FHB17 v Minister for Immigration

[2018] FCCA 1223

FEDERAL CIRCUIT COURT OF AUSTRALIA

FHB17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1223

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority applied an unduly narrow interpretation of “exceptional circumstances” – whether the Authority failed to consider whether there were exceptional circumstances for considering the new information – whether the Authority was bias – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: FHB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3743 of 2017

Judgment of: Judge Street

Hearing date: 15 May 2018

Date of Last Submission: 15 May 2018

Delivered at: Sydney

Delivered on: 15 May 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3743 of 2017

FHB17

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”) under Part 7AA of the Act made on 13 November 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 3 October 2012 as an unauthorised maritime arrival. On 5 January 2016, the applicant applied for a Safe Haven Enterprise visa. The applicant was found to be a Tamil from the North of Sri Lanka.

3. The applicant claimed his father was a Liberation Tigers of Tamil Eelam (“LTTE”) member for several years and died in combat in 2000. The applicant claimed his family was favoured by the LTTE, as his father was an LTTE martyr.

4. The applicant alleged that during the war, he and his mother and sister were detained in an Internally Displaced Person (“IDP”) camp and that he was separated from his mother and sister and interrogated several times, on average, once a week. The applicant claimed he was severely interrogated by the Criminal Investigation Department (“CID”) in July-August 2009 and was detained for three weeks in a dark room inside the CID office located at the camp. The applicant claims he was blindfolded and beaten and that he still suffers from back pain from the beatings.

5. The applicant claimed his family was released from the camp, but required to sign documents and told to report weekly to the CID office in a particular region. The applicant, despite complying with the CIDs reporting requirements, alleges that the CID and police would come on an average of once or twice a week to conduct checks, question the family and leave. The applicant alleges that in 2010 he moved to a school hostel due to increasing violence in his area, and that he ceased reporting to the CID. The applicant alleges between January 2010 and September 2012, he travelled from the hostel to his home on six or seven occasions.

6. The applicant claims to fear harm from the Sri Lankan authorities because he is a young Tamil from a former LTTE-controlled area, because he was detained in an IDP camp, and because he has failed to report to the CID since 2010. The applicant claimed to fear harm because he departed Sri Lanka illegally. The applicant claims he has scars on his body and also relies upon his association with his father, who he claims is an LTTE martyr.

7. At the interview before the delegate, the applicant also raised additional claims, including that he had been the president at the student union at his school in 2007/2008 and organised activities for the LTTE. The applicant alleges he was injured in a shell attack in 2008 and was taken to hospital by the LTTE for treatment and was then captured by the Sri Lankan army. The applicant alleges the army moved him to a rehabilitation camp then detained him for several months. The applicant also provided various documents to the delegate, including post the interview.

8. On 7 April 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. On 12 April 2017, the Authority wrote to the applicant advising that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information. The applicant took advantage of that opportunity and provided information to the Authority on 5 May 2017, which relevantly included a statutory declaration by the applicant, as well as a purported document translated from the information book of the police requiring the handing over of the applicant, which document is dated 14 July 2016.

2. The Authority in its reasons identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority referred to the submissions and material provided by the applicant on 5 May 2017. The Authority noted that the submissions included a Warrant of Arrest and Information Book document dated 14 July 2016, which were before the delegate and, accordingly, were not new information.

3. The Authority noted that included in the documents was a further Information Book dated 15 January 2015, which was not before the delegate and was found to be new information. The Authority identified that the document related to a person other than the applicant, and there is no information to indicate that this person or their experiences are related in any manner or have any relevance to the applicant’s protection claims. The Authority took into account that it was not satisfied that the information could not have been provided to the Minister or that it is credible personal information. It was in those circumstances the Authority was not satisfied there were exceptional circumstances to warrant the Authority considering the document and did not have regard to it.

4. The Authority also referred to a report from a Dr Hughes and was not satisfied that there are exceptional circumstances to justify the Authority considering that report. The Authority referred to a report from a social worker and was satisfied there are exceptional circumstances to warrant considering that document.

