FIP17 v Minister for Immigration

[2018] FCCA 1239

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1239

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a protection visa – whether the Tribunal failed to carry out its statutory task of review under s.473DC – whether the Authority fell into jurisdictional error by adopting an unduly narrow construction of s.473DD – no jurisdictional error identified – amended application dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DC, 473DD

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: FIP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3764 of 2017

Judgment of: Judge Street

Hearing date: 16 May 2018

Date of Last Submission: 16 May 2018

Delivered at: Sydney

Delivered on: 16 May 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents: DLA Piper

ORDERS

1. The amended application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3764 of 2017

FIP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is a show cause hearing under r 44.12 of the Federal Circuit Court Rules2001 (“the Rules”) in respect of proceedings seeking a Constitutional writ in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 1 November 2017 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil from the Northern Province and arrived in Australia on 13 October 2012 and applied for a Safe Haven Enterprise visa on 18 August 2016. On 6 February 2017, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. 

The Authority

1. On 9 February 2017, the Authority wrote to the applicant informing the applicant that the application for a protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and the letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant’s representatives took advantage of that opportunity and information and submissions were provided to the Authority on 9 March 2017 which was identified in the Authority’s reasons. The Authority, in its reasons dated 1 November 2017, identified the background to the application for review. The reasons referred to the submissions and the Authority found, so far as the submissions engaged with the decision of the delegate, and the material before the delegate, they do not constitute new information and had regard to the same. 

2. The Authority identified there was a new claim as to the extent of the applicant’s involvement with the Liberation Tigers of Tamil of Eelam (“LTTE”), a new claim in relation to this participation and witness testimony given in 2014 to an International Crimes Evidence Project (“ICEP”) and a copy of an ICEP witness acknowledgment document, further details about the applicant’s relationship with his cousin who was a major in the LTTE, and country information from a range of sources. The Authority referred to the country information and the nature of the same and was satisfied that there were exceptional circumstances to justify considering that new information. 

3. The Authority referred to the new claim in relation to the applicant’s involvement with the LTTE. The Authority summarised the nature of the applicant’s claims in that regard and referred to the submission advanced that it was credible personal information that was not previously known, and if it had been known, may have affected consideration of the applicant’s claims because it provides further reasons of why the applicant would be of ongoing interest to the authorities. Reference was also made to the substance of what the new information was alleged to demonstrate. 

4. The Authority referred to the process that had been undertaken at the interview and that at that interview the delegate discussed, among other things with the applicant, his connection to the LTTE through his hardware shop. The Authority noted the delegate informed the applicant at the end of the interview that if he provided further information prior to the decision being made, it would be considered and the applicant’s representatives subsequently provided further information, including some new claims, as well as detailed submissions. The Authority noted the applicant was represented during the Safe Haven Enterprise visa application and throughout the interview. The Authority found the applicant had not explained why his fear of disclosing his involvement with the LTTE intelligence has now changed. The Authority found although the new information is personal information, the applicant has not satisfied the Authority that it is credible.  The Authority explained that it is not credible that the applicant would not have previously mentioned the letter drops that started some 15 years ago, if they were true. The Authority found it was not credible that the LTTE would need to use a letter-drop facility in a hardware shop when the area was at all times under the LTTE’s control.

5. The Authority did not consider it coincidental that the capture of X and wife’s exposure of the applicant is claimed to have occurred after the delegate’s decision. Further, the Authority did not consider it credible that after X’s capture, X’s wife would publically speak about the applicant’s activities, given it would further implicate X due to his connection with the applicant through the hardware shop. The Authority found the applicant’s claims about recent events surrounding X’s capture and X’s wife’s actions could not have been provided to the delegate before the decision was made and has not satisfied the Authority that the new information is credible and the Authority was not satisfied that there were exceptional circumstances to justify considering that information.

