Ern17 v Minister for Immigration

[2018] FCCA 1766

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERN17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1766

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority could consider new information – whether the Authority erred in not inviting the applicant to comment on the new information – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5H, 36, 473DC, 473DD, 463DE, 476, 477.

Applicant: ERN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3246 of 2017

Judgment of: Judge Street

Hearing date: 22 June 2018

Date of Last Submission: 22 June 2018

Delivered at: Sydney

Delivered on: 22 June 2018

REPRESENTATION

Ms The Applicant appeared in person.

Solicitors for the Respondents: Ms C Saunders
DLA Piper

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3246 of 2017

ERN17

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”) made on 13 June 2017 affirming a decision of the delegate not to grant the applicant a Temporary Protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant claimed to fear harm by reason of a history with gang violence and by reason by having sought asylum in Australia and because of his Tamil ethnicity. The applicant was found to be a Tamil from the North Western province of Sri Lanka.

3. These proceedings were commenced on 18 October 2017 and on 20 November 2017 a Judge of the Court made an order extending time under s 477 of the Act for the bringing of these proceedings by the applicant.

4. The applicant applied for the protection visa on 10 August 2016. The applicant had arrived in Australia on 14 September 2012 as an unauthorised maritime arrival. On 17 January 2017, the delegate found the applicant failed to meet the criteria for the grant of a Temporary Protection visa.

The Authority

1. By letter dated 20 January 2017, the Authority wrote the applicant informing the applicant that the application for a Temporary Protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The applicant’s migration representative provided a submission dated 24 January 2017, which was expressly identified and considered by the Authority in its reasons. The Authority in its reasons identified the applicant’s submissions and the Authority, pursuant to s 473DE(3)(a) of the Act, took into account an updated Department of Foreign Affairs and Trade (“DFAT”) country information report for Sri Lanka dated 24 January 2017. The delegate’s decision took into account the DFAT country information report dated 18 December 2015.

3. The Authority identified the applicant’s claims and set out the relevant law. The Authority referred to the applicant’s claims involving an alleged incident in 1997. The Authority found the applicant was able to continue working as a waiter for two years after that incident without incident, apart from being verbally harassed. The Authority was not satisfied the applicant suffered any serious harm as a result of his participation and the altercation between the Green and Blue Party supporters in 1997, or that the Sri Lanka authorities will be looking for him because of that incident.

4. The Authority found that there was no credible evidence to suggest the applicant was targeted by any member of the Green Party following the incident in 1997. The Authority found there was no real chance of the applicant suffering harm from the Sri Lankan authorities or any other group or person on the basis of involvement of alleged gang violence in 1997, or his participation in local campaign elections.

5. The Authority took into account the applicant’s claimed fear by reason of his Tamil ethnicity and accepted that the applicant had suffered a degree of harassment and discrimination by Sri Lankan forces at the time of the conflict. The Tribunal noted that the country information indicated that since the end of the war and the change of government in Sri Lanka, the situation had improved markedly for Tamils. The country information referred to by the Authority included the 2015 country information report paragraphs which had been updated by the 2017 country information report. Both reports were referred to in the footnote to the country information taken into account in that regard.

6. The Authority did not accept the applicant’s brother was arrested or detained on suspicion of being party of the LTTE. The Authority did not accept that the applicant’s brother was placed in jail in 2011 as a result of suspicion as the applicant claimed was advised to him by his brother’s wife in 2016. The Tribunal found there was no evidence that the applicant was ever involved in any LTTE activities. The Authority was not satisfied the applicant would be suspected of being involved with the LTTE on return to Sri Lanka.

7. The Authority found the applicant had departed Sri Lanka illegally. The Authority found that the applicant would be investigated, have his identity checked and be charged with an offence under the Immigrants and Emigrants Act 1948 (Sri Lanka). The Authority found that the fine could be paid by instalments and did not amount to serious harm in this case. The Authority was not satisfied there was a real chance that the applicant being detained for anything beyond a brief period, being a matter of several days at most. The Authority was not satisfied there was a real chance of the applicant being mistreated during the investigation or detention.

