EZZ17 v Minister for Immigration & Anor
[2018] FCCA 2996
•26 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EZZ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2996 |
| Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – Sri Lankan citizen – Tamil Ethnicity – whether bias – whether wrong issue addressed or wrong question asked – whether jurisdictional error. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), Pt.7AA, Div.3, ss.5H, 5J, 36, 46A, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB Prevention of Terrorism Act 1979 (Sri Lanka) |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | EZZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 616 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 March 2018 |
| Date of Last Submission: | 28 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 26 October 2018 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms SJ Oliver |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 616 of 2017
| EZZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The application filed on 15 November 2017 seeks judicial review (“Judicial Review Application”) under the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) made on 19 October 2017. The IAA Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicant a Safe Haven Enterprise visa (“SHE Visa”). The IAA Decision appears at Court Book (“CB”) 137-157.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Sri Lanka of Tamil ethnicity, arrived in Australia as an unauthorised maritime arrival on 27 August 2012: CB 2-18;
b)on 14 September 2015, the Minister exercised his power to “lift the bar” pursuant to s.46A(1) of the Migration Act to permit the applicant to apply for the SHE Visa: CB 20;
c)on 6 September 2016, the applicant lodged an application for a SHE Visa and made the following claims for protection:
i)from 2006 to 2009 he was forced to assist the Liberation Tigers of Tamil Eelam (“LTTE”) with cutting down trees and digging bunkers, he had no choice but to do this work for the LTTE whenever they asked, and if he did not assist then the LTTE made life very difficult by restricting access to his workplace and his freedom of movement more generally: CB 69 at [4];
ii)as part of this forced participation with the LTTE he was also forced to undergo LTTE training where he was made to run around and do other exercises to test fitness and taught how to use a stick (in place of a weapon), but despite being forcefully recruited to train with and assist the LTTE he was never trained in weapons nor did he ever fight in combat with the LTTE: CB 69 at [5];
iii)during the intense fighting in Sri Lanka in 2009 towards the end of the civil war, the applicant and his family continuously moved around to try and avoid the fighting, but as Tamils they were forced to attend community funeral services in LTTE controlled areas that the LTTE organised for LTTE combatants who had been killed by shelling, and the Sri Lankan Army (“SLA”) did not approve of these community funeral services, and when they found out about them they would try and stop them by attacking the places where these services were held: CB 69-70 at [6]-[7];
iv)in March 2009 the applicant was driving a van with his and his family’s belongings as they sought to get away from the shelling, but his van broke down and shelling began, and he tried to run toward the bunkers but was hit, and as a result has required surgery on eight separate occasions, mainly for internal injuries that he suffered, and still has a scar: CB 70 at [10];
v)he was taken to a makeshift LTTE hospital in Puthumathalan but was told that if he did not get better medical treatment soon he would die, so he was transferred to the Government hospital in Trincomalee, and from there to a military hospital, also in Trincomalee, where he remained for about one and half months: CB 70 at [10];
vi)in the military hospital the applicant was subsequently visited on a number of occasions by the Central Intelligence Division (“CID”), a group of four or five officers wearing plain clothes, who would take him into another room where he would be interrogated about what he knew about the LTTE: CB 70 at [11];
vii)he was heavily sedated at the time of the interrogations, and cannot remember what he said to the CID, although he does remember that they would threaten him with not being able to see his family again: CB 70 at [11];
viii)when his condition improved he was transferred to a refugee camp in Vavuniya (“Refugee Camp”) where he continued to be questioned by members of the SLA: CB 70 at [11];
ix)he noticed that other people who had been in the camp for similar amounts of time to him began to be released from the Refugee Camp, but he and his family were not released as the SLA said he was under suspicion of being a member of the LTTE because the extent of his injuries suggested he must have been fighting with the LTTE: CB 70-71 at [12];
x)in November 2009 the applicant and his family were released from the Refugee Camp and moved to Jaffna: CB 71 at [13];
xi)in Jaffna, the SLA and CID continued to monitor his movements, requiring him to report twice per month to an SLA camp (“SLA Camp”): CB 71 at [13];
xii)he would subsequently be brought in any time that there was an explosion in the area to be interrogated as to what he knew and it was routine that during these interrogations one officer would ask the questions and threaten to kill him and another officer would beat him: CB 71 at [13] and [15]
xiii)he saw many Tamil people with similar experiences to him be arrested, tortured or disappear as the SLA found any excuse to accuse Tamil people so they could torture and kill them: CB 71 at [15];
xiv)the fear became so great he believed it would have only been a matter of time before the same would happen to him so he left Sri Lanka: CB 71 at [15];
xv)since he left Sri Lanka his wife and children were visited by men in civilian clothes who questioned his wife about his whereabouts on at least four or five occasions, and the last visit occurred in late 2012, and he had not mentioned these visits previously as his family did not tell him about them for some time: CB 71 at [16];
xvi)it is still unsafe for him to return to Sri Lanka as he will be taken into custody, tortured and possible killed, and he fears that because of where he is from in Sri Lanka, his Tamil ethnicity, and the permanent scarring that he sustained in the civil war, the Sri Lankan authorities will continue to suspect him of being an LTTE member who was involved in combat: CB 71-72 at [17]; and
xvii)he fears that the suspicion against him will only be made stronger due to his illegal departure from Sri Lanka, and he does not believe that there is anywhere in Sri Lanka that he could live safely as the Sri Lankan authorities that he fears have a presence at the airport and will become aware of his involuntarily return on his arrival at the airport: CB 71-72 at [17];
d)on 5 December 2016 the applicant attended an interview with the Delegate and on 20 February 2017 the Delegate’s Decision was to refuse to grant the applicant the SHE Visa: CB 86-109;
e)in February 2017, in accordance with s.473CA of the Migration Act, the matter was automatically referred to the IAA: CB 89-91 and 111-112;
f)on 8 April 2017 the applicant’s migration agent sent to the IAA written submissions, medical records and a photograph of the applicant’s scar: CB 115-127;
g)on 1 May 2017 the applicant provided the IAA with medical records of clearer resolution for consideration: CB 132-135; and
h)on 19 October 2017 the IAA Decision affirmed the Delegate’s Decision not to grant the applicant a SHE Visa: CB 136.