6. The Authority referred to the second new claim of giving evidence to the ICEP. In relation to the giving of evidence on the torture the applicant was subjected to and the killings he witnessed, the Authority found the information predated the decision by more than two years and noted that at the Safe Haven Enterprise interview, the applicant and the delegate discussed, among other things, his anti-government activities in Australia and that the delegate informed the applicant at the end of the interview that if he provided further information prior to a decision being made, it would be considered and that the applicant’s representative subsequently provided both further information and new claims about his anti-government activities. The Authority referred to the applicant being represented and found the ICEP document was generic, albeit providing some corroboration of the applicant’s claimed involvement. The Authority however, did not consider it credible that the applicant would not have previously mentioned his involvement with the ICEP, particularly as he was prepared to raise other examples of anti-government activities during the protection visa process.

7. The Authority also referred to the applicant’s evidence that he was advised that his testimony evidence would remain confidential, and in those circumstances, the applicant’s claimed fear in relation to it being revealed to the Sri Lankan authorities is not credible. The Authority also took into account that the applicant’s involvement with the ICEP now was not consistent with his claimed fear. The Authority was not satisfied that the new information could not have been provided to the delegate, and was not satisfied that it was credible personal information. The Authority was not satisfied there were exceptional circumstances to justify considering that new information. 

8. The Authority then referred to the new information about the relationship to his cousin who was a major with the LTTE. The Authority noted no explanation was provided as to why that new information was not or could not have been provided to the delegate and why it should be regarded as credible personal information, that was not known and, had it been known, may have affected consideration of the applicant’s claims.  The Authority noted the information predated the delegate’s decision.  The Authority noted that at the Safe Haven Enterprise visa interview, the delegate explained to the applicant that if the applicant did not give the Department all relevant information about his application and his application was refused, he may not have another chance to provide further information. The Authority also noted that the applicant made reference to his cousin who fought and died for the LTTE in his Safe Haven Enterprise visa application. The Authority noted that at the Safe Haven Enterprise visa interview, the applicant and the delegate discussed, among other things, his cousin who fought and died for the LTTE and the delegate informed the applicant at the end of the interview, that if he provided further information prior to a decision being made, it would be considered, and the applicant’s representative did provide both further information and detailed submissions. The Authority noted the applicant was represented during the Safe Haven Enterprise visa application and throughout the interview.

9. The Authority found the applicant had not satisfied the Authority that the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal that was not known and had it been known may have affected the consideration of the applicant’s claims. It was in those circumstances, the Authority was satisfied there were exceptional circumstances to justify considering the new information.

10. The Authority summarised the applicant’s claims and his fears of harm from the Sri Lankan authorities, such as the Criminal Investigation Department (“CID”), the Terrorist Investigation Department (“TID”) and the Sri Lankan Army (“SLA”), and that he fears persecution on the basis of his profile, his Tamil ethnicity and origin and by reason of being a failed asylum seeker returning from the west. 

11. The Authority in its reasons referred to the applicant’s claims and evidence in relation to Sri Lanka, as well as the applicant’s departure for Malaysia via Colombo on 28 October 2010. The Authority referred to the applicant working in a supermarket until July 2012 and when his passport was about to expire he arranged to travel by boat to Indonesia and subsequently boarded a boat bound for Australia.

12. The Authority noted that the applicant claimed that after he left Sri Lanka in 2010, the authorities made inquiries about him.  The Authority was prepared to accept that between October 2010 and July 2012, the SLA came and enquired about his whereabouts with friends in Udayanagar village (“UV”). The Authority rejected the applicant’s claim that the CID visited his family in June 2014 to ask where he was and to take a photo of him, and found that to be a fabrication designed by the applicant to boost his protection claims. 

13. The Authority was not satisfied that if the applicant returns to Sri Lanka that he will be at risk of harm if he asks for his land to be returned or that the ongoing impact from the occupation of his land will be to such an extent that it threatens the applicant’s capacity to subsist or otherwise constitute serious harm. The Authority referred to the United Nations High Commissioner for Refugees (“UNHCR”) eligibility guidelines for Sri Lanka. The Authority accepted that the applicant and his family members lived in areas that were during the war, at times controlled by the LTTE. The Authority found, having regard to the UNHCR guidelines and the other information before the Authority, the Authority was not satisfied the applicant was at risk of harm for reason of any real or perceived links to the LTTE or any imputed legal opinion, now or in the reasonably foreseeable future.

