Etz18 v Minister for Immigration

[2019] FCCA 3419

FEDERAL CIRCUIT COURT OF AUSTRALIA

ETZ18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3419

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa, Subclass 790 – whether there was jurisdictional error in the Authority’s decision – whether the Authority’s decision was bias based on conscious or unconscious prejudice by ignoring relevant materials – whether the Authority identified a wrong issue on a wrong question – whether the Authority failed to provide the relevant procedural fairness requirements under Division 3 Part 7AA of the Migration Act 1958 (Cth)

Legislation:

Migration Act 1958 (Cth), ss,36, 473DB(1), 473DC, 473DD, 473FB(5),

Division 3 Part 7AA

Cases cited:

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

AQN15 v Minister for Immigration and Anor [2016] FCCA 58

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR

352

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205

CLR 507

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 668

Applicant: ETZ18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 491 of 2018

Judgment of: Judge Humphreys

Hearing date: 18 November 2019

Date of Last Submission: 18 November 2019

Delivered at: Perth

Delivered on: 18 November 2019

REPRESENTATION

Applicant appeared in person

Counsel for the Respondents: Mr Hannan

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 491 of 2018

ETZ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant claims to be a Hindu and a citizen of Sri Lankan and is of Tamil ethnicity. The applicant arrived in Australia by boat on 24 December 2012. The applicant applied for a Safe Haven Enterprise visa, Subclass 790 on 13 June 2017. A delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the visa application on 3 November 2017. The applicant sought merits review at the Immigration Assessment Authority (“the Authority”). On 24 August 2018, the Authority affirmed the delegate’s decision to reject the SHEV application. The applicant now seeks judicial review of the Authority’s decision.

The Immigration Assessment Authority Decision

1. At paragraphs 3 to 16 of the decision, the Authority deals with information before the Authority and the new information provided by the applicant.

2. At paragraph 7 of its decision, the Authority rejects general country information which was provided by the applicant, which pre-dates the delegate’s decision. The Authority was not satisfied that the requirements of s 473DD(b)(i) or s 473DD(b)(ii) of the Migration Act 1958 (Cth) (“the Act”) were satisfied.

3. At paragraph 8 of its decision, the Authority deals with online media reports from The Hindu Times, The Conversation and SBS, all of which appear to be publicly available material that pre‑dates the Minister’s decision. The Authority goes on to discuss that particular information. The last line of paragraph 8, the Authority says (verbatim):

   I satisfied exceptional circumstances exist to justify their consideration.

   It has been put to the Court that the word “not” should be inserted in order for the paragraph to make sense, such that it should read:

   I am not satisfied exceptional circumstances exist to justify their consideration.

   Reading the paragraph as a whole, I am satisfied that the correct interpretation should read, “not satisfied exceptional circumstances”, to justify the consideration of the information.

4. At paragraph 9 of its decision, the Authority deals with the provision of materials, including a reference to a report from The Guardian dated 7 January 2016. The Authority notes that the submission does not include an extract or copy of the report which is referred to. After noting the submission was prepared by a registered migration agent, the Authority determined, pursuant to s 473DC(2) and s 473FB(5) of the Act, not to accept the report. The Court notes at this particular point in time, that s 473FB(5) of the Act provides a basis whereby “new information” may be rejected if it does not comply with the ‘Practice Direction for Applicants, Representatives and Authorised Recipients’ which was published by the Authority on 1 February 2017.

5. At paragraph 10 of its decision, the Authority deals with a radiological report from Dr Maurice Nolan, dated 14 August 2014. Whilst it is conceded that this is new information, it is noted that the report pre‑dates the delegate’s decision by three years. Whilst the report confirms the applicant has an injury to his knee, it does not provide any information on how it has occurred. The Authority determined there were no exceptional circumstances under s 473DD of the Act to warrant considering this information.

6. At paragraph 11 of its decision, the Authority deals with new claim that since the applicant has arrived in Australia, he has attended ceremonies to commemorate Tamils who died in the civil war (“Maaveerar Naal”). Contained within that information are three photographs, which purport to show the applicant attending a ceremony. At paragraph 12 of its decision, the Authority notes that the applicant’s legal representative submitted that the applicant was unwilling to provide this information for fear it would be disclosed to the Sri Lankan authorities.

7. At paragraph 14 of its decision, the Authority notes that the new information is also vague in that there was no corroborative material to show that the applicant attended a ceremony to commemorate Tamils who died in the civil war. Nor was there any suggestion that the applicant’s attendance would be evidence of support for the Liberation Tamil Tigers of Eelam (“LTTE”) or that he was supporting a separatist agenda. At paragraph 15 of its decision, the Authority concluded that there were no exceptional circumstances to justify this new information.

