EKW17 v Minister for Immigration

[2018] FCCA 670

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKW17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 670

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority was entitled to obtain country information – whether the failure to invite the applicant to attend an interview was unreasonable – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 473DE, 476.

Applicant: EKW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3055 of 2017

Judgment of: Judge Street

Hearing date: 20 March 2018

Date of Last Submission: 20 March 2018

Delivered at: Sydney

Delivered on: 20 March 2018

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Mr J Pinder
Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3055 of 2017

EKW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 31 August 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 10 September 2012 as an unauthorised maritime arrival. On 9 December 2016, the delegate found the applicant failed to meet the criteria for a grant of a protection visa.

3. In summary, the applicant claimed to fear harm from the Criminal Investigation Department (“CID”) or other authorities, and the applicant was found to be an ethnic Tamil and Hindu who was born in India and fled to India from Sri Lanka due to the war. The applicant and his family in 1994, moved to Trincomalee and they lived in United Nations High Commissioner for Refugee (“UNHCR”) camps and following the tsunami in 2006, moved to a village under army control where they remained under strict curfew until 2009. Neither the applicant nor his family had any involvement in the LTTE. The applicant, however in 2010, whilst he was studying, assisted a teacher who was a candidate for the Tamil National Alliance (“TNA”) for the district council and he helped the teacher by pasting posters around the area and doing other odd jobs for him. The applicant also had an uncle who ran as a candidate for the TNA but was not successful. The applicant alleged that after the election there were four different incidents and that since coming to Australia, most recently in September 2015, some of his friends have been asked about his whereabouts.

The Authority’s decision

1. On 14 December 2016, the Authority wrote to the applicant identifying that the application for the protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive the new information and provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions.

2. The applicant did provide submissions attached to an email dated 6 January 2017 that were expressly referred to in the Authority’s reasons. The Authority identified the background to the application for review and had regard to the material given by the Secretary under s 473CB of the Act. Insofar as the submissions constituted argument and country information that was before the delegate, the Authority had regard to the same. The Authority, however, identified that there was other new information which included an article on the World Socialist Website, information about new terrorist groups such as ‘Awa’, and information purportedly discussed in the 2016 Parliamentary session, and that no explanation had been provided as to why the article or the new information could not have been provided prior to the delegate’s decision.

3. The Authority expressly found that there was no indication from the article or information provided as to why this is credible personal information and no explanation had been provided by the applicant in relation to the provision of the application. It was in those circumstances the Authority was not satisfied that either limb of s 473DD of the Act was met and was not satisfied that any exceptional circumstances existed and did not consider the new information.

4. The Authority, consistent with s 473DE(3)(a) of the Act, took into account new country information in relation to an updated DFAT report and the Authority was satisfied there were exceptional circumstances to justify considering this new information.

5. The Authority summarised the applicant’s claims and evidence in relation to TNA support. The Authority made reference to a letter from the applicant’s teacher and provided reasons for giving no weight to that letter, given that it had information conflicting with the applicant’s claims. The Authority did accept that the applicant assisted in the campaign by putting up posters, distributing campaign material and accompanying the candidate when he was to give speeches. The Authority was not satisfied the applicant has suffered harm on account of his past involvement with the teacher and found the applicant does not fear future harm arising from his uncle’s previous political involvement.

6. The Authority made reference to the applicant having two cousins who had joined the LTTE during the war and are now missing, presumed dead. The Authority referred to the applicant stating that he and his brother were pressured to join the LTTE as they lived in an army controlled area and avoided recruitment. The Authority also accepted that the applicant had suffered discrimination as a Tamil in Sri Lanka. The Authority referred to the alleged four incidents and accepted that the applicant was bullied and harassed in relation to the first three incidents as claimed.

7. In relation to the fourth incident, in which the applicant was released when his parents bribed the men with money and jewellery, the applicant confirmed that these men were different and that the police had never actually mentioned the teacher. The Authority was prepared to accept the fourth incident occurred, but was not satisfied on the evidence that the incident or the perpetrators involved had any connection with the first three incidents of mistreatment by the two policemen. The Authority was satisfied that neither the applicant nor any of his immediate family members had previously been or are currently perceived as having an LTTE supporter or sympathiser profile. In relation to the fourth incident, the Authority found this was an isolated claim and found the applicant was not still of interest to the men that perpetrated the same.

8. The Authority referred to the recent questioning and was prepared to accept that officers have asked about the applicant, including in September 2015. The Authority however, found the questioning has been opportunistic and only indicated that they have observed the applicant’s absence from the area. The Authority was not satisfied that this was representative of an ongoing interest in the applicant on the part of the authorities, nor was the Authority satisfied it indicates that the officers have been actively looking for the applicant. The Authority was satisfied that no other members of the authorities have been asking for the applicant. The Authority was satisfied the applicant is not of any official adverse interest to the authorities in Sri Lanka and found the non-official or personal interest of the two rogue policemen had decreased and at the most they had only low level interest in the applicant.

