FTA17 v Minister for Immigration
[2019] FCCA 1730
•21 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FTA17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1730 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well founded – whether the Authority failed to consider a claim, or engaged in illogical reasoning or failed to consider the future risk of harm or made an unreasonable decision considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 473DA, 473DD |
| Cases cited: Minister for Immigration v CLV16 [2018] FCAFC 80 Minister for Immigration v Li (2013) 249 CLR 332 |
| Applicant: | FTA17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 4031 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr L Leerdam of DLA Piper |
ORDERS
The application filed on 27 December 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 4031 of 2017
| FTA17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 8 December 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 14 June 2019.
The applicant arrived in Australia at Cocos (Keeling) Islands by boat as an Unauthorised Maritime Arrival (UMA) on 3 October 2012.[1]
[1] Court Book (CB) 12.
Background
The applicant is a male citizen of Sri Lanka. He lodged an application for a Safe Haven Enterprise Visa (SHEV) on 28 February 2017.[2]
[2] CB 32-68.
The applicant’s claims were set out in a statement attached to his application.[3] In summary the applicant claimed:
a)in 2008 he, his cousin and his cousin’s wife and child were detained, when he was visiting them in Colombo. They were detained with another four men in an adjoining apartment who were known LTTE members. The applicant and his cousin’s wife and child were released after a month, because he was a minor and the wife had a child. During that time the applicant was interrogated but not beaten;
b)the applicant was again detained in April 2010 and held for about a day. He was again interrogated by the Criminal Investigations Department (CID);
c)the applicant claimed he was released but under surveillance until 2012, however he was not interrogated again. He claimed he was not allowed to leave his town without approval;
d)a few months after the applicant’s arrival in Australia, the CID came to his house and asked his mother about his whereabouts. She said he was missing and his father was ordered to attend their office for questioning the next day;
e)in 2013 his father was again questioned by the CID about the applicant's whereabouts; and
f)the applicant fears returning because he left Sri Lanka because he had violated the CID order not to leave his town without permission.
[3] CB 69-76.
On 23 May 2017 the delegate refused the application.[4] The delegate accepted that the applicant was a Tamil who had been detained and released by the authorities in 2008 and 2010 but did not accept that he was of individual interest to the authorities.
[4] CB 109-121.
On 26 May 2017 the matter was referred to the Authority.[5]
[5] CB 123.
The applicant made a submission to the Authority dated 10 June 2017.[6]
[6] CB 130-148.
On 8 December 2017 the Authority affirmed the delegate's decision.[7]
[7] CB 150-165.
The decision of the Authority
The Authority found that the submission mostly consisted of “legal arguments”, and therefore considered the submissions to be argument rather than information.[8]
[8] [4].
New information
The Authority considered the applicant’s submissions as to why it should give weight to a report attached to the applicant's submissions (CAT report)[9] based on committee meetings held on 15 and 16 November 2016, which the Authority found was new information.
[9] CB 135-148.
The Authority at [5] gave two reasons why it would not give weight to the CAT report as “reflective of the current situation in Sri Lanka”:
a)first, the Authority found that the applicant had not previously claimed that his father had been killed; and
b)secondly, the Authority noted that the delegate relied on the most recent DFAT report dated 24 January 2017, which post-dated the CAT report.
The Authority found there was no explanation as to why the CAT report was not or could not have been provided to the delegate (pursuant to s.473DD(b)(i) of the Migration Act 1958 (Cth) (Migration Act)), nor had any relevant explanation been provided as to why the report may be considered credible personal information (pursuant to s.473DD(b)(ii) of the Migration Act), nor that the applicant's father was killed by the army. The Authority found the report was general country information.
Further, the Authority, taking everything into account, was not satisfied that there were exceptional circumstances pursuant to s.473DD(a) of the Migration Act justifying the consideration of this information.