IAA Decision
In the IAA Decision, the IAA:
a)had regard to the information referred to it in accordance with s.473CB of the Migration Act: CB 138 at [2];
b)had regard to the submissions and further information provided on behalf of the applicant, but noted to the extent that the submissions discussed matters before the Delegate, responded to the Delegate’s Decision and referred to case law, the IAA did not consider this to be “new information” pursuant to s.473DD of the Migration Act: CB 138 at [2]-[4];
c)considered the following to be “new information” pursuant to section 473DD of the Migration Act::
i)medical reports and photographs of the applicant’s scarring, that had been provided with the applicant’s submissions, and which was credible personal information that may have affected the consideration of the applicant’s claims, and the IAA was satisfied that there were exceptional circumstances to justify considering the medical reports and photographs: CB 138 at [5]; and
ii)further country information referred to in the applicant’s submissions, including the Department of Foreign Affairs and Trade (“DFAT”) “Sri Lanka – Country Information Report” of 24 January 2017 (“2017 DFAT Country Report”) which the IAA was satisfied was information that was not, and could not have been, provided to the Delegate, and which was authoritative and more recent than the report referred to by the Delegate, and prepared for the specific purpose of protection status determination, and that there were therefore exceptional circumstances to justify considering the further country information: CB 138-139 at [6];
d)accepted the applicant was a Hindu Tamil and summarised the applicant’s protection claims as they appeared in his arrival interview, written claims in the SHE Visa application and his SHE Visa interview with the Delegate: CB 139-141 at [8]-[14];
e)accepted the applicant’s factual claims, both written and oral, and to the extent that there were any inconsistencies, preferred his oral evidence from the SHE Visa interview to the claims made in his written statement as the IAA found his delivery and responses at the SHE Visa interview to be “natural”: CB 141 at [16];
f)accepted the applicant’s evidence at the SHE Visa interview in relation to:
i)reporting to the SLA Camp after his release from the Refugee Camp in November 2009;
ii)visits to his wife by men in civilian clothes after he left Sri Lanka asking after his whereabouts, and that the last visit was in 2013, and that the visits stopped thereafter;
iii)reporting for 12 consecutive days after he was first released from the Refugee Camp and then reporting as required after incidents occurred in the area;
iv)being questioned and beaten when he reported to the SLA Camp;
v)his having a large scar, a foot or so long, on his back; and
vi)upon return to Sri Lanka, his being considered by the Sri Lankan authorities to be a failed asylum seeker who had departed illegally: CB 141-142 at [17-[19];
g)referred to the legislative provisions of the Migration Act the applicant was required to satisfy in order to be afforded a SHE Visa and which the IAA was required to apply in making its findings: CB 142 at [20]-[21], 151 at [62]-[63] and 154-157;
h)discussed the country information before it in respect of the applicant’s claims to fear harm as a Tamil male from the north of Sri Lanka with scarring, LTTE links and imputed pro-LTTE political opinion, including noting Tamils had been subject to longstanding, systematic discrimination in university education, government employment and other matters controlled by the government, and that as recently as 2015 there have been suggestions security forces regularly carried out surveillance and harassment against the Tamil community, especially young and middle-aged Tamil men: CB 142-143 at [22];
i)noted there have been a number of positive significant changes in Sri Lanka since the election of the Sirisena government in 2015, that political dialogue in Sri Lanka has increased under the Sirisena government and Tamils have a substantial level of political influence, and that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination as there are no current laws or policies that discriminate on the basis of ethnicity, including in relation to access to education, employment or access to housing: CB 142-143 at [23]-[25];
j)noted that monitoring and harassment of Tamils has decreased significantly under the Sirisena government, and that although there is still a sizable military presence in the north and east, it is largely idle as members of the Tamil community have described a positive shift in the nature of interactions with the authorities and they feel able to question the motives of, or object to, monitoring or observation activities, and while monolingual Tamil speakers can have difficulties communicating with the police, military and other government officials, these are practical difficulties as a result of a lack of qualified language teachers and other factors, rather than official discrimination and the applicant does not claim he suffered any harm from incidents of societal discrimination: CB 127 at [44];
k)country information indicates:
i)the monitoring and harassment of Tamils in the north and east has significantly decreased;
ii)there have been significant positive developments for Tamils in the country's politics; and
iii)the situation has generally improved,
and the IAA was not satisfied that the applicant is at risk of harm from societal discrimination, if returned to Sri Lanka, now or in the foreseeable future: CB 144 at [27];
l)the IAA had regard to various country information including:
i)the UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012 (“UNHCR 2012 Guidelines”) setting out the circumstances in which a person who had real or perceived links, or who originated from an area previously controlled by the LTTE, might have a need for international refugee protection: CB 144 at [28];
ii)noted that the 2017 DFAT Country Report noted that the UNHCR 2012 Guidelines recognised that each case depended on its individual circumstances, and that the Sri Lankan authorities were sensitive to the potential re-emergence of the LTTE, “and collect and maintain sophisticated intelligence, including electronic stop and watch databases, on former members and supporters of the LTTE”: CB 144-145 at [29];