8. At paragraph 16 of its decision, the Authority notes the new reports by the Australian Department of Foreign Affairs and Trade (“DFAT”) on Sri Lanka published on 23 May 2018. This updated information had not been before the delegate and the Authority was satisfied that there were exceptional circumstances to warrant its consideration.

9. At paragraph 17 of its decision, the Authority sets out the applicant’s claims. They can be summarised as follows:

   ·The applicant was abducted by LTTE. The applicant was taken to an LTTE training camp and detained for about three months. The applicant was trained by the LTTE until he managed to escape.

   ·Subsequent to the applicant’s escape, he was involved in a fight and was arrested by the police and detained for 15 days.

   ·Following the applicant’s release, he feared that a Sri Lankan Army officer was paid to shoot him but did not do so.

   ·The applicant fears he will be harassed because of his Tamil ethnicity, his fears relating to his illegal departure from Sri Lanka and being returned as a failed asylum seeker, his attendance at ceremonies in Australia to commemorate Tamils who died in the civil war and that this will give him a profile which would attract adverse attention to Sri Lankan security authorities.

10. The Authority’s factual findings are set out in paragraphs 18 to 35 of its decision. The Authority rejects the applicant’s claims and finds, at paragraph 39 of its decision, that he is a wholly unreliable witness. This conclusion is based on a number of factors. The Authority notes the applicant claims he travelled from a Sri Lankan army controlled area to an LTTE controlled area, at a critical stage of the war. The Authority finds this lacks credibility. The applicant’s claims of being abducted by the LTTE, then training with them and his subsequent escape, is also rejected.

11. The Authority noted that the applicant initially claimed that he was in possession of an LTTE identity card but later conceded that this was, in fact, only a photo of him in LTTE uniform. Even this claim is rejected as, in the Authority’s view, it is simply not credible that the applicant would carry such a photo on his person, while travelling through Sri Lankan army controlled checkpoints.

12. At paragraphs 24 to 25 of its decision, the Authority does not accept that the applicant trained with the LTTE or that, following his claimed escape, the LTTE searched for him. Paragraphs 26 to 31 of the Authority’s decision deal with the applicant’s claim that he was in a fight with local youths, was subsequently arrested and then detained for 15 days. The Authority also deals with the applicant’s claim that a corrupt Sri Lankan army officer was bribed to shoot and kill him. The Authority found the applicant’s evidence was contradictory and vague. A document purporting to support the applicant’s claims is dismissed, as the document is not even relevant to his claims.

13. At paragraph 32 of its decision, the Authority notes the applicant obtained a passport and travelled to Dubai in 2011/2012. The applicant was away for a period of 7 to 11 months. The Authority views this as evidence that the applicant is of no interest to Sri Lankan security authorities. The claim that the applicant was detained for many days and beaten by the Sri Lankan army because the photo of him in LTTE uniform fell out of his wallet and his subsequent escape from detention are again dismissed for lacking credibility.

14. Paragraphs 35 to 52 of the Authority’s decision deal with the applicant’s refugee protection claims. Given the rejection by the Authority of each and every claim made by the applicant, the Authority was left to consider any issues that might occur upon his return as an illegal departee. Whilst acknowledging that the applicant will be detained and questioned upon his arrival as an illegal departee and placed before a Magistrate, with the possibility that he may spend a couple of days in gaol, should he return on a weekend, the Authority was not satisfied that the applicant faces a real chance of persecution upon his return as a failed asylum seeker.

15. Accordingly, the Authority found the applicant does not meet the criteria of a refugee under s 36(2)(a) of the Act.

16. Paragraphs 53 to 59 of the Authority’s decision, deal with complementary protection considerations. For the same reasons, the Authority found the applicant does not meet the criteria for complementary protection under s 36(2)(aa) of the Act.

Grounds of Appeal

1. Three grounds of appeal are set out in the application filed with the Court. They are as follows:

   (1) Jurisdictional error.

   (2) Bias based on conscious or unconscious prejudice by ignoring relevant materials.

   (3) Identifying a wrong issue on a wrong question.

The Applicant’s Submissions

1. The applicant appeared before the Court unrepresented, but was assisted by a Tamil interpreter. No written submissions were filed to support the applicant’s grounds of appeal. It became apparent during the course of the hearing that the applicant wished to file fresh documentary evidence with the Court to support his claim. The Court carefully explained to the applicant that this was not possible, as the Court was restricted to considering whether or not there was jurisdictional error in the Authority’s decision. As it was not conducting a merits review, the Court could not accept the new information.

2. The applicant also raised concerns as to the rejection of the information that he had provided to the Authority and his lack of understanding as to why the information was rejected.

