FKQ17 v Minister for Immigration

[2018] FCCA 1281

FEDERAL CIRCUIT COURT OF AUSTRALIA

FKQ17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1281

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether the Authority failed to consider a claim advanced by the applicants – whether the Authority failed to consider the applicants written submissions – whether the Authority’s reasons for not considering the applicants submissions was affected with legal error – jurisdictional error made out – amended application allowed.

Legislation:
Migration Act 1958 (Cth), s.476

First Applicant: FKQ17

Second Applicant:  AGP18

Third Applicant:  AGQ18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3843 of 2017

Judgment of: Judge Street

Hearing date: 21 May 2018

Date of Last Submission: 21 May 2018

Delivered at: Sydney

Delivered on: 21 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Hodges Legal

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: MinterEllison

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 4 May 2018.

2. A writ in the nature of certiorari is issued calling up on the record of the Immigration Assessment Authority and quashing the decision made on 30 November 2017.

3. A writ in the nature of mandamus is issued requiring the Immigration Assessment Authority to conduct the review of the application for a Safe Haven Enterprise visa according the law.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3843 of 2017

FKQ17

First Applicant

AGP18

Second Applicant

AGQ18

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

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 30 November 2017 affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.

2. The applicants were found to be Tamil Hindus from Sri Lanka and their claims were assessed against that country. The primary and secondary applicants resided mainly in Colombo and Jaffna in the Northern Province and departed Sri Lanka legally on 10 April 2013 and travelled to Malaysia. They arrived in Christmas Island on 1 May 2013 and the third applicant was born in Australia on 9 February 2014. On 3 November 2016, the applicants lodged a combined application for Safe Haven Enterprise visas. On 8 May 2017, the delegate refused to grant the protection visas.

The Authority

1. On 10 May 2017, the Authority wrote to the applicants explaining that the application for Safe Haven Enterprise visas 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 provided an attached fact sheet and practice direction giving the applicants an opportunity to put on new information and submissions.

2. In the present case, a number of tranches of information were provided on behalf of the applicants to the Authority and they were dealt with in detail in the Authority’s reasons from paragraph 6 to paragraph 15. The documents were described as being in four tranches. It is the subject matter of the second tranche that gives rise to the alleged errors advanced by the applicant in the present case. In relation to tranche two, the Authority found as follows:

   12. Tranche two (provided on 13 June 2017) is an affidavit of the same Sworn Translator referred to above, attaching a transcript of portions of the interview and purporting to identify certain inconsistencies and differences between what was said and what was interpreted. It also contains a further copy of the Oath or Affirmation referred to above. I have considered the translation and note that with one exception, the differences that are identified do not appear to be substantially different to the information that was before the delegate in the form of the primary applicant's translated answers. In that sense, the major portion of this translation is information that was previously provided to the delegate and as noted above, it is not new information.

   13. There is one potentially substantive difference where it is alleged that the primary applicant referred to a person named T as being his father's cousin, but this was translated as being his father's brother-in-law. The primary applicant has not made any claim or submission in relation to this difference. The delegate did note that the primary applicant has provided conflicting descriptions of the actual relationship with T; however, the delegate also noted significant other concerns beyond the description of the relationship. Ultimately, the delegate was not satisfied that the primary applicant had the interactions with T that he claimed and the actual nature of the relationship was not determinative of this finding. The primary applicant has not satisfied me that this purported mistranslation may have affected consideration of his claims. I also note that the interpreter used at the interview is a NAATI accredited interpreter and that at the start of the interview, the primary applicant confirmed that he understood the interpreter. The primary applicant did not indicate at any time during the interview, including after the break for discussion with his agent, that he had any concerns or difficulties with the translating. Having regard to all of these factors, I am not satisfied that there are exceptional circumstances to justify considering this new information.

Before this Court

1. The grounds in the amended application is as follows:

   Ground 1

   The IAA committed jurisdictional error by failing to consider, or make a find on, a claim advanced by the applicant.

   Particulars

   a. At [17], the first applicant claimed that his father had been supporting the LTTE by driving buses and transporting members and wounded people.

   b. The IAA did not consider whether the applicant faced harm based on familial connection to anyone who fits within the risk profiles outlined in the 2012 UNCHR Guidelines.

   c. The relevant ones in the applicant’s case are:

   i. (4) Former LTTE supports who may never have undergone military training, by were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE.

   ii. (6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

   d. In this instance, the IAA should have at least considered the individual circumstances of the applicant having regard to the UNCHR risk profiles.

   Ground 2

   The Authority failed to consider written submissions dated 7 June 2017 (sent via email on 10 June 2017) thereby committing jurisdictional error.

   Particulars.

   1. The Authority states at [CB 327.6] that the “applicants have provided four tranches of documents to the IAA”.

   2. The Authority refers to Tranche 1 having been provided on 5 June 2017 [CB 327,7].

   3. The Authority refers to Tranche 2 having been provided on 13 June 2017 [CB 328,12].

   4. The Authority refers to Tranche 3 having been provided on 14 June 2017 [CB 328,14].

   5. The Authority refers to Tranche 4 having been provided on 15 June 2017 [CB 328,14].

   6. The Authority does not refer to having received the submissions dated 7 June 2017 [CB 304] sent to the Authority via email on 10 June 2017 [CB 303] and [CB 317] in any of the Tranches it had received.

   7. At [CB 328,13] the Authority states “The primary applicant has not made any claim or submission in relation to this difference”.

   8. It is clear that the Authority had received the submissions dated 7 June 2017, but did not consider these submissions.

   9. The IAA’s Practice Direction states at [CB 255,20] “For the purposes of the review, you may provide written submission…”.

   10. There was an obligation to consider the written submission dated 7 June 2017, a failure to do so amounts to a jurisdictional error.