iii)noted that Sri Lankans, irrespective of their religion, ethnicity, geographical location or other identity, faced “a low risk of mistreatment that can amount to torture”, that the incidents of torture have reduced in recent years, and that the allegations of torture relate to a relatively small number of cases compared to the total population: CB 145 at [30];
iv)noted that the United States Department of State (“USDOS”) Sri Lanka – Country Report on Human Rights Practices 2015 published in April 2016 (“USDOS 2016 Report”) noted that the use of force against civilians, though rare, remained a problem, and that there were credible reports that military forces had abducted, tortured, raped and sexually abused citizens, and that in the north and east of Sri Lanka security forces were responsible for detaining those accused of having LTTE connections, with observers reporting that interrogation sometimes included mistreatment and torture: CB 145 at [31]; and
v)the United Kingdom Home Office (“UKHO”) Country Information and Guidance. Sri Lanka: Tamil separatism, Version 2.0 published 19 May 2016 (“UKHO 2016 Report”) is cited, and notes that “simply being a Tamil does not give rise to protection claims”, that there have been positive developments in Sri Lanka under the Sirisena government since January 2015, that abductions and torture complaints have reduced, although new cases of Tamil victims continue to emerge, and the Sri Lankan authorities continue to monitor people, perceived to sympathise with the LTTE, and that there are reports of police using excessive force against Tamils perceived to support the LTTE: CB 145-146 at [32];
m)accepted the applicant:
i)is Tamil and he and his family lived at times in areas that that were controlled by the LTTE;
ii)was forced by the LTTE from 2006 to 2009 to do work, undertake physical training and to attend community funerals for LTTE combatants;
iii)was injured in a shell attack in March 2009, and as a result bears a large scar;
iv)while receiving treatment in the military hospital was interrogated and threatened by the CID, and upon his release from the Refugee Camp he was subject to questioning, threats and beatings by the SLA and CID; and
v)after he left Sri Lanka and until sometime in 2013, the Sri Lankan authorities visited his wife a number of times to ask after his whereabouts: CB 146 at [33];
n)having regard to the country information did not consider the applicant to be at risk of harm by reason of any real or perceived links to the LTTE, or for any imputed political opinion, or because of his scarring, now or in the reasonably foreseeable future: CB 146 at [34] as:
i)noting the UNHCR 2012 Guidelines and the UKHO 2016 Report, residence in a former LTTE controlled area, where people had to interact on a day to day basis with the LTTE, or being Tamil, does not of itself give rise to a need for protection and neither the applicant nor his family were members of the LTTE: CB 146 at [35];
ii)the applicant was not further detained, charged or sent for rehabilitation, but was released from the Refugee Camp in November 2009, notwithstanding that the country information indicated that the Sri Lankan authorities screened those in camps around the end of the Sri Lankan civil war to remove those suspected of being LTTE members or supporters, and that this was done at a time at which the applicant was already scarred: CB 146 at [35];
iii)the applicant although questioned, threatened and mistreated by the SLA and CID in 2009 and 2010, was never charged, detained under the Prevention of Terrorism Act 1979 (Sri Lanka) (“PT Act”), taken to court or imprisoned: CB 146 at [35];
iv)despite the Sri Lankan authorities collecting and maintaining sophisticated intelligence, including electronic stop and watch lists, the applicant was able to depart legally through the airport when he left for his pilgrimage to India for a month in late 2010 and the Sri Lankan authorities have shown no interest in the applicant or his whereabouts since 2013: CB 146 at [35]; and
v)country information suggests that the harassment and monitoring of Tamils, was common under the previous government, and that requirements that the applicant report to the SLA Camp and the visits by the authorities to his wife are not demonstrative of the Sri Lankan authorities specifically targeting the applicant as opposed to routine monitoring and harassment, particularly so where Sri Lankan authorities showed no interest in the applicant while he was in Sri Lanka from late 2010 until August 2012, that on the visits to his wife she was simply asked where the applicant was, and that those visits ceased once the applicant’s wife told the Sri Lankan authorities that the applicant was in Australia: CB 146-147 at [36];
o)rejected a submission that the applicant would suffer serious consequences upon return to Sri Lanka because he departed whilst he was under a reporting requirement, finding that the applicant’s reporting requirements ended in late 2010: CB 146-147 at [36];
p)rejected a submission that the SLA had killed his father, and relied upon the applicant’s evidence at the SHE Visa interview that his father’s death was associated with cancer: CB 146-147 at [36];
q)citing various country information, was satisfied that during the Sri Lankan civil war and in its immediate aftermath, scarring could contribute to a person's profile as a suspected LTTE member, however, found that that had not been the case since at least 2014, and thus was not satisfied that the large scar on the applicant’s back will in any way increase his risk profile with the Sri Lanka authorities or otherwise place him at risk of harm, if returned to Sri Lanka, now or in the in the foreseeable future: CB 147 at [37];
r)found that country information suggests the applicant does not have a profile which puts him at risk of harm from the Sri Lanka authorities, now or in the foreseeable future, because of any links to the LTTE, or for any imputed political views, because of his scarring, or because he would have been of any adverse interest to the Sri Lankan authorities: CB 147 at [38];