Authority Decision
The Authority accepted that the applicant was detained in 2008 in Colombo while visiting his cousin.[10] The Authority accepted that he was detained for approximately one month, that he was questioned but not physically mistreated. The Authority was however not satisfied that the authorities had an ongoing interest in the applicant, or considered him to have any real or imputed LTTE connection, on the basis that there was no follow up or ongoing monitoring after his release.[11]
[10] [10] (see also [18]).
[11] [11].
The Authority accepted that the applicant may have been detained in 2010 but was not satisfied the detention was due to his cousin. The Authority accepted that the authorities may have been aware of his previous detention but found that this three hour detention was a one off incident, as part of the authorities’ monitoring and harassment of Tamils at that time. The Authority noted that the applicant was not placed in an LTTE rehabilitation camp as many others who were considered to have LTTE links were. Based on country information the Authority concluded that the applicant was released not because of his age but because the authorities did not have any ongoing concerns.[12]
[12] [12] (see also [19]).
The Authority noted the applicant’s evidence that between his release in 2010 and when he left Sri Lanka in 2012, the applicant finished his schooling and was working. The Authority found that the applicant had embellished his claims and that there was no credible reason why the authorities would suddenly start interrogating the applicant's cousin about the applicant given the applicant had no previous or ongoing association with the LTTE. The Authority did not accept that the applicant's cousin was detained for as long as the applicant claimed, and found that he had embellished this claim.[13]
[13] [13].
The Authority was not satisfied that the applicant was under surveillance from 2010 to 2012, as he claimed he was finishing school and working at this time. The Authority found that at the time the applicant departed Sri Lanka he was not of interest to the authorities.[14]
[14] [20].
The Authority did not accept that the applicant's father was called in for questioning after the applicant's departure and found that the applicant did not elaborate on those claims. Nor did the Authority accept that two months before his protection visa interview five armed gunman entered the applicant's house looking for him. The Authority found this was fabricated after being told by the delegate that he had no profile.[15]
[15] [21].
The Authority was also not satisfied that the applicant was subject to an ongoing CID order requiring him to get permission to leave his hometown.[16]
[16] [21].
The Authority considered the fact that the passport submitted by the applicant had a differently spelling of the applicant’s surname. However the Authority noted that the applicant stated in his application and at his arrival interview that the passport was genuine. The Authority was therefore not satisfied that the passport was not genuinely issued, and found this to be further evidence that he was not of interest to the Sri Lankan authorities in 2012.[17]
[17] [24].
Based on country information referred to at [25]-[26] and the Authority’s finding that as to the applicant's profile, the Authority was not satisfied the applicant faces a real chance of harm because of his Tamil ethnicity.[18]
[18] [27].
The Authority accepted that if the applicant was returned to Sri Lanka from Australia he would be considered a returning asylum seeker who left Sri Lanka illegally.[19] But based on the country information, the Authority found that there was not a real chance that the applicant would be harmed by the authorities because of his return as a failed asylum seeker.[20] The Authority found that he may be charged under the Immigrants & Emigrants Act.[21] The Authority found he may be brought before a magistrate, detained briefly, fined and possibly detained until a family member collected him.[22] But the Authority was not satisfied that the imposition of a fine, surety or guarantee would constitute serious harm, nor that a fine would threaten the applicant's capacity to subsist.[23] The Authority found that the Immigrants & Emigrants Act was a law of general application and was not discriminatory in its terms.[24]
[19] [28].
[20] [29].
[21] [31].
[22] [32].
[23] [33].
[24] [34].
Based on the same findings, the Authority found that there was not a real risk the applicant would face significant harm for reason of his imputed political opinion or as a Tamil asylum seeker.[25]
[25] [39].
The Authority was also not satisfied that the circumstances of the applicant's return to Sri Lanka amounted to serious harm.[26]
[26] [41].
The current proceedings
These proceedings began with a show cause application filed on 27 December 2017. The applicant continues to rely upon that application which has four grounds in it as follows:
Ground 1
The Authority failed to consider contents of the submissions that was put to the IAA when assessing future harm
Particulars
a.The authority misdirected itself as it considered the written submission provided to the IAA was an "argument" only.
b.The IAA appears to be uncertain if the submission contained an argument or if it was new information.
c.The authority states, "This submission mostly consists of legal argument" suggests the IAA was not certain of the contents that it was reviewing or had before it.
d.Therefore it creates a situation where the IAA is likely to have made an error as it failed to consider the contents of the submission provided to it.
