EPH17 v Minister for Immigration
[2018] FCCA 2809
•19 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EPH17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2809 |
| Catchwords PRACTICE & PROCEDURE – Show cause hearing – issues for consideration in respect of a summary dismissal application – order not to be lightly made – residual discretion of the trial judge – applicant’s grounds lacked particulars – IAA considered each claim made by the applicant and all matters required by the Migration Act – application summarily dismissed. |
| Legislation Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 |
| Applicant: | EPH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2207 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 19 September 2018 |
| Date of Last Submission: | 19 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 September 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: | Mr C Tran |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed 16 October 2017 is dismissed.
The applicant to pay the first respondent’s costs fixed in the sum of $3 737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2207 of 2017
| EPH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
By order of a registrar of this court made on 27 June 2018 this proceeding was ordered to go forward under the show cause regime set out in r 44.12 of the Federal Circuit Court Rules. Under that rule, a judge in my shoes possesses an array of powers among which is the power to summarily dismiss the entire proceeding if persuaded that the applicant has not raised an arguable case for the relief the applicant seeks. But in any consideration of a summary dismissal of the applicant’s application two further issues arise. First, an order for summary dismissal of the proceeding is not to be lightly made, as was held in Spencer v Commonwealth of Australia[1] and in AMF15 v Minister for Immigration and Border Protection.[2] Second, even if I were to conclude that no arguable case was disclosed by the applicant, in the exercise of a residual discretion that I possess, one option open to me is to refuse to make an order for the summary dismissal of the proceeding, as was held in cases including Siddique v Minister for Immigration and Border Protection.[3]
[1] (2010) 241 CLR 118
[2] (2016) 241 FCR 30
[3] [2014] FCA 1352
In this case, the applicant relied on three grounds to support his application for judicial review. He alleged that the Immigration Assessment Authority (“IAA”) –
a)considered irrelevant matters;
b)erred at law; and
c)failed to consider relevant factors.
No particulars were given of any of those three grounds so it was not possible to tell on what matters of fact or law the applicant relied to base his contentions about the existence of jurisdictional error. Naturally, based on conceptions of jurisdictional error as formulated in Craig v State of South Australia[4] and Minister for Immigration and Multicultural Affairs v Yusuf,[5] if the applicant demonstrated that the IAA considered irrelevant matters or that it erred at law or that it failed to consider relevant factors, absent some disentitling factor, the issue of constitutional writs would ordinarily follow.
[4] (1995) 184 CLR 163
[5] (2001) 206 CLR 323
The applicant failed to provide an amendment to his application, whether by the date ordered or at all. He also failed to provide written submissions.
The minister cited a powerful line of decisions of single judges of the Federal Court who have consistently held that unparticularised ambit claims of the sort made in this case are inadequate to demonstrate jurisdictional error. Among them are AQN15 v Minister for Immigration and Border Protection,[6] WZAVWv Minister for Immigration and Border Protection,[7] CNN15v Minister for Immigration and Border Protection,[8] MZARG v Minister for Immigration and Border Protection[9] and BYM16 v Minister for Immigration and Border Protection.[10] There are others. However, in this case the minister pointed to the fact that the applicant was unrepresented and that, in reliance upon DQQ17v Minister for Immigration and Border Protection,[11] I should not rely on the absence of particulars alone in reaching my conclusions in this case. I agree. It would be quite wrong to dismiss this application for judicial review merely on the basis that the applicant, a legally unrepresented litigant, was unable to present his case in the way a legally represented applicant might have done.
[6] [2016] FCA 571
[7] [2015] FCA 760
[8] [2017] FCA 579
[9] [2018] FCA 624
[10] [2017] FCA 326
[11] [2017] FCA 784
I have proceeded on the basis that by reason of the applicant’s status as an unrepresented litigant for whom English may not be his first language, it fell to me to search for and detect jurisdictional error, if any existed.
The applicant’s details
The applicant is a Sri Lankan citizen. He arrived in Australia on 8 June 2013 as an unauthorised maritime arrival. He attended an entry interview during which he recorded his claims. He claimed to have left Sri Lanka due to his father’s being beaten by the army and forced to drink the blood of a friend who attempted to protect the father. The applicant claimed he left Sri Lanka by reason of difficulties faced by his brother. He claimed he left Sri Lanka and travelled to India and that he left India because the Q Branch police threatened him for having supported Marumalarchi Dravida Munnetra Kazhagam political party (“MDMK”).
On 27 February 2017 the applicant applied for a safe haven enterprise visa. In support, he lodged a statement of his claim. In it he asserted as follows –
a)as a Sri Lankan, his family encountered difficulties on account of a civil war;
b)the Sri Lankan Army (“SLA”) suspected his father of carrying weapons for the Liberation Tigers of Tamil Eelam (“LTTE”), and on one occasion the SLA stopped the applicant’s father, beat him then killed the applicant’s father’s best friend who attempted to protect him and forced the father to drink the friend’s blood;
c)the applicant’s brother was also harassed by the SLA for supporting the LTTE;
d)the applicant fled to India where he supported the MDMK and participated in protests in support of Tamil rights after which he was regularly questioned by the branch of the Tamil Nadu state police intelligence service which also detained him and threatened him; and
e)he claimed he had no right to re-enter India and that the Sri Lankan authorities would harm him if he returned to Sri Lanka, in which case the authorities would harm or kill him because of his Tamil ethnicity or his imputed political opinion in support of the LTTE.