s)noted the applicant submitted that abductions, torture and the use of the PT Act against people with suspected LTTE links are still occurring, and that the applicant provided references and extracts from country information, and further noted that the DFAT 2017 Country Report does not suggest that such incidents do not occur, but generally assesses the security and political situation, and says it has improved, and that while incidents still occur they are not occurring to the same extent as they were, and that there has been an improvement since the change of government: CB 147-148 at [39];
t)given the DFAT 2017 Country Report was prepared specifically and solely for the purpose of protection status determination in Australia, and provides a general country overview from DFAT's on-the ground knowledge and discussions with a range of sources, considered the DFAT 2017 Country Report an authoritative source of information on conditions in Sri Lanka, and attached greater weight to it than to other country information: CB 147-148 at [39];
u)was satisfied that the applicant will not face a real chance of persecution from the Sri Lankan authorities due to any real or perceived links to the LTTE, for any imputed political opinion, because of his scarring, or as a Tamil male from the north, if returned to Sri Lanka, now or in the reasonably foreseeable future: CB 148 at [40];
v)in relation to persons returning to Sri Lanka who are suspected of having departed illegally, found that those persons:
i)are charged and arrested under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“I & E Act”) in relation to their illegal departure: CB 148 at [45];
ii)as part of the charge and arrest process most returnees are fingerprinted and photographed, and transported by the police to the nearest Magistrates Court at the first available opportunity once investigations are completed: CB 148 at [45];
iii)those who plead guilty are fined and are free to go, and if pleading not guilty most are immediately granted bail on a personal surety or may be required to have a family member act as guarantor: CB 149 at [46]; and
iv)those arrested can remain in police custody at the CID Airport Office for up to 24 hours, or should a Magistrate not be available before this time because of a weekend or public holiday, those charged may be held at a nearby prison not meeting international standards because of a lack of resources, overcrowding and poor sanitary conditions: CB 148 at [45];
w)accepted that the applicant will be identified as an asylum seeker on his return, but noted that country information indicates that the risk of mistreatment or torture for the majority of returnees, including those suspected of offences is low and continues to reduce though it does not suggest that there is no risk of torture or mistreatment: CB 149 at [47];
x)accepted that some asylum seekers with actual or perceived links to the LTTE may be at risk of harm when processed at the airport, however, the applicant was not of any adverse interest to the Sri Lankan authorities around the time of his departure from Sri Lanka, except as part of the Rajapaksa government's routine harassment and monitoring of Tamils, and that routine monitoring and harassment of Tamils is now significantly reduced under the Sirisena government, and therefore the applicant's profile is such that he will not be of interest to the Sri Lankan authorities if returned to Sri Lanka: CB 149 at [47];
y)responded to various submissions made by the applicant and:
i)did not accept that if someone else in a returning group of asylum seekers was of adverse interest to the authorities, the fact that he was processed en masse with that person of interest would increase the applicant's own risk profile: CB 149 at [48];
ii)was not satisfied that the applicant's profile will be increased by the fact that he has spent over five years in Australia as an asylum seeker, noting in that regard that the Sri Lankan authorities were only interested in significant involvement in pro-Tamil separatist diaspora activities, and that the applicant did not claim to have taken part in any such activities whilst in Australia: CB 149 at [49];
iii)further considered the applicant’s evidence that he was only a passenger on the boat, and found that the applicant may be detained and questioned at the airport for up to 24 hours, faces a fine for breaching the I & E Act and depending on the availability of a Magistrate at the time he is charged he may face a short period of being held in prison: CB 150 at [52]-[53];
iv)noted the applicant submitted that he would not have a family member present to post bail if required, but given that his evidence at the SHE Visa interview that his wife, mother and siblings still live in Jaffna, the IAA was satisfied that a family member will be able to act as a bail guarantor if one is required, and should the applicant be held over a weekend or public holiday or if a relative is required to travel from Jaffna to guarantee bail, the applicant would face only a brief period in detention: CB 150 at [53]-[54]; and
v)having referred to the High Court’s judgment in Minister for Immigration & Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610; (2015) 89 ALJR 369; (2015) 320 ALR 467; (2015) 146 ALD 480, and the necessity to determine whether a risk of loss of liberty constitutes serious harm by making a qualitative judgment, including an evaluation of the nature and gravity of the loss of liberty, determined that even having regard to general poor prison conditions, a few days in detention would not constitute the necessary level of threat to the applicant’s life or liberty, or be significant physical harassment or ill treatment under s.5J(5) of the Migration Act, or otherwise amount to serious harm for the applicant: CB 150 at [55]-[56];
z)found that considered separately, in combination, or cumulatively with a brief period of detention, none of the likely questioning of the applicant by the Sri Lankan authorities at the airport on his arrival, or any surety imposed or any fine imposed under the I & E Act, constituted a threat to the applicant’s life or liberty or significant physical harassment or ill treatment under s.5J(5) of the Migration Act or otherwise amounted to serious harm: CB 150 at [57];