The First Respondent’s Submissions

1. During the course of oral submissions, counsel on behalf of the first respondent, very carefully and helpfully, went through the reasons why the Authority rejected the new information that was provided to it. It was an endeavour to assist the applicant in understanding why the information was rejected. In his written submissions, Mr Hannan noted that Ground 1 was a broad and un-particularised assertion and could be dismissed for that reason alone (see AQN15 v Minister for Immigration and Anor [2016] FCCA 58 (“AQN15”) at paragraphs [31] - [35]).

2. Counsel submitted that there was nothing irrational or illogical about the decision by the Authority and there was no evidence that the Authority failed to provide the relevant procedural fairness requirements under Division 3 Part 7AA of the Act. It was submitted that there was nothing in the decision to indicate that the Authority relied on irrelevant material in its consideration. The Authority exercised its discretion to reject information under s 473DD, s 473DB(1) and s 473FB(5) of the Act as it was unremarkable, lawful and a reasonable exercise of its discretion.

3. It was submitted the Authority exercised its discretion reasonably, noting that it determined to admit new country information, as it was satisfied there were exceptional circumstances to do so.

4. It was submitted that Ground 2 asserts bias. Bias must be distinctly and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507). There was nothing in the Authority’s decision to indicate either actual or apprehended bias. There was no evidence to indicate pre-judgment. There was nothing in the decision to indicate the Authority did not evaluate all of the material with anything other than an open mind.

5. It was submitted that the applicant had not identified which material was ignored. It was submitted that the Authority considered all claims of evidence subject to the requirements of s 437DD and s 473FB(5) of the Act. It was submitted that the Authority engaged in an active intellectual process (see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at paragraph [45]). The Authority considered all relevant material including the applicant’s arrival interview, his Safe Haven Enterprise visa interview and documentary evidence provided to the delegate. It was submitted that the applicant cannot show any actual apprehended bias or that any relevant material was ignored.

6. It was submitted that throughout Ground 3, the applicant had not specified what wrong issue was identified or what wrong question was asked. It was submitted that the Authority considered the matter with reference to the criteria under s 36(2)(a) and s 36(2)(aa) of the Act. The Authority made reasonable factual findings and correctly applied them to the relevant legal requirements. Accordingly, the first respondent submitted that no jurisdictional error was established.

Consideration

1. Each of the claims made by the applicant is a mere assertion and lacks any relevant particulars or submissions to support the claim. I am satisfied that on that ground alone, each of the claims could be dismissed in accordance with AQN15. However, as the applicant is unrepresented, it is appropriate that this Court deal with each of the grounds in detail.

Ground 1

1. I am satisfied that the Authority correctly applied the law and its relevant discretion in its decision to either reject or admit certain new information. This appeared to be the main area of concern of the applicant. The Authority correctly set out, in each case, the nature of the information and then applied s 473DD of the Act, as to whether or not the material should be admitted. The fact that the Authority accepted some information but rejected others, is evidence of a considered approach by the Authority, consistent with a reasonable, logical approach as to whether or not new information should be received.

2. I also note that under Division 3 Part 7AA of the Act, the Authority is not generally required to conduct reviews on the papers and not to accept new information or interview the applicant. The general situation is that there must be exceptional circumstances before new information will be received. I am not satisfied that there was any jurisdictional error in the decision to admit some information and reject others.

3. In relation to the factual findings, I note that the Authority is not required to accept uncritically, any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at paragraph [451]). I am satisfied that each of the factual findings, including the adverse credit findings, were open to the Authority on the evidence before it. The findings were not tainted by any failure to afford procedural fairness, nor did the Authority reach a finding without a logical or probative basis or any unreasonableness (see ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109).

4. I am satisfied all procedural requirements under Division 3 Part 7AA of the Act were complied with. I am unable to identify any irrelevant material that was taken into account.

5. Accordingly, Ground 1 fails.

Ground 2

1. There is nothing to indicate that the Authority went about its task with other than an open mind, capable of persuasion. The fact that the Authority made adverse factual findings does not give rise to an inference of bias (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at paragraph [38]. A fair reading of the decision gives rise to no evidence of pre‑judgment. I can find no relevant material that was ignored by the Authority and I am satisfied that the Authority did engage in an active intellectual process in considering the applicant’s claims.

2. Therefore, Ground 2 must fail.

Ground 3

1. The lack of particulars made by the applicant, makes this assertion almost impossible to answer. I am satisfied that the Authority did turn its mind to the relevant criteria under s 36(2)(a) and s 36(2)(aa) of the Act. The Authority asked itself the correct questions. If anything, this ground asks the Court to engage in merits review and amounts to no more than an emphatic disagreement with the outcome found by the Authority.

2. There is no jurisdictional error apparent in Ground 3.

Conclusion

1. I have carefully read the decision and, bearing in mind that the applicant is unrepresented, I am satisfied that there is no other jurisdictional error apparent on the record that has not been articulated.

2. Accordingly, the application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 12 December 2019