The applicant attended an interview with the minister’s delegate on 10 May 2017 and provided a post-interview submission on 17 May 2017.
On 10 July 2017 the minister’s delegate refused to grant the applicant the safe haven enterprise visa he sought. On the same day this matter was referred to the IAA. On behalf of the applicant, submissions were made to the IAA on 1 August 2017 and 25 August 2017.
On 11 October 2017 the IAA affirmed the delegate’s decision to not grant the applicant the safe haven enterprise visa he sought. In the course of giving lengthy and cogent reasons for its decision, the IAA took into account some of the applicant’s submissions on the basis that they responded to the delegate’s decision or on the basis that they referred to matters already before the IAA for having been before the delegate. In respect of those portions of the submissions to which the IAA did not give consideration it stated that such parts of the submissions or additional material constituted “new information”.
The IAA relied on country information as well as the applicant’s changing version of events for its decision to affirm the delegate’s decision. Its main path of reasoning was as follows –
a)in paragraph 33 of its reasons the IAA did not accept that the applicant’s father was suspected by the SLA of carrying weapons for the LTTE because the IAA was troubled that the issue had not been raised earlier;
b)in paragraph 32 of its reasons the IAA accepted that the applicant’s father had been beaten and his friend killed;
c)in paragraph 33 of its reasons the IAA found that the applicant’s father had been stopped and harassed on only one occasion;
d)in paragraph 35 of its reasons the IAA stated it did not accept that the applicant, who in 1990 was a seven year old boy when he departed Sri Lanka for India, was of adverse interest to the authorities;
e)in paragraph 34 of its reasons the IAA accepted that the applicant’s brother had been harassed by the SLA but it found that his activities were low level in nature and ceased when his family left Sri Lanka in 1990;
f)in paragraph 42 of its reasons the IAA stated it found the applicant’s evidence about MDMK and Q Branch to be inconsistent and unconvincing;
g)in paragraph 44 of its reasons the tribunal said that some of the key details had not been raised earlier, and in paragraph 45 the IAA said the details had changed over the course of the interview itself; and
h)between paragraphs 56 and 88 of its reasons, in reliance upon country information, the IAA said that it did not accept that the applicant was at risk of harm upon his return to Sri Lanka.
In this court
Being dissatisfied with the decision of the IAA the applicant commenced this proceeding on 16 October 2017 in which he sought the issue of constitutional writs on the basis that the IAA had fallen into jurisdictional error. His grounds have been set out above. Let me now turn to each.
Ground one
Under the first ground the applicant asserted that the IAA considered irrelevant matters. The applicant did not say what those allegedly irrelevant matters were, nor did he say on what basis he contended that any such consideration of those matters involved the consideration of an irrelevancy. On behalf of the minister, Mr Tran of counsel submitted in writing[12] that Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[13] held that a decision maker must not consider matters that the statute prohibits, whether expressly or impliedly, the decision maker from considering.
[12] First respondent’s written submissions (4 September 2018) 4 [18]
[13] (1986) 162 CLR 24
Mr Tran said that the IAA paid close attention to the applicant’s claims and the evidence advanced by the applicant in support of his claims and that the IAA did not consider anything that the Migration Act (“Act”) expressly or impliedly required the IAA to ignore.
I agree.
In my view, the IAA’s attention to and disposition of the applicant’s claims bore that out in paragraphs 31, 32, 33, 34, 42, 43, 44 and 45. It seemed to me that the IAA gave active intellectual consideration to each of the applicant’s claims and it approached its task with a mind open to persuasion. That said, it fell to the applicant to persuade the IAA of his entitlement to the visa he sought. It was not up to the IAA to make out the applicant’s case for him. In my judgment, the IAA did not consider irrelevant matters in affirming the delegate’s decision. Ground 1 failed.
Ground two
Under this ground the applicant asserted that the IAA erred at law. As with all grounds in this case, the absence of particulars rendered it impossible to say on what matters of fact or law the applicant relied to base his contention that the IAA erred in law in its consideration of the applicant’s claims. To the extent that the IAA’s decision involved a consideration then a rejection of the applicant’s claims, several authorities that bind me have held that it is open to the tribunal, here the IAA, to disbelieve an applicant’s version of events even if no rebutting evidence putting a contradictory proposition is adduced. Cases in that category include Selvadurai v Minister for Immigration and Ethnic Affairs,[14] Mukto v Minister for Immigration & Multicultural Affairs [15] and SZSQL vMinister for Immigration and Border Protection.[16]
[14] [1994] FCA 1102
[15] [1999] FCA 1801
[16] [2015] FCA 294
To the extent that the applicant was conveying the notion under ground two that the IAA somehow acted incorrectly in relation to country information, it must be said at once that it was for the IAA to select the relevant country information and to give it such weight as the IAA considered appropriate. That much has been the law since the Full Court pronounced upon the point in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[17]
[17] [2004] FCAFC 10
To the extent that ground two was an attack on the IAA’s approach to “new information” I agree with the position advanced on behalf of the minister. Between paragraphs 3 and 16 inclusive of its reasons the IAA identified the information that was before it. In paragraph 8 of its reasons the IAA explained what was the “new information”. In paragraph 9 of its reasons the IAA recorded that the IAA was satisfied and that the new information related to issues that pre-dated the decision and that the applicant had a number of opportunities to present the information to the department prior to the decision being made. The IAA stated in paragraph 9 of its reasons that the IAA was not satisfied that the information could not have been provided to the minister prior to the decision being made.