aa)that the treatment of the applicant as an illegal departee if returned to Sri Lanka would be subject to the I & E Act, but in that regard the I & E Act was a law of general application applied to all returnees, and did not amount to persecution for the purposes of ss.5H(1) and 5J(1) of the Migration Act: CB 150-151 at [58];
bb)was not satisfied that the applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker from Australia who had departed Sri Lanka illegally, either now or in the reasonably foreseeable future: CB 151 at [59];
cc)found that the applicant did not meet the requirements to be a refugee under ss.5H(1) and 36(2)(a) of the Migration Act: CB 151 at [61];
dd)in relation to complementary protection assessment:
i)was not satisfied on the evidence before it that there is an intention to inflict pain or suffering, severe pain or suffering or extreme humiliation in any processing at the airport, brief detention, bail surety or fine imposed under the I & E Act: CB 152 at [66];
ii)that the circumstances considered do not amount to the imposition of the death penalty, an arbitrary deprivation of life or torture, and that the airport processing, any bail surety imposed, any fine imposed, and the poor prison conditions to which the applicant may be briefly subjected, of themselves, or in combination, constitute significant harm as defined under s.36(2A) of the Migration Act for any reason as a returned Tamil failed asylum seeker from Australia, for any links to the LTTE, for any imputed political opinion, because of his scarring, or as a Tamil male from the north, or any combination of those matters: CB 152 at [66]-[67];
iii)referred to the submission of the applicant that as there is real chance of serious or significant harm occurring inside the prisons, and that as Magistrates often do not inquire into potential ill-treatment and accept police requests to remand suspects into custody, therefore the process of being detained or imprisoned demonstrates a sufficient intention by the state to inflict pain or suffering or extreme humiliation on those detained or imprisoned: CB 152 at [68]; and
iv)referred to the finding previously made that under the I & E Act the applicant faces the imposition of a fine, the possible payment of a bail surety, and the possibility of a brief detention, depending on the availability of a Magistrate when he is processed at the airport and whether a family member who may have to travel from Jaffna is required to guarantee any bail surety, and that these separately or in combination do not amount to serious harm or significant harm, and confirmed it did not accept that any brief detention imposed before the applicant may be fined under the I & E Act is intended to cause pain or suffering, severe pain or suffering or extreme humiliation, and was not satisfied that a period of brief detention amounted to significant harm under s.36(2A) of the Migration Act, whether considered individually or cumulatively: CB 152 at [68]-[69]; and
ee)found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia, that there was a real risk that the applicant would suffer significant harm, and that the applicant did not therefore meet the criteria in s.36(2)(aa) of the Migration Act.
Judicial Review Application
The Judicial Review Application states the following grounds:
1. Jurisdictional error.
2. Bias based on conscious or unconscious prejudice by ignoring relevant materials.
3. Identifying a wrong issue on a wrong question
In support of the Judicial Review Application the applicant provided an affidavit affirmed 15 November 2017 (“Applicant’s Affidavit”). At [2]-[4] of the annexure marked II to the Applicant’s Affidavit (“Annexure II”) the applicant states that (transcribed verbatim):
2. My appeal is based on Jurisdictional Error where the IAA made a mistake by exceeding or by falling its proper jurisdictional function and thereby made an error by law contained in the provision of the Migration Act 1958.
3. In this regard reference is made to the following paragraphs of IAA decision: 5, 6,8,11, 15, 16, 37, 38,40,49,63 and 64. The latest reports on Sri Lanka clearly indicate that the situation is same on the date the IAA held its deliberations as much as it is an ongoing situation: report of the UNHCR entitled: International Truth and Justice Project report submitted on the 14th of July 2017, article by Taylor Dibbert 21st of July 2017 and the moves by the Sri Lankan government to introduce a new Counter Terrorism Act.
4. Having been informed of these acts and events which I submit is evidence makes me afraid to return to Sri Lanka as a person who will be persecuted and given no protection by the government of Sri Lanka.
On 15 December 2017 a Registrar of the Court made orders (“Registrar’s Orders”) to progress this matter to a hearing listed for 28 March 2018. The Registrar’s Orders provided the opportunity for the applicant to file and serve any amended Judicial Review Application “giving complete particulars of each ground of review”, additional supporting affidavits and to file written submissions prior to the hearing. The applicant did not file or serve any further materials pursuant to the Registrar’s Orders.
At hearing the applicant was given an opportunity to make oral submissions, and did so, stating as follows:
a)he cannot go back to Sri Lanka as there are still lots of problems there;
b)the interview with the Delegate was done over the telephone, and the interpreter was also on the telephone, and the link was interrupted two or three times; and
c)he did not have an opportunity to tell this to the IAA, but he submitted other documents he thought were relevant.
It was apparent from the applicant’s oral submission that he was raising an issue with respect to the procedural fairness of the interview before the Delegate, and in exercising the Court’s duty to remain vigilant, particularly in the case involving a litigant in person, to the possibility of jurisdictional error: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”), the Court will treat this as an additional ground of review (being ground 4).
