Eoo17 v Minister for Immigration

[2019] FCCA 1286

FEDERAL CIRCUIT COURT OF AUSTRALIA

EOO17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1286

Catchwords:
MIGRATION – Application for judicial review – protection visa – where corrigendum issued – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(a)

Applicant: EOO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2193 of 2017

Judgment of: Judge Riethmuller

Hearing date: 11 February 2019

Date of Last Submission: 11 February 2019

Delivered at: Melbourne

Delivered on: 16 May 2019

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2193 of 2017

EOO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 18 September 2017. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa.

2. The applicant is from Sri Lanka and of Tamil ethnicity. He arrived in Australia as an irregular maritime arrival in 2012. On 1 June 2016 the applicant applied for a Safe Haven Enterprise visa (protection visa). On 10 March 2017, a delegate refused to grant the visa. The matter was referred to the IAA and in September 2017 the IAA affirmed the decision. The IAA’s decision is dated 18 September 2017. On 26 September 2017 the IAA issued a corrigendum to the decision.

3. On 12 October 2017 the applicant applied to this Court for judicial review of the IAA’s decision.

Applicant’s Claims

1. The applicant’s claims are summarised at [8] of the IAA’s decision as follows:

   ·In 1984, the Sri Lankan military came to the applicant's house in search of his brother. They suspected his brother of having assisted the Peoples Liberation Organisation of Tamil Eelam (PLOT). The applicant was beaten and his older brother was arrested. The older brother was taken to the camp and further assaulted.

   ·The applicant's other brother fled their village in fear of the military. The family did not hear from him for three years, until they discovered he had been placed into a military camp because he was found to be assisting PLOT. This brother now lives in Switzerland

   ·In June 2009, the applicant was at home in Sri Lanka on annual leave from his job in Iraq. While he was with his cousin, the applicant witnessed he military killing two Tamil men. The applicant videoed the incident on his mobile phone.  They were stopped by the military, and his phone was confiscated. They were released.

   ·Later that night, the applicant was awoken by noises at the door. He fled the house, and returned to Iraq. The applicant's wife was visited by the military that night and forced to answer questions about his whereabouts. They were visited again, and his wife and children moved to a different village.

   ·The applicant returned to Sri Lanka in June 2010 for three months during a changeover of his employer's contracts. At his wife and children's new house, he was visited by a van full of people with guns. He was required to bring his passport, and taken to a house where he was kicked and beaten for one day. The people then left, and the applicant was able to get out of the house.

   ·The record of the entry interview stated that he told the Department that he was abducted in July 2012. This was incorrectly recorded, as he told the Department this incident occurred in July 2010.

   ·The applicant stated with former colleague's for a number of days. He went to a police station in Batticaloa to report the incident.  The applicant \ as told not to make a report as it may be dangerous to do so. The applicant instead reported the incident to the Human Rights commission, and provided a copy of the complaint card with his application.

   ·The day after he reported the incident to the Human Rights Commission, he attended the office of [S], a member of Parliament. Mr [S] wrote a letter of report dated 11 January 2013. It incorrectly states that the applicant was detained for 20 days, when he was only abducted for one day.

   ·Between July 2010 and 2012, the applicant moved between friends' houses and his mother's house, returning home only for a few days at a time.  He was unable to return to work in Iraq because he needed to make a complaint to the police in order to get a new passport, and he was concerned that he would be harmed if he did so.

   ·The applicant fears harm at the hands of the people who abducted him in 2010. His wife continues to be questioned by unidentified people. He fears that the authorities would not assist him because he witnessed a murder committed by the military. He would not be able to hide himself if he moved to another part of Sri Lanka, as he would be easily identifiable as a Tamil. The applicant would also be arrested for leaving Sri Lanka illegally, and would not be able to pay bail of 100,000 rupees.

The IAA’s Findings

1. The IAA accepted the applicant’s claims in relation to the incident in 1984 where his brother assisted the PLOT, but the IAA was not satisfied the incident was ‘sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities now or in the reasonably foreseeable future’: see [14].