5. The Authority referred to a new claim raised by the applicant in his statutory declaration that the applicant was an LTTE fighter. That statutory declaration also identified the applicant’s alleged training and the plate number he was given. The Authority took into account the report from a mental health social worker in considering the applicant’s new claims and, in particular, the allegation of a sexual assault, and the Authority was satisfied that there were exceptional circumstances to justify considering that new claim that the applicant was sexually assaulted whilst the applicant was in detention.

6. The Authority was not, however, satisfied that there are exceptional circumstances to justify considering the new information in relation to a claim involving the applicant’s involvement as an LTTE fighter. The Authority referred to what had occurred at the Safe Haven Enterprise visa and what the applicant had said. The Authority noted that the applicant had informed the delegate that he had not provided this information in his application earlier because he was not sure that this information would be kept confidential and was concerned it may be provided to the Sri Lankan authorities.

7. The Authority noted that the applicant was advised by the delegate of the importance of putting forward his complete and accurate protection claims and cautioned that he may not have another opportunity to do so. The delegate asked the applicant a direct question about any involvement in a combat role and the applicant denied any involvement as a fighter. The delegate expressly referred to the possibility of finding that the applicant did not have a profile to concern the authorities, and that the applicant did not take this opportunity to advance the claim that he had been conscripted by the LTTE. The Authority noted that at the conclusion of the interview, the delegate asked the applicant if he had put forward all his protection claims and the applicant replied that he had mentioned everything. The Authority noted that the applicant did not advance any claim to have been conscripted as a fighter by the LTTE in the last months of the war.

8. The Authority took into account the Mental Health social worker’s report. The Authority noted having difficulty accepting that the applicant was willing to advance information about his LTTE links as a student and, also, disclosed that his father was an LTTE intelligence officer and an LTTE martyr, yet the applicant was not willing to disclose the claim that he as conscripted in the last months of the war. The Authority provided reference to the links that the applicant was prepared to advance, and in those circumstances doubted the veracity of the applicant’s claim. Accordingly, the Authority found the applicant had failed to satisfy the Authority that this was information that could not have been provided to the Minister, or that it was credible personal information. It was in those circumstances the Authority was not satisfied there were exceptional circumstances that warrant the Authority considering the new claim. The Authority also referred to another document that was provided and found that to be irrelevant.

9. The Authority accepted that the applicant’s father was an LTTE member killed in combat, that the applicant was president of the student association, that he organised functions for the LTTE, and that he undertook a one month LTTE training camp while at school, that the applicant was injured in a shell attack in 2009 and taken to hospital where he was photograph by the army, that he had scars from his wounds, that he and his family were taken to an IDP camp in 2009, and that the applicant was sexually assaulted whilst detained, and that the applicant continues to suffer back pain from the physical abuse has sustained while in the camp.

10. The Authority, however, was not satisfied that despite initial interest shown by the authorities of the applicant, that he was of ongoing interest following his release from the camp. The Authority noted by reference to country information that had the authorities had any concerns about the applicant’s activities they would not have released him from the camp. The Authority noted that following the conflict the authorities vigorously pursued persons of interest and the Authority was not satisfied the applicant could have evaded the CID if it had had any interest in him.

11. The Authority was not satisfied that the Information Book and the Arrest Warrant documents had been genuinely issued. The Authority noted the applicant’s experience of interrogation and physical and sexual assault by the authorities in the camp was horrific but found that was indicative of the general abuse meted out on the Tamil population by authorities at the time. The Authority noted that the applicant may have a subjective fear of returning to Sri Lanka, but the country information indicates the conditions for Tamils has improved since the applicant’s departure. The Authority accepted the applicant had ongoing back pain but observed that it did not prevent the applicant from participating in sport at school, and whilst discomforting, the Authority did not accept that it gives rise to persecution concerns.