   Ground 3

   The Authority’s reasons for not considering “Tranche two” is affected with legal error.

   Particulars

   1. The Authority considered the affidavit and transcript which it referred to as “Tranche two” [CB 328,13].

   2. The Authority identified “one potentially substantive difference” that arose in the transcript concerning the applicant’s relationship with “T” [CB 328,13].

   11. The Authority states at [CB 328,13] “The primary applicant has not made any claim or submissions in relation to this difference”.

   3. The Authority states at [CB 328,13] “The primary applicant has not satisfied me that this purported mistranslation may have affected consideration of his claims.

   4. The Authority states at [CB 328.13] “Having regard to all of these factors, I am not satisfied that there are exceptional circumstances to justify considering this new information”.

   5. The applicant through his representative did make submissions [CB 304] regarding the “mistranslation” in the transcript which the Authority identified as a potential substantive difference.

   6. The submissions were provided to the Authority, the Authority made a finding under s473DD that the new information could not be considered because there are no exceptional circumstances to justify considering this new information [CB 328,13] without considering the submissions [CB 304].

2. Mr Tambimuttu, solicitor on behalf of the applicants, accepted that the reference to 13 June 2017 may be treated as an error and intended to refer to 10 June 2017. It was submitted that when close attention is given to the substance of the submissions dated 7 June 2017, the inference should be drawn that the Authority failed to give real and meaningful consideration to those submissions and that they have not been taken into account. In particular, Mr Tambimuttu focused upon the submission advanced in relation to an interpretation error identified in a transcript to which the Authority does refer and the description of a particular person, T, in respect of which it is alleged that the error was one in which T was the applicant’s father’s brother-in-law, not the applicant’s father’s cousin. It is clear from the Authority’s reasons that the Authority did have regard to the transcript and referred to the error that was advanced.

3. However, the submissions as a whole address topics beyond the typographical error and put submissions in relation to the applicant’s profile by reference to the United Nations High Commissioner for Refugees guidelines in the Department of Foreign Affairs and Trade information report dated 24 January 2017 that the applicant is closely related to an individual who held a senior position in the Liberation Tigers of Tamil Eelam (“LTTE”). That itself was a submission and not new information to which the Authority should have had regard. The Authority’s reasons reflect treating the whole of the submission as if it was new information. The transcript was new information, as was the affidavit. Part of the document dated 7 June 2017, however, engaged with the delegate’s findings. That is not the only reference to engaging with the delegate’s findings. There is also a submission advanced in relation to the delegate’s findings in respect of a claim by the applicant as the owner of a salon that he had been detained and questioned in relation to the alleged harbouring of five LTTE members at his business operating in Colombo

4. The delegate referred to concern in respect of the applicant’s credibility on the claim that the applicant was not only found harbouring LTTE members which were arrested and imprisoned, but that in 2007 had the remainder of his staff imprisoned due to an explosion at his salon which was targeting Sri Lankan Navy officers. The delegate found that it was unlikely that the applicant avoided prolonged imprisonment on the basis of these two events. The delegate did not accept the applicant would be detained and released without charge on account of harbouring LTTE cadres and owning a shop where Sri Lankan Navy officers were targeted in a bombing. That topic was addressed in the submissions provided under cover of the email dated 10 June 2017 and was not new information and was a submission to which the Authority should have had regard.

5. A submission was also advanced in relation to the delegate’s reference to the applicant’s mother having come to Australia. It is apparent that the Authority took into account the same topic in the Authority’s reasons in relation to the applicant’s mother’s visiting twice since the primary applicant departed Sri Lanka. That again was a topic in respect of which the applicant was entitled to put submissions and have the same considered by the Authority and which were not in that regard new information.

6. There was a further submission in relation to whether or not the whole of the circumstances or totality of the applicant’s claims were considered by the delegate and that again was a submission to which the applicant was entitled to expect the Authority to have regard and not to exclude the same as if it was new information. Taking into account the way in which the Authority has treated the second tranche and found the whole to be new information, to which the Authority was not satisfied there were exceptional circumstances to justify considering this new information, I accept Mr Tambimuttu’s submission that the correct inference to draw, notwithstanding a typographical error to 10 June 2017, is that the Authority did not have a real and meaningful engagement with the submissions that were advanced and that there was a failure by the Authority to take into account the submissions that were advanced under the email cover dated 10 June 2017.

7. The Authority’s absence of express reference to the submissions further supports that inference, notwithstanding the engagement by the Authority with what appears at page 310 of the Court Book in the interview where the interpreter has referred to “my father’s cousin (Machchan in Tamil)” as “my father’s brother in law”. The Authority’s findings in paragraph 13 of its reasons, that the “primary applicant has not made any claim or submission in relation to this difference”, is difficult to reconcile with the argument advanced that the error had been made and impacted on the applicant’s profile as considered and addressed in the submissions in paragraph 1. I accept Mr Tambimuttu’s submission that the correct inference to draw from the reference in the Authority’s reasons to the fact that the “primary applicant has not made any claim or submission in relation to this difference”, even on a fair reading, cannot be reconciled with the submission advanced at page 304 to 305 of the Court Book. The correct inference to draw in all these circumstances is that the Authority has not taken into account the substance of the submissions identified on 10 June 2017.

8. There has been no real and meaningful engagement by the Authority in respect of the submissions made 10 June 2017. In circumstances where the Authority, under Part 7AA of the Act invited the applicant to put on submissions and new information, the Authority failed to give these submissions real and meaningful consideration. That failure was a constructive failure by the Authority to exercise its jurisdiction in the circumstance of the present case.

Conclusion

1. Accordingly, there was a jurisdictional error by reason of the Authority’s failure to give real and meaningful consideration to the submissions dated 10 June 2017.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  17 July 2018