consistent with the findings of the delegate to me for comment.

   Particulars

   a.At pages 5-6 and 9 of the delegate's decision record, the delegate accepted that I participated in a protest in Australia and I used my Facebook account to raise awareness about the plight     of Sri Lankan Muslims;

   b.The delegate did not make a credibility finding against me;

   c.At paragraph 24 of the IAA decision and reasons, the IAA not only made a credibility findings but also made a finding under s5J(6) of the Act to disregard my conduct in Australia; and

   d.The IAA did not exercise its discretion under s473DC(3) of the Act to put these new findings/new information to me for comment and thereby acted unreasonably.

2. The applicant told me that he had received legal assistance in the preparation of that amended application.  He has not, however, instructed any legal practitioner to represent him in these proceedings.

3. In addition to the amended application, the applicant relies on the affidavit accompanying his original application filed on 3 October 2017.  I received that affidavit.  I also have before me as evidence the court book filed on 9 January 2018. 

4. Only the Minister filed written submissions in advance of today’s hearing.  I invited the applicant’s submissions orally in relation to the amended application.  He was unable to advance any arguments.  That is understandable, because the issue raised is highly technical.

5. The applicant's sole ground of review alleges that the Authority acted unreasonably in failing to put to the applicant its findings of fact in so far as they were not consistent with the findings of the Minister’s delegate.  The particulars to this ground assert that:

   a)the delegate accepted that the applicant participated in a protest in Australia and used his Facebook account to raise awareness of the plight of Sri Lankan Muslims;

   b)the delegate did not make a credibility finding against the applicant;

   c)at [24] of its reasons, the Authority made credibility findings and a finding pursuant to s.5J(6) of the Migration Act; and

   d)the Authority did not exercise its discretion under s.473DC(3) to put these “new findings/new information” to the applicant for his comment and therefore acted unreasonably.

6. It should be noted at the outset that none of the applicant's particulars identify any “new information” as defined by s.473DC(1). The only new information the Authority had before it was from the applicant himself. The Authority's s.473DE obligations were accordingly not enlivened.

7. I discussed with the applicant the procedural differences between the Authority and the Administrative Appeals Tribunal.  I explained to the applicant that, while the Tribunal may frequently be required to ensure that an applicant understands the dispositive issues in a review, the Authority is in a completely different position.  Not only is the Authority not required to conduct an oral hearing if it is unable to make a favourable decision on the papers; it is generally prevented from doing so.

8. In the circumstances, much of the jurisprudence concerning the procedural fairness obligations on the Tribunal is inapplicable to the Authority. It may be that in a particular case where the Authority’s approach is fundamentally different to that of the delegate, it would be unreasonable for the Authority to not invite comment or information from an applicant. This is not such a case. The differences in approach as between the delegate and the Authority are relatively minor. Both focused in part and relevantly on the applicant’s activities in Australia. While the delegate was content to find that those activities did not support the claim for protection, the Authority took the view that the activities were engaged in solely to enhance the applicant’s claims for protection. The Authority found that it could not take those activities into consideration pursuant to s.5J(6) of the Migration Act. As was pointed out by the solicitor for the Minister, however, the Authority did take those activities into consideration in dealing with the complementary protection criteria.

9. In my view, there is no viable argument of unreasonableness as advanced in the amended application. 

10. I otherwise agree with the Minister’s submissions on the ground of review advanced.

11. The Minister construes the applicant's ground of review as alleging that the Authority unreasonably failed to consider the exercise of its discretion in s.473DC(3), and/or unreasonably failed to exercise that discretion by inviting the applicant to provide it with new information. Specifically, the applicant relies upon the differences in the findings made by the Minister’s delegate, and the Authority, with respect to the applicant's conduct in Australia.

12. The delegate considered this aspect of the applicant's claims, including at CB 156.  The delegate accepted that the applicant participated in a peaceful protest in Canberra in June 2014.  The delegate found there was no indication, and the applicant did not claim, that he had taken part in any other public demonstration of his political opinion.  Nor was he associated with any political group. 

13. The delegate also accepted that the applicant had put a photograph of his attendance at the protest on his Facebook account.  The delegate recorded the applicant's claim that he used his Facebook page to raise awareness about the Sri Lankan Muslim plight and regularly received abusive messages and threats from Singhalese persons, through comments on Facebook.  The delegate found that, although there was no evidence before the delegate that the applicant was active on social media over a longer period of time, the delegate accepted that the applicant may have received some abusive comments on Facebook, as well as positive comments.  The delegate found that there was no evidence to indicate that the applicant had suffered any harm due to his comments.  The delegate found:[13]

    While I accept that groups such as Bodu Bala Sena use social media to spread their racial views, I am not satisfied there is likelihood the applicant will be subject to serious harm by this group due to his comments on Facebook. Even if he continues to use social media occasionally as he did in Australia, it is reasonable to expect that the applicant will take precautions in respect to disclosing his identity and whereabouts. I consider the likelihood that the applicant will be identified and seriously harmed by Bodu Bala Sena, if he were to return to Sri Lanka, as a person who participated in the protest against the killing of Sri Lankan Moors that took place in Canberra in June 2014 to be remote.