2. The IAA placed no weight on the evidence of a letter from a member of Parliament and the Human Rights Commission Report due to discrepancies and prevalent document fraud: see [16] and [17].

3. The IAA did not accept the applicant was abducted and found the discrepancy between dates of the applicant’s claims to be ‘highly significant’. The IAA found that the applicant ‘had fabricated his claims of abduction and detention so as to create a profile upon which to apply for protection’: see [18].

4. The IAA accepted the applicant’s claims in relation to witnessing the military shooting two Tamil men in 2009, and his phone being confiscated after video recording the incident. The IAA also accepted that the military visited the applicant’s house and his family have subsequently moved villages. However, the IAA did not accept that, ‘the applicant or members of his family had been the subject of adverse interest or harmed since that time’: see [20]. The IAA found the risk of harm to the applicant now or in the reasonably foreseeable future to be remote.

5. The IAA considered the country information and the risk to harm of the applicant on the basis of being a Tamil (at [25] to [27]), his illegal departure from Sri Lanka (at [28] to [35]) and his return as a failed asylum seeker (at [36] to [39]). The IAA went on to consider the complimentary protection provisions under s. 36(2)(a) of the Migration Act 1958 (Cth).

6. Ultimately, the IAA found that the applicant was not a person to whom Australia owed protection obligations.

Grounds of Application

1. The applicant has two grounds of judicial review: (i) that the decision is affected by jurisdictional error; and (ii) that he was denied procedural fairness. 

Ground 1

1. Ground 1 is particularised as follows:

   1. The decision of the IAA is affected by jurisdictional error:

   Particulars

   a. In relation to the fact that he will be a returning failed asylum seeker, the decision maker has erred when he concludes that there is not a real chance that any element in the process of screening these returnees would involve serious harm for the purposes of s.36(2)(a).

   b. In considering whether there is a real risk of the applicant experiencing treatment involving "significant harm" for the purposes of s.36(2)(aa), the decision maker has stated that a person charged under the IAEA may in some instances be detained for several days and he then should have considered if he could be satisfied that any pain or suffering caused by severe overcrowding and poor and unsanitary conditions, should the applicant be remanded in custody, would be intentionally inflicted on the applicant, as required by the definition of cruel or inhuman treatment or punishment. In other words he should have evaluated the nature and gravity of that loss of liberty.

   There is country information of prisons as being places where there is cruel & inhuman treatment and degrading treatment and yet the IAA has chosen not to address this issue.

   The IAA has not addressed the issue of what will happen if the applicant cannot raise bail or whether he has family or a support network to organize that bail.

2. The applicant complains that the risks to him of being arrested for illegally leaving Sri Lanka have not been properly considered in the context of the complementary protection provisions of s.36(2)(a) of the Act. At [45] of the decision, the IAA made a specific finding that there would be no intention on the part of Sri Lanka or those involved in the process of prosecuting people for departing illegally to ‘inflict pain or suffering or extreme humiliation’: see [45].

3. The applicant complains that there is country information that prisons have been places where treatment is cruel and inhumane or degrading, however the applicant does not identify any country information that was before the IAA which it failed to consider.  Importantly, the IAA member concluded:

   45. I am not satisfied that any brief detention, questioning, fine or other penalty would amount to significant harm as defined under the Act.  I accept that the applicant may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate.  I have found the applicant has no specific profile that would result in a longer detention, custodial sentence or additional interrogation.  DFAT advises that the risk of torture or mistreatment for people suspected of an offence under the IAEA is low.  I find that the likelihood that the applicant will be detained in prison is remote, but if he does I accept the applicant may experience poor prison conditions during his detention. Critically, I note that country information indicates the poor conditions are due to overcrowding, poor sanitation and lack of resources.  I find there is no real risk that the applicant will be arbitrarily deprived of his life or be tortured.  While the conditions are poor, I find there is no intention to inflict pain or suffering or extreme humiliation.  In these circumstances, the poor prison conditions to which he applicant may be subject do not of themselves constitute significant harm as defined under the Act.  I am not satisfied that, individually  or cumulatively,  any processes  or  penalties the applicant may encounter under the IAEA, would constitute significant harm as exhaustively defined under ss.36(2A) and 5 of the Act.

