FJW17 v Minister for Immigration

[2018] FCCA 3000

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJW17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3000

Catchwords:

MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka for various reasons – applicant disbelieved in part and other claims fund not to be well-founded – applicant furnishing new information to the Authority which it declined to consider – whether the Authority complied with s.473DD of the Migration Act 1958 (Cth) considered – whether the Authority misunderstood a claim considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5, 473DC, 473DD, 473DE

Cases cited:

AQU17 v Minister for Immigration [2018] FCAFC 111

BRA16 v Minister for Immigration [2018] FCA 127

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16

Applicant: FJW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3823 of 2017

Judgment of: Judge Driver

Hearing date: 23 October 2018

Delivered at: Sydney

Delivered on: 23 October 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 11 December 2017 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,328 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3823 of 2017

FJW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 16 November 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts concerning the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of legal submissions. 

2. The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived as an unlawful maritime arrival and participated in an “enhanced screening interview” on 30 April 2013.[1]   On 26 September 2013 he participated in an entry interview.[2]  On 5 July 2016 the applicant made an application for a Safe Haven Enterprise Visa (SHEV).[3]

   [1] Court Book (CB) 5

   [2] CB 12

   [3] CB 37

3. The applicant’s claims to fear harm were set out in a statement sent by email to the Minister’s Department on his behalf.[4]  The applicant claimed that when he was about 18 or 19 he was abducted by the Tamil Makkal Viduthalai Pulikal (TMVP) because his parents did not attend a TMVP meeting to which they had been invited. He claimed to have been held for a day before escaping, and was tortured. The applicant claimed that the Karuna Group went to his house and destroyed everything and threatened his mother not to complain about the applicant’s treatment to the “Human Rights organization”. The applicant travelled to Jaffna to live for one year as he was scared the Karuna group would kidnap him again and kill him.

   [4] CB 76

4. When the applicant returned to Batticoloa, he kept a low profile. The applicant claimed that in 2011 he had registered with the Elavar Democratic Front (EDF) to contest the election to be held in October 2011. The applicant claimed he joined EDF because he wanted them to lose. He claimed he wanted to learn about the operation and procedure of the party. The applicant claimed that he learned about how votes are bought and sold in Sri Lanka and that the government was involved. The applicant claimed he received information about illegal voting at the election and that he received from the EDF voting papers and identifications. He claimed to have burnt all the documents he received on 7 October 2011. Once the EDF lost the election he claimed his friends from the EDF were looking for him. The applicant claimed that prior to, and after, his departure from Sri Lanka his mother reported to him that suspicious people were roaming outside the family house.

5. On 13 March 2017 the delegate refused to grant the applicant a visa.[5]  On 16 March 2017 the applicant’s matter was referred to the Authority.[6]

   [5] CB 302

   [6] CB 332

6. On 6 April 2017 the applicant’s migration agent sent to the Authority on the applicant’s behalf an email attaching a copy of the applicant’s brother’s interim Medicare card, a statement purportedly signed by a member of the Kalmunai Municipal Council (Council Letter) and a written submission dated 6 March 2017.

Authority’s decision

1. On 16 November 2017 the Authority affirmed the decision under review.[7]

   [7] CB 355

2. The Authority had regard to the submission dated 6 April 2017 received from the applicant’s representative.[8]  In relation to the Council Letter the Authority accepted it post-dated the delegate’s decision and therefore could not have been given to the delegate.[9] The Authority also noted that there was no indication that the applicant was personally known to the author, but rather it appeared as though the author was attesting to the applicant’s activities on the basis of it having been reported to him. The Authority determined that the applicant had not satisfied it that the Council Letter was credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims. The Authority was not satisfied that s.473DD(b) of the Migration Act 1958 (Cth) (Migration Act) was met. Neither was the Authority satisfied that exceptional circumstances existed justifying consideration of the Council Letter in that the applicant was represented by a legally qualified migration agent who provided “detailed” post-interview submissions to the delegate on his behalf. The applicant had had adequate opportunity to provide information in support of his claims.