    [13] CB 158, quoted without correction

14. The delegate considered the applicant's claimed fear of harm because of his political opinion as someone opposed to the Sri Lankan regime, on account of his political activities in Australia.  The delegate stated:[14]

    The applicant claims that his participation in the protest against the killing of Sri Lankan Moors, in Canberra in June 2014, would bring him to the adverse attention of the Sri Lankan authorities. While I accept that the applicant participated in the protest in June 2014, I consider that such activity is not necessary to come to the adverse attention of the authorities in Sri Lanka, particularly not after the Rajapaksa’s government lost power in 2015. The above cited country information indicate that the 2014 riots against Muslims were condemned in Sri Lanka and the worldwide. The applicant has not taken part in any other public demonstration nor has he criticized the current government. There is no indication that the applicant was a person of adverse interest to the authorities when he was in Sri Lanka and there is no reason to believe that his mere attendance to the peaceful protest in Canberra would put him at the risk if he were to return to Sri Lanka. On this basis, I am not satisfied that there is a real chance that the applicant would face persecution at the hands of the Sri Lankan authorities for the reason of his political opinion in the foreseeable future upon return to Sri Lanka.

    [14] CB 159, quoted without correction

15. The Authority's reasons of relevance to the applicant's conduct in Australia are as follows:[15]

    The applicant has claimed that since he has been in Australia, he participated in a protest in July 2014 against the killing of Sri Lankan Moors. He said that it was held in front of Parliament house and the Sri Lankan Embassy in Canberra and that it was reported in the media in Sri Lanka. The applicant has submitted a photograph of himself holding a “Sri Lanka! Stop Genocide of Muslims” sign. The photograph does not show the location of the applicant. He has also provided a screenshot of his Facebook account which he claims that he uses to raise awareness about the situation of the Moors in Sri Lanka and that he has received a lot of abuse from Sinhalese through comments on his Facebook. The screenshot is of a comment he made that is untranslated with a response from a person of an emoji of a cartoon dog crying. The post is dated 14 November 2016 some nine months following his SHEV interview.

    I accept that the applicant participated in a protest against the killing of Sri Lankan Moors in Sri Lanka in 2014 and that more recently he posted a comment on Facebook. The post on Facebook is untranslated and I am unable to ascertain what it says. Even if I were to accept that the Facebook post was written to give awareness regarding Sri Lankan Moors, given my above credibility concerns I am not satisfied that the applicant participated in the protest and posted on Facebook otherwise than for the purpose of strengthening his protection claims and I have disregarding this conduct pursuant to s.5J(6) of the Act.

    (footnotes omitted)

    [15] [23]-[24]

16. I find that no arguable case of legal unreasonableness arises with respect to the Authority's discretionary power in s.473DC(3).

17. Part 7AA of the Migration Act anticipates that the Authority will evaluate for itself the review material considered by the first respondent's delegate. It does not require the Authority to inform an applicant that the Authority is considering taking a different view, adverse to the applicant, in relation to the material that the delegate considered. In DGZ16 v Minister for Immigration[16] the Court held, at [72], and at [75]-[76]:

    [16] [2018] FCAFC 12

    In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

    …

    There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.

    It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.

18. The present case is not one in which any failure by the Authority to consider the exercise of its discretionary power in s.473DC(3), or to exercise that power, was legally unreasonable. The applicant had the opportunity to advance his claims concerning his conduct in Australia before the Minister’s delegate. He did so, including in the statement provided in support of his SHEV application,[17] and in the post-interview submissions by his representative.[18]  This is not a case in which the Authority knew that it did not have, but the applicant was likely to have, necessary material on a new issue.[19]  Rather, like DGZ16, the Authority simply reassessed the material that the delegate considered and made some different findings.  SZILQ v Minister for Immigration[20] is distinguishable; that case turned on the provisions of the significantly different statutory regime there in issue and, in particular, s.422B and s.425 of the Migration Act.

    [17] CB 74-75; 76

    [18] CB 120-121; 123; 141

    [19] Cf Minister for Immigration v CRY16[2017] FCAFC 210 at [82]

    [20] (2007) 163 FCR 304

Conclusion

1. I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Authority. I will therefore order that the application be dismissed pursuant to rule 44.121A of the Federal Circuit Court Rules 2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  At the time the application was filed, the scale amount was $3,667.  The applicant did not wish to be heard on costs.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     27 September 2018