4. With respect to the provisions of s.36(2) of the Act, the IAA also considered the impact of the consequences of the applicant leaving Sri Lanka illegally. In this regard, the IAA said:

   32. Penalties can include up to five years imprisonment and fines of up to SLR200,000.  DFAT advises that in practice, penalties are applied on a discretionary basis and usually in the form of a fine.  Advice from Sri Lanka's Attorney General's Department to DFAT is that no returnee who left Sri Lanka unlawfully as a simple passenger has been given a custodial sentence for their breach of IAEA.  Fines are common, but the amounts vary depending on the circumstances of the case and are typically on the lower end.

   33. On return to Sri Lanka, I find the applicant would likely be charged and fined under the IAEA and then released.  In the event that the applicant elected to plead not guilty to the offence under the IAEA, he would either be granted bail on personal surety or a family member.  The country information does not support the applicant's claims that he would be required to pay 100,000 rupees to obtain bail.  There is no suggestion the applicant was anything other than an ordinary illegal departee from Sri Lanka.  In that context, I find that he would not face any chance of imprisonment, but it is likely that he will be fined. On the evidence before me, I find the imposition of any fine, surety or guarantee would not of itself constitute serious harm.  I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against low profile illegal departees.  In the context of a significant number of Sri Lankan nationals being returned to Sri Lanka, and the absence of any profile that would elevate the penalty the applicant would face, I find there is not a real chance that the applicant would face such a period of detention or imprisonment.

   34. I note the country information indicates that while custodial sentences are not levelled against returnees, a person charged under the IAEA may, in some instances, be detained for several days pending an opportunity to appear before a magistrate. I note the Australian court [FN: MIBP v WZAPN, WZARV v MIBP (2015) HCA 22, see also, SZTEQ v MIBP (2015) FCAFC 39] have confirmed that whether a loss of liberty amounts to serious harm involves a qualitative judgment, involving the assessment of matters of fact and degree - including an evaluation of the nature and gravity of that loss of liberty. I have considered whether a detention of several days would constitute serious harm. While I accept that conditions in Sri Lankan prisons are poor due to a lack of resources, overcrowding and poor sanitation, I find that any questioning and detention the applicant may experience would be brief and would not constitute serious harm as inexhaustibly defined in the Act.

   35. I am also satisfied that the provisions and penalties of the IAEA are laws of general application that apply to all Sri Lankans equally. The law is not discriminatory on its terms, nor is there country information before me that indicates that the law is applied in a discriminatory manner or that it is selectively enforced. Considered singularly or cumulatively, I am also not satisfied that any processes or penalties that the applicant may face as person who left Sri Lanka illegally and returning to Sri Lanka would amount to serious harm. Accordingly, I am satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purpose of the Act.

5. Whilst it is said that the IAA failed to address the question of what would occur if the applicant was unable to raise bail or obtain a family member to be a surety, the IAA did address this (at [45]) saying ‘the likelihood that the applicant will be detained in prison is remote, but if he… [is detained] I accept the applicant may experience poor prison conditions during his detention… [but these] do not of themselves constitute significant harm as defined under the Act’.

6. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 is particularised as follows:

   2. The applicant has been denied procedural fairness

   Particulars

   A decision was made on 18 September 2017 remitting the decision for reconsideration with the direction that the applicant is a refugee within the meaning of s5(H)1 of the Migration Act 1958. However, that decision was overturned on 26 September 2017 when the same tribunal made a correction the decision when the word remits was replaced by the word affirms it would appear that this was a cut and paste decision with the same reasons being given as for a number of other refugee applicants, with only the name and facts being changed, which resulted in the error being made.