   [8] CB 356 at [4]

   [9] CB 356 at [5]

3. The Authority found the Medicare card to be new information, and found that it was in existence prior to the delegate’s decision. The Authority noted the applicant’s brother’s status in Australia was raised as a concern by the delegate. The Authority found the applicant had not satisfied it that the new information could not have been provided to the delegate prior to the decision.[10] Whilst the Authority accepted the information met the requirements of credible personal information under s.473DD(b)(ii), it was not satisfied that there were exceptional circumstances justifying consideration of the Medicare card as the applicant had had adequate opportunity to furnish information in support of his claims prior to the delegate’s decision.

   [10] CB 357 at [6]

4. In addressing the applicant’s substantive claims, the Authority accepted the applicant was abducted when he was about 18 years old, but found that the TMVP actions were directed towards the applicant’s family, not him personally.[11] The Authority found the TMVP’s actions were retaliatory action targeting the family’s decision to withhold funds and not attend the TMVP meeting as they had been requested. The Authority noted that during the visa interview the applicant stated that his mother arranged for him to travel to Jaffna where he kept a low profile staying with a friend of his father, who owned a shop.[12]  He did not experience any adverse encounters during this 12 month period. The Authority noted the applicant’s written claims that upon return to Batticaloa he kept a low profile and did not experience further adverse encounters with the Sri Lankan authorities, including the local police, Karuna Group or TMVP members.[13]

   [11] CB 360 at [16]

   [12] CB 350 at [17]

   [13] CB 360 at [18]

5. The Authority then turned to consider the applicant’s claim that he registered with the EDF party to contest an election in October 2011. The Authority expressed concerns, as had the delegate, regarding the credibility of the claims and noted the applicant failed to demonstrate the level of understanding about the party.[14]  The applicant’s claims regarding his political involvements were not forthcoming at the entry interview, but were mentioned for the first time at the visa interview.[15] The applicant explained to the delegate that he did not reveal the information earlier due to concerns that it would be released to authorities in Sri Lanka. The applicant had explained to the delegate a concern he had regarding a letter he received from the Minister’s Department about the leaking of information, but the delegate confirmed with the applicant that his interviews with the Department were prior to the data breach. The Authority noted that the applicant had attended not just an entry interview, but an “enhanced screening interview” before the entry interview and that no mention was made of the EDF claim.[16]  The Authority recorded that at the entry interview the applicant was expressly advised that he was expected to give true and correct answers to questions asked and that failing to do so could raise doubts about the reliability of his evidence.[17]

   [14] CB 360 at [19]

   [15] CB 360 at [20]

   [16] CB 360-361 at [21]

   [17] CB 361 at [22]

6. The Authority did not accept the applicant’s explanation that he withheld information at the entry interview because he was afraid the information would be relayed to the Sri Lankan authorities.[18]  The Authority found the applicant’s claim to have been engaged in political activity with the EDF to have been a recent invention and included in his application to bolster his claims for protection.[19]  The Authority rejected the claim, and rejected that the applicant was targeted by EDF party members, or that the applicant would be imputed with anti-government opinion on the basis of his involvement with the EDF in the lead up to the local council elections in 2011 or due to holding any political links or having engaged in political activity. The Authority did not accept the applicant’s claims regarding people roaming near the family’s house on the basis of a lack of detail.[20]

   [18] CB 361 at [23]

   [19] CB 361 at [25]

   [20] CB 362 at [26]

7. The Authority accepted the applicant held concerns about being targeted in Sri Lanka in light of his history of abduction, but it referred to country information indicating that the Karuna Group is no longer able to carry out its activities as it once did as an active paramilitary force. The Authority was not satisfied that the applicant held a profile of adverse interest with the authorities including the police and paramilitary groups such as the TMVP and the Karuna Group.[21]

   [21] CB 362 at [27]