12. The Authority was not satisfied the applicant would experience persecution or significant harm as a person who had departed Sri Lanka illegally. The Authority expressly referred to having considered the applicant’s claims individually and cumulatively, as a young Tamil male from the North with scars, who does not speak Sinhala, who has familial links to the LTTE, or for reasons of his own activities supporting the LTTE, and who was detained at the end of the war after being detected in an LTTE hospital, and who did not report to authorities after entering the school in Jaffna, and who departed Sri Lanka illegally and claimed asylum, and was not satisfied there is a real chance the applicant would experience harm in the foreseeable future in Sri Lanka.

13. The Authority found the applicant does not meet the definition of “refugee” in s 5H(1) of the Act, and found the applicant did not meet the criteria in s 36(2)(a) of the Act.

14. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.

15. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. On 18 January 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error either had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that in summary, this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that it had also taken into account the grounds raised in the applicant’s application, and in that regard the Court referred to those two grounds. The Court explained that if satisfied of the alleged errors identified in the application, or that the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for a further review. The Court explained that if not satisfied the Authority’s decision was affected by relevant legal error, the application would be dismissed with costs.

3. The Court explained that it would first have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Applicant’s submissions from the bar table

1. From the bar table the applicant complained that he had been an LTTE fighter and that the Authority had not taken this into account. The Authority identified the new claim that was advanced before the Authority in respect of the applicant being an LTTE fighter. The Authority correctly identified the same as being new information. On the face of the material before the Authority, the Authority expressly considered the nature of that information and whether it met both limbs of s 473DD of the Act. On the face of the Authority’s reasons, there is no basis to hold that the Authority adopted an erroneous meaning or misconstrued the meaning of exceptional circumstances.

2. The Court has summarised the Authority’s reasons in relation to rejecting the new claim, which included what occurred before the delegate and the applicant expressly denying that he had been an LTTE fighter when asked by the delegate at the interview. It was in those circumstances that the Authority found that there were not exceptional circumstances to receive the new claim. Those reasons of the Authority cannot be said to be legally unreasonable and were open on the material before the Authority for the reasons given by the Authority, as summarised above. The applicant’s complaint in relation to the Authority not taking into consideration the new information does not identify any relevant legal error by the Authority.

3. Under the statutory regime, under Part 7AA of the Act, the Authority was not to receive new information unless the requirements under s 473CB, 473DC, 473DD and 473DE of the Act were satisfied. Nothing said by the applicant in that regard identified any jurisdictional error by the Authority.

4. The applicant complained that the Authority had not taken into account the letters concerning the CID and the warrant. It is apparent on the face of the Authority’s reasons that the Authority did take into account the information that had been provided before the delegate, as well as the warrant that was before the delegate. The Authority did not accept those documents to be genuine and that was a finding that was open to the Authority that cannot be said to be unreasonable.

5. The more recent Information Book provided by the applicant following the delegate’s decision, and the letter sent to the applicant inviting the applicant to put on new information and submissions, was one which the Authority addressed in its reasons in considering whether there are exceptional circumstances to have regard to the same. The Authority’s reasons reflect a consideration of both limbs of s 473DD of the Act and do not support the proposition that the Authority adopted an erroneously narrow meaning of “exceptional circumstances”. Nothing said by the applicant in relation to the letters, warrant or the Information Book identifies any jurisdictional error.

6. The applicant also complained that the Authority had not taken into account the applicant’s personal circumstances. The Authority’s reasons in paragraphs 16 to 25 reflect the Authority taking into account the applicant’s personal circumstances, and paragraph 25 reflects adverse findings in relation to part of the applicant’s claims with reasons that were logical and rational summarised in dot points by the Authority for the rejection of those claims.

7. The Authority took into account the applicant’s personal claim in relation to his Tamil background and family member being killed in fighting in 2010, and the detection of the applicant in hospital, then being taken to an IDP camp and being detained, questioned and mistreated. The Authority expressly referred to the sexual attack, but found the applicant does not have a well-founded fear of serious harm, applying a forward-looking test, and the Authority was not satisfied the applicant would come to the adverse attention of the authorities on return to Sri Lanka. The Authority expressly referred to the applicant’s past experiences and his subjective fear.