Ground 2
The IAA's reasoning at [12] appears to be inconsistent, illogical and unreasonable
Particulars
a.The authority states "I accept the applicant may have been detained at this time", referring to an incident in 2010 [12].
b.The authority states "The authorities may have been aware of his previous detention" [12]. The previous detention occurred in 2008 where the applicant was "arrested, detained and interrogated in 2008 for a month" [18].
c.The authority was not satisfied that the detention in 2010 was because of the applicant’s cousin S [12].
d.The authority considered the three hour detention in 2010 "a one off incident" [12].
e.It was unreasonable to conclude in the manner it did at [12] that the 2010 incident was a one off incident and was not connected to the applicant's previous detention or reason for previous detention (i.e. imputed political opinion due to cousin S).
Ground 3
The IAA failed to consider future harm the applicant would face despite the applicant having been released in 2008 and 2010 because the authorities found the applicant was not a person with LTTE links.
Particulars
a.The authority accepted that the applicant was "arrested, detained and interrogated in 2008 for a month" [18].
b.The authority was of the view that the "authorities had no interest in him after 2008" [12].
c.The authority accepted that the applicant was detained for three hours in 2010 [19]
d.The authority was of the view that the reason the applicant was released in 2010 was because the authorities "did not consider the applicant was a person with connections to the LTTE [19].
e.The authority states "The authorities may have been aware of his previous detention" [12].
f.Despite the IAA considering lapse of time since the 2008 and 2010 incidents, it ought to have considered if the applicant would face serious harm as experienced in the past.
g.In 2008 the IAA accepted that the applicant was released because he was not a person of interest.
h.In 2010 the IAA accepted that the applicant was released because he was not a person of int erest .
i.Despite the applicant being cleared in 2008 and released he was detained again for three hours in 2010.
j.Therefore the IAA should have consider if there was a real chance of the applicant being rearrested once again as the authorities are aware of the previous detention incidents.
k.The IAA failed to consider if the applicant's risk of harm is compounded due to a different spelling of the applicant's surname on the applicant's passport [24].
Ground 4
The IAA's decision was unreasonable at [20] and failed to provide reasons at [21) for rejecting the applicant's claim
Particulars
a.The authority accepted that the applicant was “arrested, detained and interrogated in 2008 for a month” [18] and subsequently detained in 2010 for three hours.
b.As the applicant was subsequently detained in 2010, it was not open for the IAA to conclude at [20] that the applicant was not under surveillance after his release in 2010.
c.More details could be provided lat er.
d.The applicant claimed at [21] that the applicant's father was called in for questioning on account of the applicant, this the IAA did not accept, the IAA failed to provide reasons as to why it did not accept this claim.
e.It was unreasonable for the IAA to state at [21] "The applicant did not elaborate or provide any further details on these claims", because the Applicant was only narrating what his family had told him occurred after the applicant departed Sri Lanka.
(errors and emphasis in original)
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 16 March 2018.
Only the Minister filed pre-hearing written submissions in this matter. I invited oral submissions from the applicant this morning. He raised a number of issues. First, he complained that he did not have an interview with the Authority. As I explained to him, however, that simply reflects the procedural code under which the Authority operates.
Secondly, he claimed, in effect, that the interview he had with the Minister’s delegate was not procedurally fair because of technical video and interpretation problems and disturbances during the interview. When I asked him if he had raised those problems in his submission to the Authority, he answered in the affirmative.
The submission made on behalf of the applicant by his migration agent is reproduced on pages 131 to 134 of the court book. That submission is silent on any question concerning the quality of the delegate’s interview. Neither does it appear that any issue of procedural fairness of that interview was otherwise raised with the Authority or, indeed, with the Minister’s Department.