14. The Authority provided detailed reasons in support of that finding and found that the applicant, being a Tamil from a former LTTE controlled area, does not give rise to a need for protection and, as residents of LTTE controlled areas had to interact with the LTTE on a daily basis. The Authority found that a shopkeeper in the LTTE controlled area selling most of the goods to the LTTE officials and organisations as the applicant did, is within such day to day interactions.

15. Secondly, the Authority took into account that the applicant did not claim that in any of his interactions with the Sri Lankan authorities, that he was questioned about his relatives or friends who had died or went missing during the war, including his cousin who was a major in the LTTE. 

16. Thirdly, the Authority noted although the applicant was questioned and mistreated from March 2009 until he left in October 2010, he revealed to the authorities his sale and supply of hardware to the LTTE and that the country information does not suggest that the Sri Lankan authorities were unaware of the LTTE’s one member per family recruitment rule. The Authority found that the applicant was never formally arrested, charged or sent to jail or for rehabilitation by the authorities. The Authority also took into account country information in that regard.

17. The Authority found the applicant did not have a profile that suggests he is at risk of harm now or in the reasonably foreseeable future, for any real or perceived LTTE links, for any imputed political views or as a Tamil male from the Northern Province. The Authority was satisfied the applicant would not face a real chance of persecution due to any links to the LTTE for an imputed political opinion as a Tamil male from the Northern Province if returned to Sri Lanka, now or in the reasonably foreseeable future. 

18. The Authority referred to the applicant having engaged in Facebook postings and was not satisfied that this activity was anything more than or will be perceived by the Sri Lankan authorities as anything but low level, sporadic involvement in pro-Tamil separatist and/or pro-LTTE diaspora activities, nor that these activities have raised his profile with the Sri Lankan authorities. The Authority was satisfied that if the applicant returned to Sri Lanka, he would be involved in such activities at the same low level in a sporadic way. The Authority was not satisfied the applicant will be at risk of harm from the Sri Lankan authorities, if he returned to Sri Lanka and continues his low level of sporadic activity in pro-Tamil separatist and/or pro-LTTE activities. 

19. The Authority was satisfied the applicant will not face a real chance of harm from the Sri Lankan authorities due to his activities while he has been outside Sri Lanka, including his activities in Australia, and/or if he continues such activities, if returned to Si Lanka now or in the reasonably foreseeable future. The Authority was not satisfied the applicant faced a real chance of persecution on the basis of being a failed Tamil asylum seeker on his return from a Western country now or in the reasonably foreseeable future. 

20. The Authority accepted the applicant may face some economic impact from the SLA’S continued occupation of his land. Having considered the applicant’s circumstances and profile as a whole, in light of the country conditions, the Authority was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future. The Authority found the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act. The Authority found the applicant did not meet the definition of “refugee” under s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act. 

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

   1. The IAA fell into jurisdictional error in failing to carry out its statutory task of review in a legally reasonable way it would have had to consider acting under s473DC (see: Minister for Immigration v CRY16 [2017] FCAFC 210).

   Particulars

   (a) On 21 March 2017 the applicant's representative submitted a submission and further information consisting of:

   i. A new claim in relation to the extent of the applicant's involvement with the LTTE;

   ii. A new claim in relation to his participation and witness testimony given in 2014 to the International Crimes Evidence Project (ICEP) and a copy of a ICEP witness acknowledgement documents; and

   iii. Further details about his relationship with his cousin who was a Major in the LTTE.

   (b) At [7] the IAA held that the applicant has not explained how or why his fear of disclosing his involvement with the L TTE has now changed and this claim pre-dates the delegate's decision by 15 years. Additionally, although the new information is personal information, the applicant had not satisfied the IAA that it was credible.

   (c) At [7] the IAA held that it did not consider it coincidental that the capture of Romeo and his wife's exposure of the applicant is claimed to have occurred after the delegate's decision and was not satisfied that the new information was credible.