Minister’s Submissions
In seeking that the Judicial Review Application be dismissed the Minister made the following submissions:
a)all of the grounds merely assert jurisdictional error, without providing any particularisation as to any alleged jurisdictional error, and without particularisation as to the precise claim that the applicant alleges, the grounds are meaningless: SZNXA v Minister for Immigration & Citizenship [2010] FCA 775;
b)Annexure II at [3] may be taken as purporting to provide some particularisation of the grounds, and to the extent it does:
i)there is no error in CB 138-139 at [5] and [6] of the IAA Decision as in these paragraphs the IAA considered whether the material provided to it was new information, and found that the requirements of s.473DD of the Migration Act had been met for the consideration of new information by the IAA, and there is therefore no error in the IAA’s application of the law;
ii)in CB 139 at [8] and 139-140 at [11] of the IAA Decision, the IAA did no more than accurately summarise the applicant’s claims;
iii)in CB 141 at [15] of the IAA Decision, the IAA simply recounted country information, and it is not apparent what error is said to be established by reference to this paragraph;
iv)in CB 141 at [16] of the IAA Decision, the IAA generally accepts the applicant’s claims;
v)in CB 151 at [63] of the IAA Decision, the IAA correctly identified the relevant law to be applied in making a decision as to whether there was a real risk of significant harm for the purposes of s.36(2A) of the Migration Act; and
vi)insofar as the applicant appears to be taking issue with CB 147 at [37] and [38], 148 at [40], 149 at [49] and 151 at [64] of the IAA Decision, which contain the IAA’s findings concerning the applicant’s risk of harm, he is impermissibly seeking merits review of the IAA Decision.
c)in relation to grounds 1 and 2:
i)the IAA had jurisdiction to review the decision of the Delegate under s.473CC of the Migration Act and in exercising that jurisdiction, the combined effect of ss.473DA(1), 473DB(1) and 473DC(2) of the Migration Act is that the IAA was required to conduct a review of the Delegate’s Decision on the papers; and
ii)it is clear that the purpose of Part 7AA of the Migration Act is to provide a mechanism for a limited review of fast track reviewable decisions and the common law rules of procedural fairness do not govern the way in which reviews by the IAA are to be conducted under Part 7AA of the Migration Act: CCW16 v Minister for Immigration and Border Protection [2017] FCCA 2 at [69] per Judge Driver;
d)despite the fact that the IAA was obliged to review the Delegate’s Decision by considering the review material without accepting or requesting new information, and without interviewing the applicant, in the present case the IAA did have regard to and ultimately accepted the new information provided by the applicant as it was satisfied that there were exceptional circumstances to justify considering the “new information” in accordance with section 473DD(a) of the Migration Act, and the IAA Decision sets out the basis upon which the IAA was satisfied that the medical reports and photographs, the further country information and the DFAT 2017 Country Report were to be considered as new information, thus there is no jurisdictional error in the IAA having regard to this new information;
e)was not satisfied that the submissions provided on behalf of the applicant, insofar as they discussed evidence which was before the Delegate or responded to the Delegate’s Decision, was “new information” and given that those portions of the submissions did not contain any new facts or circumstances not before the Delegate, this case can be distinguished from CQY16 v Minister for Immigration and Anor [2017] FCCA 236;
f)in relation to ground 2 there is nothing in the IAA Decision that would cause a fair minded and informed person to reasonably apprehend that the IAA might not have bought an impartial mind to bear on the decision and it is not apparent from the IAA’s Decision record that it ignored relevant materials, noting that the applicant provided “new information” to the IAA, and the IAA was satisfied that there were exceptional circumstances to justify considering this information; and
g)in relation to ground 3, it is meaningless without particularisation, but in any event, the IAA correctly identified the relevant law to be applied, accurately identified the applicant’s claims and correctly applied the law in its consideration of this matter and no error is apparent in the IAA Decision.
In response to the applicant raising an additional ground of review at the hearing concerning the interview with the Delegate the Minister responded as follows:
a)the applicant’s migration agent provided written submissions to the IAA in response to the Delegate’s Decision, and at no time was any issue raised regarding the manner in which the interview with the Delegate was carried out, though the submissions did refer to the Delegate failing to consider claims made by the applicant, or consequences that were apparent on their face: CB 116-119;
b)the applicant’s oral submission concerns the interview with the Delegate and not the IAA, and in any event the IAA had before it the applicant’s signed statutory declaration asserting each of his claims for protection and each of those claims formed part of the IAA’s summary of the applicant’s claims in the IAA Decision: CB 69-72 and CB 139-140 at [8]-[11]; and
c)pursuant to s.473DD of the Migration Act, the IAA considered and had regard to the new information the applicant’s migration agent provided to it.
Consideration
Jurisdictional Error Required
The IAA Decision may be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the IAA may constitute jurisdictional error if the IAA :
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
The IAA Decision may also be tainted by jurisdictional error where there is a denial of procedural fairness as expressly required by the terms of the Migration Act (in this case Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB): SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, or by legal unreasonableness: as to which see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
This Court does not have the jurisdiction to review the merits of the IAA Decision, or determine the applicant’s claim for a SHE Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Grounds generally
The grounds of the Judicial Review Application lack particulars. As is now known and seemingly well accepted by both this Court and the Federal Court a failure to particularise means that the grounds cannot succeed: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J (“AYE16”); AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J (“AQN15”); WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (“WZAVW”).
The applicant is however, a litigant in person, and the Court must try to ensure he has a fair hearing and that no injustice occurs: MZAIB at [100] and [112] per Mortimer J, and so to the extent the Applicant’s Affidavit, Annexure II, and his oral submissions might support the grounds of the Judicial Review Application by providing some particulars which enable them to be read as more than mere bald assertions devoid of any detail, explanation or contextual applicability to the applicant’s circumstances, the Court will consider them and not merely dismiss them for want of particularisation.
Ground 1 and Annexure II
Ground 1 of the applicant’s Judicial Review Application states “jurisdictional error”. The mere assertion of jurisdictional error must fail as a ground of review. Moreover, assertion of jurisdictional error as a cloak for mere disagreement with the IAA Decision cannot succeed, because mere disagreement with the IAA Decision does not amount to jurisdictional error: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J; Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J.