8. The Authority referred to country information and also referred to the applicant’s claims concerning scars on his body, and was not satisfied this would result in a real chance of harm to the applicant. The Authority found the country information did not support a finding that the applicant would face a real chance of harm on return to Sri Lanka by reason of being a young Tamil male from a former LTTE-controlled area, nor because of his past LTTE activities, or for reasons of his family’s links to the LTTE. The Authority found that the applicant has not been and would not be imputed with an LTTE profile.

9. The Authority referred to the incident involving the physical abuse of the applicant and his back pain, and found that there is not a real chance of serious harm to the applicant on the basis of his back condition. The Authority also referred to the applicant not speaking Sinhala and found that the country information did not support there is a real chance that the inability to speak Sinhalese would lead to any mistreatment. The Authority also referred to the circumstances in which the applicant departed Sri Lanka, and the Authority referred to having considered the applicant’s claims individually and cumulatively, and did not accept that the delegate did not take into account the applicant’s personal circumstances in determining the applicant’s claims.

1. On the face of the material before the Court, the Authority made adverse findings dispositive of the applicant’s claims that were open to the Authority for the reasons given by the Authority. There was no failure to consider the applicant’s individual circumstances.

2. The Court notes the applicant said he cannot go back unless there was a guarantee as to his safety. This, in substance, invites the Court to engage in impermissible merits review. The Court does not have power to review the merits.

3. The applicant also drew attention to an error that he had corrected in relation to his number plate in his statutory declaration. That reference does not give rise to any relevant legal error by the Authority, as it was open to the Authority to find that the applicant had not made out exceptional circumstances to justify receipt of the new information in respect of the number plate and the applicant being an LTTE fighter. No jurisdictional error is made out by anything said by the applicant from the bar table.

The grounds

1. The grounds in the application are as follows:

   Ground 1 - The Authority applied an unduly narrow interpretation of the term "exceptional circumstances" [6] and [7], and failed to consider all matters capable of constituting the circumstances of the applicant's case as exceptional; Minister for Immigration and Border Protection v BBS16 [2017].

   Particulars

   1. The Authority erred at [6] when it refused to consider an Information Book document dated January 2015.

   2. More details to be provided once the court book is provided.

   3. The Authority erred at [7] when it refused to consider the doctor's report dated 2 May 2017.

   4. The Authority was not satisfied that there were exceptional circumstances that warrants consideration of the doctor's report [7].

   5. The doctor in his report referred to “Kyphoscoliosis” (which is a deformity of the spine) [7]

   6. The doctor in his report also referred to “Several penetrating wounds to the dorsum of the right foot…” [7].

   7. The Authority disregarded the doctor's report on the basis of the "delegate's finding'' which was that the back pain was not as a result of "severe interrogation by the authorities" [7].

   8. Despite an expert witness (being a medical practitioner) providing his observations particularly that the applicant has a deformity of the spine and that there have been Several penetrating wounds to the applicant's foot, the Authority chose to disregard the expert witness’s opinion and even if it is accepted that Authority did consider the doctor's opinion, the Authority has failed to comprehend the contents of the doctor's report before making a finding under s473DD that there were no exceptional circumstances to consider the medical evidence.

   9. The Authority states “while Dr Hughes confirms the presence of back pain, his report does not provide any insight into the cause of the pain” [7]. This inference made by the Authority indicated the Authority did not read and or comprehend what the doctor’s report contained.

   10. The Authority accepted that the applicant “was repeatedly sexually assaulted as claimed” [23].

   11. The Authority accepted that "the applicant continues to have back pain from the physical abuse sustained while in the IDP camp" [24].

   12. The Authority erred therefore in failing to consider the doctor's report in light of claims that it had accepted to be plausible. The Authority took a "narrow approach" when assessing if "exceptional circumstances did exist to consider the doctor's report".

   Ground 2 - The Authority applied an unduly narrow interpretation of the term "exceptional circumstances" [11] and failed to consider all matters capable of constituting the circumstances of the applicant's case as exceptional.