9. The Authority identified the relevant law, including the UNHCR guidelines and was not satisfied that at the time the applicant departed Sri Lanka, the applicant was of official interest to the authorities, even taking into account that he departed illegally, and was not satisfied an adverse interest in him would have developed. The Authority was not satisfied that the applicant’s profile was, and would be such, that he would come to adverse attention for LTTE connections upon return. The Authority was not satisfied that the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of an actual or imputed LTTE link arising from his cousin’s LTTE membership, any interest that the two officers had in him previously, his Tamil race, his origins from the Eastern Province, his gender or age, noting that is he is still a relatively young man, even taking into account the previous mistreatment against him, questioning and monitoring and post-department enquiries from the two officers. Taking into account these matters, the Authority found the applicant does not have a well-founded fear of persecution from the authorities or others.

10. The Authority accepted that the applicant would be returning as a failed asylum seeker from Australia who had departed illegally. The Authority did not accept the applicant faced a real chance of harm as a failed/returning asylum seeker even considering his other profile factors and his history of harassment with the authorities. The Authority accepted the applicant would be questioned and processed at the airport, and that the applicant will face a brief period of detention. The Authority found the applicant will be issued with a fine and was satisfied that the applicant does not face a real chance of serious harm while detained. The Authority was not satisfied that the payment of a fine, which the Authority found the applicant can do by instalments, amounts to a hardship which would threaten his capacity to subsist, or otherwise amount to serious or significant harm, or that being held in detention for a short period at the airport, or possibly a nearby prison, amounts to serious harm.

11. The Authority found the process leading to a charge, conviction and punishment for breaching the relevant sections of the Immigrants and Emigrants Act 1948 (Sri Lanka) would be the result of a law of general application that applies to all Sri Lankans who depart illegally and does not amount to persecution for the purpose of s 5H(1) of the Act and s 5J(1) of the Act. The Authority was not satisfied the applicant would face a real chance of serious harm arising from being a family member of a former LTTE combatant, being his cousins, real or imputed LTTE links on account of being a young Tamil male from the east who left illegally and sought asylum in Australia, nor from his association with the TNA. Considering all the matters together, the Authority was not satisfied the applicant’s circumstances give rise to a well-founded fear of persecution.

12. The Authority found the applicant failed to meet the requirements of the definition of refugee in s 5H(1) of the Act and failed to meet the criteria under s 36(2)(a) of the Act.

13. The Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. On 15 November 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. At the commencement of the hearing, the Court explained to the applicant that this is a final hearing to determine whether the Authority’s decision was affected by a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that in summary, this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs.

2. The Court explained it would have identified the evidence, and then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. The applicant also confirmed he had received the submissions of the first respondent.

3. From the bar table, the applicant maintained that he had provided information in support of his claims and that he could not obtain any other evidence. Nothing said by the applicant from the bar table identified any jurisdictional error.

4. The grounds of the application are as follows:

   1. The IAA erred in not providing the new information obtained, in the DFAT Country information report to the applicant in accordance with s473DE of the Act and erred in treating the information as falling within the exception created by s473DE(3)(a).

   2. The IAA’s failure to invite the applicant in writing or at an interview, or to consider doing so, as was within its power pursuant to s473DC(3)(b) of the Act, was unreasonable in the legal sense.

   Particulars

   a. On 6 January 2017 the IAA received a submission from a registered migration agent on behalf of the applicant compromising of the following information:

   i. The submission referred to a May 2016 article from the World Socialist Website which pre-dates the delegate’s decision; and

   ii. The submissions provided information about new terrorist groups and un-rehabilitated LTTE militants remaining in Sri Lanka.

   b. The IAA found at [4] the IAA was not satisfied that the new information was credible personal information and no explanation was provided by the applicant and consequently did not satisfy either s.473DD(b)(i) or (ii); and

   c. The discretion in s473DC(3) of the Act exists to be exercised in an appropriate case to make the correct or preferable decision. The failure to exercise or consider exercising the relevant power to allow the applicant to comment on the above findings is unreasonable in a legal sense.

Ground 1

1. In relation to ground 1, the DFAT updated country information is information the Authority was entitled to obtain under s 473DE(3)(a) of the Act. The Authority was not required to give the applicant an opportunity to comment or respond to that information. The Authority was correct in identifying that the DFAT report as country information under the provisions of s 473DE(3)(a) of the Act. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, there was no request in the submission for the applicant to be the subject of an interview and accordingly, there was no jurisdictional error by reason of the Authority not exercising the power under s 473DC of the Act in the circumstances of the present case. No fact has been pointed to which would make the Authority’s failure to invite the applicant to attend legally unreasonable.

2. Insofar as ground 2 seeks to agitate alleged error under s 473DD of the Act, in the present case it is apparent that the Authority, in respect of the new information, took into account both limbs of s 473DD of the Act and there is nothing on the face of the Authority’s reasons to support that the Authority adopted an erroneously narrow meaning of exceptional circumstances. No jurisdictional error is made out by ground 2.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 April 2018