The Court notes that in the IAA Decision, the IAA:
a)confirmed the material before the Delegate had been provided pursuant to s.473CB of the Migration Act, assessed the further documents the applicant had supplied to the IAA and applied s.473DD of the Migration Act to the “new information” to determine if it could have regard to the further documents: CB 138 at [2]-[6] ;
b)correctly stated the applicant was not required to be provided with a full copy of the DFAT 2017 Country Report in order to be afforded procedural fairness as pursuant to s.473DE(3)(a) of the Migration Act the information is exempt: CB 139 at [7];
c)summarised the applicant’s claims: CB 139 at [8];
d)made factual findings with respect to each of the claims made by the applicant referring to the evidence of the applicant, other materials referred by the Delegate and country information: CB 139-142 at [10]-[19];
e)set out in detail its assessment of whether or not the applicant was a refugee, including addressing the additional claims made on his behalf by his migration agent in the written submissions, having regard to whether or not he had a well-founded fear of persecution if returned to Sri Lanka: CB 142-151 at [22]-[61];
f)undertook a complementary protection assessment by reference to whether or not there was a real risk that the applicant would suffer significant harm if removed from Australia to Sri Lanka: CB 151-153 at [62]-[70]; and
g)set out at CB 154-157 the relevant law to which it had had regard in making the IAA Decision.
Having read the IAA Decision, and bearing in mind the obligation not to do so overzealously in search of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, there is nothing illogical or irrational in the reasoning on the face of the IAA Decision, and there is an evident and intelligible justification for the conclusions reached in the IAA Decision: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [76] per Hayne, Kiefel and Bell JJ. The IAA’s consideration of the applicant’s claims was comprehensive and it made findings and reached conclusions that were open to it on the evidence.
The Court has considered the Applicant’s Affidavit and Annexure II when considering if the IAA Decision was affected by jurisdictional error because it ignored relevant material. The applicant has, in Annexure II, referred to a number of paragraphs of the IAA Decision to support his claim of jurisdictional error as well as referring to further country information.
The IAA has no duty to obtain further information, and the “International Truth and Justice Project report submitted on the 14th of July 2017” and “article by Taylor Dibbert 21st of July 2017,” both post-dated the Delegate’s Decision. The role of the IAA is to conduct a review “on the papers”, that being the material referred by the Delegate pursuant to s.473CB of the Migration Act. These materials were produced well after the IAA had invited the applicant to provide information, and it was not possible for these materials to have put before the IAA within the 21 day timeframe the IAA provided to the applicant to submit new information. Further, the IAA is itself bound by s.473DD of the Migration Act, therefore in order for the material to be accepted and the IAA enabled to consider it in its assessment the “new information” must meet the test of there being “exceptional circumstances” for the material to be considered, and that such information could not have been before put before the Delegate (which it could not), or is credible personal information which may have affected the consideration of the applicant’s claims, which it is not, given that it is country information: Migration Act, s.473DD.
Insofar as the applicant refers to the development of new counter-terrorism legislation in Sri Lanka, the applicant raised no claims concerning this before the Delegate or in the new information submitted to the IAA, and the IAA addressed the concerns faced by Tamils and imputed LTTE members under the PT Act: CB 143 at [26], CB 146 at [35] and CB 147 at [39].
The matters raised by Annexure II seemingly seek to identify matters establishing jurisdictional error in the IAA Decision, and therefore sit within ground 1 of the Judicial Review Application.
In relation to Annexure II at [2] there is once again an assertion of jurisdictional error without particulars which cannot succeed, and which does not establish jurisdictional error in the IAA Decision: see AYE16, AQN15 and WZAVW as cited at [14] above. Otherwise:
a)no error of any kind arises from CB 138 at [5] and [6] where the IAA made findings favourable to the applicant in finding that “new information” provided by the applicant satisfied s.473DD of the Migration Act. The IAA correctly examined and assessed the material against the criterion in s.473DD of the Migration, and the finding did not exceed the jurisdiction of the IAA under the Migration Act, nor was there any failure to exercise jurisdiction;
b)at CB 139 at [8] the IAA provides a dot point summary of the applicant’s claims and at CB 139-140 at [11] the IAA recounts the applicant’s claims and the events from 2006-2009. The Court considers these paragraphs accurately reflect the applicant’s claims as they arise on the material before the Court and the IAA has not overlooked any claims or any relevant integers of the applicant’s claims: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J, and therefore no jurisdictional error arises in relation thereto;
c)at CB 141 at [15], country information from a number of different source is recounted, including the DFAT 2017 Country Report which the IAA noted was not before the Delegate but considered satisfied s.473DD of the Migration Act, and the simple recounting and summarising of that country information without any discernible error cannot give rise to jurisdictional error;
d)if the applicant is suggesting the reports he has referred to at Annexure II at [3] ought to have been considered by the IAA it was for the IAA to choose and give weight to such country information as it saw fit, and is not a matter with which the Court will generally interfere: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, particularly where, as here, the IAA had regard to other recent and authoritative country information, and where the country information now raised by the applicant was not brought to the IAA’s attention by the applicant;
e)at CB 141 at [16] of the IAA Decision the IAA made credibility findings. Credibility findings are matters for the IAA, and there is no jurisdictional error if the findings are logical, reasonable and supported by evidence: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J, and reasonably open to be made: CQG15 v Minister for Immigration & Border Protection & Anor [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [37]-[38] per McKerracher, Griffiths and Rangiah JJ, as they were here;
f)at CB 151 at [63] the IAA Decision sets out the elements of s.36(2A) of the Migration Act, and does so correctly, and there can be no error, jurisdictional or otherwise, in correctly setting out the elements of a statutory provision relevant to the exercise of an administrative decision-maker’s task (here the IAA), and therefore no jurisdictional error arises from the IAA having done so here; and
g)with respect to CB 137 at [37] and [38], 148 at [40], 149 at [49] and 151 at [64], those paragraphs contain the IAA’s findings concerning the applicant’s risk of harm, and the applicant is impermissibly seeking merits review of the IAA Decision in referring to these findings, contrary to the long accepted principle in Wu Shan Liang. [REVISE – also consider individual paras]
No jurisdictional error arises in the paragraphs specified in Annexure II, nor does the Court consider the IAA has failed to exercise, nor has its exercise exceeded, the jurisdiction and statutory powers which Pt.7AA of the Migration Act has conferred upon the IAA.