8. The Authority referred to the applicant’s concern that his details had been published on the Department’s website. The Authority noted that the applicant had been in regular contact with his family in Sri Lanka since the report was released in February 2014 and that the applicant had not indicated, nor was there any evidence to suggest that there had been any interest in him by the Sri Lankan authorities as a result of a breach.

9. Having considered the applicant’s claims singularly and cumulatively, the Authority found that the applicant does not have a well-founded fear of persecution.

10. The Authority turned to the issue of complementary protection and was not satisfied that the applicant faces a real risk of significant harm upon return to Sri Lanka for any of the reasons claimed. The Authority found the applicant did not meet the requirement of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court.

2. From the bar table, the applicant referred to having been asked a number of questions and given answers through an interpreter and that a mistake was made. When asked by the Court what the mistake was the applicant indicated the mistake was that everything he had written and said was true. The applicant indicated that he had provided all the material that was on the file and maintained that what he had said was correct. The applicant’s submissions from the bar table, in substance, invite this Court to engage in merits review. This Court has no power to review the merits. The Authority considered the applicant’s claims and made findings that were open to the Authority for the reasons given by the Authority. Those reasons in relation to the applicant’s claims cannot be said to be illogical, irrational or unreasonable.

3. The Authority took into account that the applicant had secured employment at a particular hotel where he worked until he left Sri Lanka in 2012. The Authority identified that part of the applicant’s claims were far-fetched and inconsistent. The Authority also took into account country information in determining the applicant’s claimed fear of harm by reason of being a Tamil and in relation to his illegal departure.

4. The Authority’s reasoning in relation to the applicant’s claims concerning the data breach and the absence of any communication to his family, with whom he has had contact since that breach, identifies a logical, rational or reasonable basis for the adverse findings. Nothing said by the applicant from the bar table identifies any jurisdictional error.

The grounds

1. The grounds in the amended application are as follows:

   1. The IAA fell into jurisdictional error in its erroneous application of section 473DD of the Act.

   Particulars

   a. Section 473DD of the Act relates to when the IAA can consider new information in exceptional circumstances;

   b. Section 473DD states that the IAA must not consider any new information unless: (a) there are exceptional circumstance and (b) the referred applicant satisfies the IAA that the new information could not be provided to the delegate before he/she made a decision and that the new information is credible personal information;

   c. Section 473DD only relates to new information provided to the IAA by the referred applicant;

   d. At [5] the IAA fell into jurisdictional error in applying the "exceptional circumstances" test from s473DD to allow itself to consider a recent DFAT report published on 24 January 2017 that was not before the delegate at the time of making the decision; and

   e. Section 473DD-C permits the IAA to consider new information that is not provided by the referred applicant but it ought to have given the new information identified as "new country information regarding Tamils and Sri Lankan returnees" to the referred applicant so that the referred applicant could comment on the new information in accordance with s473DE.

2. Ground 1 paragraph (a) to (d) advances an alleged error by taking into account the updated DFAT country information report in finding that there were exceptional circumstances to consider the same under s 473DD of the Act. The updated country information report was country information the Authority was entitled to take into account under s 473DE(3)(a) of the Act. The footnoted references to the 2017 report do not support any finding that the information in the 2017 report engaged any obligation under s 473DE of the Act.

3. It was open on the material before the Authority to take into account the new country information report and to find there were exceptional circumstances to consider that new information. No jurisdictional error as alleged in the Authority exercising its power under s 473DD of the Act is made out.

4. In relation s 473DC of the Act, the Authority had identified, taking into account DFAT country information report of 2015 and the updated report of 2017, was one in respect of which there is no identified information referred to in that report by reason of which it could be said to be legally unreasonable that the Authority had failed to consider to exercise its powers under s 473DC of the Act. Further, no submission was advanced to the Authority requesting the Authority to consider the exercise of its power under s 473DC of the Act in taking into account that new country information. No jurisdictional error is made out by grounds 1(a) to (d) or by ground 1(e).

Conclusion

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

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 August 2018