In paragraphs 13 and 15 of its reasons the IAA stated that it was not satisfied that the new information could not have been provided prior to the decision being made or that it was credible personal information which was previously not known, and had it been known, may have affected the consideration of the applicant’s claims. The IAA said in paragraph 15 of its reasons that the IAA was not satisfied there were exceptional circumstances to justify considering the new information.
Mr Tran’s written submissions correctly stated that the IAA had not committed any error of the type identified in BVZ16 v Minister for Immigration and Border Protection.[18] To that I add that in Plaintiff M174 of 2016 vMinister for Immigration and Border Protection[19] the High Court of Australia has pronounced on “new information” for the purposes of the Act. Nothing in the IAA’s decision was inconsistent with that authority.
[18] (2017) 254 FCR 221
[19] [2018] HCA 16
Ground three
Under this ground the applicant asserted that the IAA failed to consider relevant factors. As mentioned in relation to other grounds, no particulars were given of this ground so it was not possible to say on what factual or legal premise this contention was based. Bearing in mind that in Minister for Aboriginal Affairs v Peko-WallsendLtd[20] the High Court held that a decision maker must take into account anything the relevant statute expressly or impliedly requires the decision maker to consider, the question here became whether the IAA considered all matters it was required to consider under the Act. As I held in BCF15v Minister for Immigration and Border Protection,[21] the IAA was required to consider –
a)a substantial clearly articulated argument relying upon established facts, as was held in Dranichnikov v Minister for Immigration and Multicultural Affairs;[22]
b)a claim or claims and its or their component integers, as was held in Htun v Minister for Immigration and Multicultural Affairs;[23]
c)evidence and material that the tribunal accepted to raise a case not articulated, as was held in Paramananthan v Minister for Immigration and Multicultural Affairs[24] and in Sellamuthu v Minister for Immigration and Multicultural Affairs;[25] and
d)an unarticulated claim that is raised squarely on the material available to the tribunal, as was held in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs[26] and in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2);[27] but
e)not an application or a claim ever made, as was held in Minister for Immigration and Border Protection v SZSWB.[28]
[20] (1986) 162 CLR 24
[21] [2016] FCCA 2340
[22] (2003) 77 ALJR 1088
[23] (2001) 233 FCR 136
[24] (1998) 94 FCR 28
[25] (1999) 90 FCR 287
[26] (2003) 129 FCR 137
[27] (2004) 144 FCR 1
[28] [2014] FCAFC 106
In BCF15 I drew those authorities together and synthesised them in the manner set out immediately above.
In my view, the IAA did in fact consider each claim made by the applicant as well as the evidence and submissions advanced on the applicant’s behalf.
Today I asked the applicant to tell me in his own words what he said the IAA did wrong in this case. He said the IAA accepted what happened to his father but refused his claims. In my view, the IAA was entitled to do that. He then said he went to India some time ago but was not able to get documentary evidence for the purposes of this case. That was not jurisdictional error. He then said that if he was forced to return to Sri Lanka, what guarantee will the Australian Government give for his safety, that being asked as a seemingly rhetorical question. To my mind, that inverted the question. He needed to establish that Australia owed him protection obligations and he failed to do so.
By way of general response to the information given to me today, Mr Tran said that it was irrelevant to my task on a judicial review application.
Conclusion
In my judgment, none of the grounds of review raised an arguable case by which the applicant was entitled to the issue of constitutional writs on the basis that the IAA fell into jurisdictional error. In those circumstances an order should be made under r 44.12 for the summary dismissal of this proceeding.
In applying the notions set out in Siddique I was additionally required to consider whether, in the exercise of the residual discretion reposed in me, despite there being a basis to summarily dismiss the applicant’s application for judicial review in this case, I should decline to do so. Having undertaken that separate consideration, in my view, no useful purpose would be served in refusing to make an order for the summary dismissal of this case. None of the grounds had merit.
The applicant was invited to set out his case in an amended application but he declined to do so. In the face of that state of affairs, there being no case in this proceeding better than the unamended application for judicial review, none of those grounds having merit, so I was directed to address the material as it presently stands, as I have done.
This proceeding is dismissed.
I order the applicant to pay the minister’s costs fixed in the sum of $3 737.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 27 September 2018
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