   (d) At [9] the IAA held that the new claims that he gave evidence to the ICCEP on torture he was subjected to and killing he witnessed in Sri Lanka pre-dated the delegate's decision by more than 2 years and the IAAA was not satisfied that it was credible personal information.

   e) At [11] the IAA held that further details about the applicant's relationship with his cousin pre-dated the delegate's decision and was not credible personal information.

   (f) The IAA fell into jurisdictional error in acting in a legally unreasonable way in failing to consider exercising its discretion under s473DC (3) and invite the applicant in writing to comment on these reasons to find that the new claims and further information could have been provided to the delegate before making the decision and that the new claims and information were not credible personal information.

   2. The IAA fell into jurisdictional error by adopting an unduly narrow construction of s 473DD by confining its determination of the new information to whether or not the application provided an explanation in accordance with the Practice direction 1. At [7]-[11] the IAA reasoned that a failure to provide an explanation was determinative of the matters set out in s473DD. In doing so, it constructively failed to exercise its jurisdiction under s473DD.

   Particulars

   (a) On 21 March 2017 the applicant's representative submitted a submission and further information consisting of:

   i.  A new claim in relation to the extent of the applicant's involvement with the LTTE;

   ii. A new claim in relation to his participation and witness testimony given in 2014 to the International Crimes Evidence Project (ICEP) and a copy of a ICEP witness acknowledgement documents; and

   iii. Further details about his relationship with his cousin who was a Major in the LTTE.

   (b) At [7] the IAA held that the applicant has not explained how or why his fear of disclosing his involvement with the LTTE has now changed and this claim pre-dates the delegate's decision by 15 years. Additionally, although the new information is personal information, the applicant had not satisfied the IAA that it was credible.

   (c) At [9] the IAA held that the new claims that he gave evidence to the ICCEP on torture he was subjected to and killing he witnessed in Sri Lanka pre-dated the delegate's decision by more than 2 years and the IAA was not satisfied that it was credible personal information.

   (d) At [11] the IAA held that further details about the applicant's relationship with his cousin pre-dated the delegate's decision and was not credible personal information.

1. At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing under r 44.12 of the Rules to determine whether the applicant has a reasonably arguable case that the Authority’s decision was affected by relevant legal error. The Court explained, in that regard, it was taking into account the two grounds identified in the applicant’s application and whether the applicant had a reasonable argument that the Authority’s decision was unlawful or unfair. 

2. The Court explained that it would 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.

3. From the bar table, the applicant maintained that he could not go back to Sri Lanka. That submission by the applicant was an invitation to this Court to engage in impermissible merits review. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1

1. In relation to ground 1, the Authority’s reasons in respect of the proposed new information which included, the new claim about the applicant’s involvement with the LTTE, the applicant’s participation in the ICEP and the applicant’s relationship with his cousin who was a major in the LTTE as identified in paragraphs 7, 9 and 11, were logical and rational reasons that were open to the Authority in considering whether or not there were exceptional circumstances to justify considering the new information. There was no request to the Authority advanced for the Authority to exercise power under s 473DC(3) of the Act. The circumstances of the present case are not ones which give rise to arguable grounds upon which the Authority could be said to be acting unreasonably by not exercising the power under s 473DC(3) of the Act. No arguable case of jurisdictional error is made out by ground 1 of the amended application.

Ground 2

1. In relation to ground 2, on the face of the material before the Court and the reasons given by the Authority in paragraphs 7, 9 and 11, it is clear that the Authority took into account both limbs of s 473DD of the Act and the significance of the new information and did not adopt an erroneously narrow meaning of exceptional circumstances. The Authority in those paragraphs gave extensive consideration to the arguments advanced by the applicant as to the nature of the new information, whether it was credible personal information and whether there were exceptional circumstances to justify considering the new information. No arguable case of jurisdictional error is disclosed by ground 2 of the amended application.

Conclusion

1. As the amended application fails to disclose any reasonably arguable case of jurisdictional error, the Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. Accordingly, the amended application is dismissed under r 44.12 of the Rules. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 July 2018