8. The Authority did not accept that the applicant faced harm due to a perception that his family was wealthy,[22] or because he would be a returned asylum seeker who had departed Sri Lanka illegally.[23] The Authority took into account submissions made on behalf of the applicant that referred to the applicant’s mental health difficulties and access to trauma counselling, but the Authority found there was no country information before it indicating that the applicant would be denied or would be unable to access medical treatment or services in Sri Lanka for any of the reasons in s.5(1)(a) of the Migration Act, or otherwise.[24]

   [22] CB 362 at [28]

   [23] CB 363-364 at [29]-[39]

   [24] CB 364 at [40]

The present proceedings

1. These proceedings began with a show cause application filed on 11 December 2017.  There are two grounds with particulars in the application:

   The IAA misunderstood in respect of what I said about my hiding in Jaffna, Sri Lanka.

   The IAA has not complied with s.473DD of the Migration Act 1958

   Particulars:

   I told Immigration that I was in hiding in Jaffna, Sri Lanka.

   Paragraph 27 of the IAA’s decision dated 16 November 2017 contradicts what I stated to the DIBP as the IAA did not mention about my hiding in Jaffna, Sri Lanka.

   The letter given to the IAA was rejected as it was given after the DIBP’s refusal.  The IAA should have admitted the letter as the letter confirms including that I was an EDP candidate and I burnt the votes.  It is personal credible information and I complied with s.473DD(a)(b)(ii).

   I need [to] obtain transcript of the Immigration interview CD in order to provide further particulars of my ground and other grounds and particulars.

2. The application is supported by a short affidavit filed with it which I received. 

3. I also have before me as evidence the book of relevant documents filed on 31 January 2018. 

4. Only the Minister filed written submissions in advance of today’s hearing. 

5. I invited oral submissions from the applicant this morning.  Those submissions were clear and articulately presented.  The applicant submits that the problems with the Authority’s decision began with the decision of the delegate.  He submits, in effect, that the delegate’s decision that his brother never came to Australia is inexplicable.  He maintains that his brother came to Australia by boat, claimed protection here, was rejected and was returned to Sri Lanka.  The applicant has not heard from his brother since his return to Sri Lanka and is concerned about his welfare.  He fears that his brother has been harmed and that the same fate awaits him.

6. It was to deal with that rejection of the applicant’s claims by the delegate that the applicant presented what purports to be his brother’s Medicare card to the Authority.  The Authority declined to receive it, noting that it was new information that could have been provided to the delegate.  The Authority accepted that the Medicare card is personal information that may have affected consideration of the applicant’s claims.  However, the Authority was not satisfied that there were exceptional circumstances given that the applicant was professionally represented before the Minister’s Department and knew that the brother’s status in Australia was an issue during the visa interview process.

7. The applicant asserted before me that he has further new information concerning his brother.  That information is apparently an image on his smart phone of the boat on which his brother travelled to Australia and a number allocated to him.  The applicant could submit that information to the Minister’s Department should he so wish. 

8. The applicant also submitted that the delegate and the Authority were wrong in making adverse credibility findings concerning his claims of political activity. The applicant, through his representative, sought to deal with the adverse decision of the delegate by submitting new information in the form of the letter reproduced at CB 342.  The Authority did not accept that the letter contained credible personal information and took the view that the applicant had, in addition, had adequate time to provide the information in the letter to the delegate.  I see no error in the Authority’s approach to that information.  There is no indication that in relation to either of these pieces of information any relevant consideration was overlooked.

9. The applicant told me in the course of his oral submissions that he has a further corroborative letter which he has received since the Authority decision.  Again, it is open to him to submit that information to the Minister’s Department if he wishes.  I otherwise agree with the Minister’s submissions concerning the grounds of review advanced by the applicant.   

First ground

1. In the first ground the applicant asserts that the Authority misunderstood what he had said about hiding in Jaffna. In the particulars to the ground the applicant suggests that the Authority’s findings at [27] “contradicts what I stated to the DIBP” and that the Authority “did not mention about my hiding in Jaffna”.