In relation to Annexure II at [4] what is said there by the applicant is a submission as to how the evidence ought to be perceived, or ought to have been perceived by the IAA in making the IAA Decision, and a statement as to what the applicant says the effect of that evidence ought to be, namely that he will be persecuted and given no protection by the Sri Lankan government, and it is therefore no more than, at its highest, an impermissible request for merits review contrary to the long accepted principle set out Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. No jurisdictional error arises in relation to Annexure II at [4].
The IAA extended ample opportunity to the applicant to ensure he had a real and meaningful opportunity to provide the additional information, and in particular, the photographs he wished the IAA to take into account even where the IAA was not obliged to do so: Migration Act, s.473DB. There is nothing to suggest any breach of the IAA’s procedural fairness obligations: Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB.
Ground 1 and Annexure II do not establish any jurisdictional error in the IAA Decision.
Ground 2
An allegation of bias is a serious matter and must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J (and see also at [127] per Kirby J) (“Jia Legeng”). To constitute bias it must be established that:
a)the IAA had a pre-existing state of mind disabling it from undertaking, or rendering it unwilling to undertake, any proper assessment of relevant issues: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the IAA, might reasonably apprehend that the IAA may not have brought an impartial mind to the assessment of relevant issues: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The applicant has not distinctly or clearly proven that the IAA was either consciously or unconsciously biased because it ignored relevant material. There is no evidence to suggest the IAA had a pre-existing state of mind which precluded it from making an impartial assessment, nor would a fair-minded lay observer reasonably apprehend that the IAA may not have brought an impartial mind to the assessment of relevant issues.
Ground 2 does not establish any jurisdictional error in the IAA Decision.
Ground 3
There is nothing in the IAA Decision which indicates that the IAA identified any wrong issue, or asked any wrong question; or, as it is put in ground 3, “a wrong issue on a wrong question”. The IAA was not to ask itself what the correct and preferable decision was, rather it was whether the applicant satisfied “the particular criteria which the [Delegate] considered to be determinative”: BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169 at [87] per Charlesworth J. In the Court’s view the IAA did so when correctly and comprehensively setting out the relevant law and SHE Visa criteria, and assessed each of the claims made by the applicant by reference to that criteria.
No jurisdictional error in the IAA Decision is established by ground 3.
Ground 4
As alluded to at [8] above, the applicant’s oral submission raised issue with the interview conducted by the Delegate, specifically that it was undertaken over the telephone and had been “disrupted”. There appears to be an assertion of a denial of procedural fairness, and, impliedly, an assertion that the IAA failed to consider that issue.
The applicant has failed to provide any evidence in support of this claim. The Court notes there is nothing in the materials before it to confirm the applicant’s interview with the Delegate did indeed take place over the phone: CB 86-109.
There was nothing on the face of the Delegate’s Decision to suggest there were any difficulties in the applicant expressing his claims, indeed in the Delegate’s Decision there are references to the applicant providing information at the interview: CB 93 at Part 4. Furthermore, the IAA Decision:
a)records that the “recording of the SHEV interview shows that the applicant's injury and scarring was discussed at length”: CB 138 at [5]; and
b)at CB 141 at [16] states:
16. There were some discrepancies between the applicant's written statements and his evidence at the SHEV interview. Although his evidence was occasionally confused, such as when he was recounting the sequence and length of hospitals stays after his injury, he generally delivered his evidence at the SHEV interview in a natural and responsive manner. I prefer that evidence over his written statements to the extent of any inconsistencies. I accept the applicant's claims from his SHEV interview and, to the extent they are not inconsistent with his evidence at the SHEV interview, I also accept the claims in his statements.
Because the applicant, who was represented before the IAA, did not raise any issue with the conduct of the Delegate’s interview, and has produced no evidence in support of his claim to the Court that the alleged defect in the Delegate’s interview infected the IAA Decision with jurisdictional error, this ground cannot be made out. Procedural fairness required only that the applicant be given a reasonable opportunity to present his case: it was not for the IAA to ensure that the applicant took the best advantage of that opportunity: Sullivan v Department of Transport (1978) 20 ALR 323.
No jurisdictional error arises from the oral submission made at hearing in relation to the new ground 4.
Conclusion and Orders
The Court has concluded that the IAA Decision is not affected by jurisdictional error. It follows that there must be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 26 October 2018
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