   1. The Authority accepted that the applicant ''·was repeatedly sexually assaulted as claimed'' [23].

   2. The Authority accepted that "the applicant continues to have back pain from the physical abuse sustained while in the IDP camp" [24]

   3. The Authority accepted

   a. The applicant resided in an LTTE controlled area [17]

   b. The applicant's father was an LTTE member / intelligence officer in the LTTE [17]

   c. The applicant's father was killed in fighting (meaning during combat), hence it is implied that the applicant's father was also a LTTE combatant [17].

   d. The applicant was "president of the student association and involved organising functions at the school on behalf of the LTTE" [19]

   e. The applicant operated as an LTTE informant [19].

   f. The applicant was amongst other LTTE fighters in an injured state at an LTTE hospital, and the army photographed him [20].

   g. The applicant was subjected to severe interrogation and physical abuse, was detained for three weeks held in a dark room, was blindfolded, beaten and kicked [22].

   h. The applicant "did not advance the claims of sexual assault earlier due to his shame and embarrassment" [10].

   i. "that the LTTE conducted widespread conscription of young Tamil men" [13].

   4. Having accepted the above referred to at 3. the Authority refused to consider the new information relating to the applicant's involvement as an LTTE fighter [11].

   5. The Authority failed to take a broad approach when considering if there were exceptional circumstances to justify considering the new information in light of its other findings made by the Authority [11].

   6. The Authority was biased against the applicant when it chose to refuse to consider the new claim [11], regarding the applicant's involvement as an LTTE fighter.

Ground 1

1. In relation to ground 1, the applicant complained that the Authority erred in refusing to consider the Information Book dated 15 January 2015 and in not accepting the doctor’s report dated 2 May 2017. The Authority gave reasons in support of being not satisfied that there are exceptional circumstances to warrant the Authority considering the Information Book dated 15 January 2015. The Authority noted that that relates to a person other than the applicant and that there was no information to indicate that that person or his experiences were relevant.

2. The Authority’s reasons reflect a consideration of both limbs of s 473DD of the Act. On the face of the material before the Court, there is no legal unreasonableness in the Authority rejecting the Information Book dated 15 January 2015, and it was reasonable for the Authority to do so for the reasons given by the Authority. There is no basis to find that the Authority adopted an erroneously narrow meaning of “exceptional circumstances” in that regard.

3. The applicant’s further complaint was in relation to the doctor’s report, which the Authority expressly considered and identified the nature of the information provided in the report, but was not satisfied there were exceptional circumstances that warrant the Authority considering that report. The Authority noted that the report relates to the applicant’s circumstances in Sri Lanka, as told by the applicant, and that this report does not add any substantiation to the information already provided by the applicant.

4. The Authority noted that there had been accepted by the delegate that the applicant had sustained injuries, and his scars were not in dispute. Reference was also made to the acceptance of the applicant having suffered back pain, but that the delegate was not satisfied that this was the result of interrogation. The Authority referred to the applicant’s representative’s advising at the Safe Haven Enterprise visa interview that the applicant had requested X-rays which may provide details as to the cause of his back pain. The Authority noted that whilst Dr Hughes confirms the presence of back pain, the report does not provide any insight in relation to the cause of the back pain. It was in those circumstances that the Authority was not satisfied that there were exceptional circumstances to warrant having regard to the report dated 2 May 2017.

5. The Authority’s reasons in relation to that report do not reveal any erroneously narrow application of the meaning of “exceptional circumstances”, and on a fair reading the Authority had regard to both limbs of s 473DD of the Act. The Authority’s reasons in relation to the rejection of the doctor’s report cannot be said to lack an evident and intelligible justification and accordingly were not legally unreasonable and were open to the Authority for the reasons given by the Authority. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, this alleges error in the finding that there was not exceptional circumstances to receive into evidence the applicant’s contention that he was an LTTE fighter. The Court has summarised above the Authority’s reasons for finding that the two limbs of s 473DD of the Act were not satisfied and that there were not exceptional circumstances to justify having regard to that information. Those reasons by the Authority cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 2.

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

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  5 October 2018