2. There is no evidence before the Court that the applicant told the Minister’s Department at any stage that he went “into hiding” in Jaffna. The applicant told the enhanced screening interviewer that he went to Jaffna for a year after he left hospital.[25]  In his written claims for protection the applicant stated that he travelled to Jaffna as he was scared that the Karuna group would kidnap him and kill him, and that he stayed for a year.[26]  The delegate in its decision recorded this claim as having been made.[27]  The delegate accepted the applicant had moved to Jaffna for one year after he was abducted by the Karuna Group/TMVP.[28]  No mention is made that the applicant told the delegate he was “in hiding” in Jaffna.  The delegate recorded the applicant’s claim that he went into hiding after the 2011 election, until he departed Sri Lanka.[29]  However, this was two years after he returned from Jaffna.

   [25] CB 8-9

   [26] CB 77 at [10]

   [27] CB 304.5

   [28] CB 306.5

   [29] CB 308.3

3. The Authority noted that the applicant had told the delegate that whilst in Jaffna he had kept a “low profile”.[30]  To the extent this is what the applicant is referring to when he told the delegate he was “in hiding”, the Authority expressly referred to the applicant’s statement. It was open to the Authority to refer to the applicant’s residence in Jaffna and his capacity to live and work there without encountering adverse treatment, as being a part of its conclusion that the applicant did not hold a profile that would place him at risk with the authorities. At [27] the Authority referred to country information relating to the improved security situation in Sri Lanka. The Authority in its reasons did not accept that the applicant had been abducted due to a personal adverse profile, and it did not accept his claims to have been involved politically with the EDF from 2011.

   [30] CB 360 at [17]

4. The ground does not identify error by the Authority.

Second ground

1. In the second ground the applicant asserts that the Authority failed to comply with s.473DD of the Migration Act. The gist of the ground appears to be that the Authority erred in not accepting the Council Letter, which the applicant says “confirms … that I was an EDP candidate and I burnt the votes”.

2. The Authority addressed the letter and whether it could consider the letter under s.473DD.[31] The Authority found the information in the Council Letter could have been provided to the delegate, and that it had not been satisfied that the information was credible personal information under s.473DD(b)(ii). This was despite the Authority accepting that the letter itself post-dated the delegate’s decision and therefore could not have been given to the delegate. However, “new information” under Part 7AA is not a reference to a document, but to communication of knowledge about some particular fact, subject or event. As the High Court (Gageler, Keane and Nettle JJ) characterised it in Plaintiff M174/2016 v Minister for Immigration:[32]

   The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s.473DC(1)(a) and (b).

   [31] CB 356 at [5]

   [32] [2018] HCA 16 at [24]

3. To the extent the applicant contends the Authority fell into error simply because the Council Letter sought to corroborate claims he had advanced before the delegate, this does not demonstrate error. Properly understood, the ‘new information’ in the context of the Council Letter was information that purported to support or corroborate the applicant’s claims. That an applicant, after a decision of a delegate rejecting claims, seeks to improve his or her position by obtaining and advancing letters of support that corroborate the rejected claims does not oblige the Authority to accept the material. It was open to the applicant, the Authority found in effect, to have produced to the delegate material supporting his claims.

1. The Authority considered the Council Letter by reference to both limbs of s.473DD. Whilst the limbs are conjunctive,[33] the Authority made no error in taking into account factors relating to the requirements of s.473DD(b) in determining that no exceptional circumstances existed.[34]

   [33] BRA16 v Minister for Immigration [2018] FCA 127 at [26]

   [34] AQU17 v Minister for Immigration [2018] FCAFC 111 at [14]

2. The ground does not identify any error by the Authority.

3. I conclude that the applicant is unable to advance a case of jurisdictional error by the authority.  The authority decision is therefore a privative clause decision, and the application must be dismissed.  I will so order.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant sought information concerning arrangements for payment of the costs but did not oppose a costs order.

5. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,328 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  26 October 2018