2. In this case, the reasons of the IAA, make apparent that the IAA is affirming the decision of the delegate.  However, an error was made on the final page (page 10) where it was stated that the IAA ‘remits the decision for reconsideration’, rather than affirming the decision of the delegate. The original decision was made on 18 September 2017 and sent to the applicant’s representative.  The decision was then sent to the applicant by his representative.

3. The error was discovered and a corrigendum was issued by the IAA whereby the IAA affirmed the decision not to grant the applicant a protection visa. The corrigendum decision was made on 26 September 2017.  The applicant contends that this is evidence that the IAA adopted a ‘cut and paste decision’ in the sense that it is alleged that the reasons are identical to reasons given for a number of different applicants with only the name and facts being changed.

4. The decision does not read as though the IAA member had not considered the applicant’s case on its merits.  It is apparent that the decision engages with the specific facts and circumstances of the applicant’s case and not facts and circumstances of another person’s case.  Similarly, if it were a ‘cut and paste decision’ it makes no sense that the reasoning would all be against the applicant and the outcome would be in favour of the applicant.

5. The IAA may have reused some paragraphs from earlier decisions that state the law, such as [12] which says:

   12. Under s.5J of the Act 'well-founded fear of persecution' involves a number of components which include that:

   ·the person fears persecution and there is a real chance that the person would be persecuted

   ·the real chance of persecution relates to all areas of the receiving country

   ·the persecution involves serious harm and systematic and discriminatory conduct

   ·the essential and significant reason {or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion

   ·the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and

   ·the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.

6. It is entirely unremarkable that the IAA may reuse a paragraph of this type.  It is a summary of the relevant provisions of the Act.  This part of a decision will be the same for almost every case the IAA decides, as all of the cases the IAA deals with relate to a small number of legislative provisions.  Reusing summaries of legal provisions is not sufficient, of itself, to show that a decision maker failed to consider the facts and circumstances of the particular case.  It is inevitable that decision makers repeatedly referring to a particular legal test will give similar summaries or repeat statements of the legal test. The real question is whether the decision maker has engaged with the facts of the case before them in applying those tests.

7. The reasons in this decision related to the applicant’s personal circumstances.  It was not a decision that ignored the applicant’s own circumstances.  As a result, the use of standard paragraphs that summarise the law is not sufficient to show that the decision maker failed to properly engage in the task required by the legislation.

8. With respect to the ‘corrigendum’, the decision involves an interesting argument. It is not open to administrative decision-makers to make alterations to their decisions once they have made a decision (what is commonly referred to as the ‘slip rule’ for judicial determinations is not available).  It is therefore necessary to identify the basis upon which the decision-maker could change the decision.

9. Counsel for the Minister argues that on reading the original decision as a whole it is apparent that on the face of the document the decision-maker committed jurisdictional error: the formal decision was diametrically opposed to all of the reasons contained within the decision record.  In these circumstances, it is argued, it is not necessary for the Department to apply to the court for a declaration that the decision was a failure to properly exercise jurisdiction, but can treat it as being of no legal effect and proceed to make a decision according to law.  By issuing the corrigendum, it had undertaken such a course.

1. In these circumstances, the original decision was obviously a failure to properly carry out the legislative task.  I am not persuaded that in a case where it is so obvious that the power has not been properly exercised, that the decision maker cannot treat the attempt to exercise the power as having failed.  It was therefore open to the decision maker to properly exercise the power, which they effectively did when issuing a decision made on 26 September 2017.  The corrigendum should be treated as the decision of the IAA rather than the earlier decision, which failed to properly exercise jurisdiction

2. Ground 2 has not been established.

Conclusion

1. I therefore dismiss the application.

2. The Minister seeks costs. The applicant has been entirely unsuccessful and the costs sought are in the scale amount. I order the applicant pay costs in the amount of $7,328.00.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 16 May 2019