The applicant further complained that the Authority saw no problem in the event that he returns to Sri Lanka. As I explained to him, that is not strictly correct, as the Authority found that he would encounter some problems on return, including for breaching the Sri Lankan Immigrants & Emigrants Act. However, the Authority did find that there was not a real chance or real risk that the applicant would suffer serious or significant harm on return. In my view, that conclusion was open to the authority on the material before it.
Finally, the applicant complained that the Authority refused to accept information he had provided about a visit to his family home by the Sri Lankan authorities after he had departed for Australia. I initially understood that submission to be a proposition that the Authority had refused to consider that information under s.473DD of the Migration Act. It is, however, apparent from the Authority decision that the assertion of the visit to the applicant’s home following his departure was not new information and was considered by the Authority, although the applicant’s claims were not accepted.
In his submissions in reply, the applicant addressed the merits of his claims for protection. He is concerned that the authorities are still looking for him. He is afraid that he will be arrested and detained. He is afraid that he may be put beyond the reach of help from his family. He is concerned that the authorities have his fingerprints and that now he is an adult he will be treated more harshly than in the past. None of those matters bear on any legal issue arising out of the Authority decision.
The applicant did clarify one aspect of the submission made on his behalf to the Authority by his agent. That submission, as noted by the Authority in its decision at [5], [27] includes the assertion that the applicant’s father was killed by the Sri Lankan Army. The applicant confirmed that this was a mistake and that his father was only threatened.
[27] CB 151.
The matters raised in the grounds of review in the application are addressed in the Minister’s submissions. I agree with those submissions.
Ground 1
The complaint in Ground 1, when read with the particulars appears to be with the Authority’s finding that the submissions “mostly consist[ed] of legal argument”. The ground suggests that this denotes that the Authority was not certain of the contents of the submission, and therefore it failed to consider the contents of the submission.
When [4] and [5] of the Authority’s reasons are read together it is clear that the Authority found that the submission was mostly legal argument, with the exception of the reference to the CAT report and the reference to the applicant’s father’s death, which the Authority considered to be new information. The Authority separated argument about the delegate’s decision from the new information.[28] The argument was not necessarily “legal argument” but the process of separation of it from new information was the correct approach to take.
[28] Minister for Immigration v CLV16 [2018] FCAFC 80 at [74].
Further, in summary the submission to the Authority raised the following points:
a)that the delegate failed to consider that the passport was fraudulent and that the delegate thereby failed to consider the applicant's claims about detention and surveillance. The Authority considered the issue of the applicant’s passport at [24], and otherwise considered the claims about detention and surveillance;
b)the submission takes issue with the fact the delegate found the applicant was not of interest to the authorities, but then afterwards considered “even if he was”. It alleges that the finding was “not made in a confident manner”. This did not have to be considered by the Authority as there was no requirement for the delegate to make his finding “confidently”, nor was there any error in the delegate’s reasoning;
c)the submission argues that the applicant was not provided with the complete 2017 DFAT report and this was a breach of procedural fairness. However, there was no requirement for the delegate or the Authority to provide the report to the applicant. Section 473DA of the Migration Act relevantly outlines the natural justice hearing rule as it operates in the context of reviews conducted by the Authority. In particular, s.473DA(2) specifically outlines that nothing in Part 7AA requires the Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under s.65 of the Migration Act;
d)the submission alleges the applicant may not have a family member to provide bail and that there is sufficient intention in any detention to amount to significant harm. These matters were considered by the Authority at [32] and [41]. In accordance with the decision of SZTAL v Minister for Immigration,[29] although not considered expressly, the Authority made findings consistent with the High Court's decision at [41]; and
e)that returnees from Australia are being returned en masse, and therefore would be processed en masse on return and may result in a longer period of detention if someone in the group aroused suspicion. This claim was subsumed by the finding that the applicant himself being of no interest to the authorities, would be detained for a short period at [32].
[29] (2017) 262 CLR 362.
Ground 2
Ground 2 alleges that the Authority’s reasoning at [12] was unreasonable, when it found that the applicant's 2010 detention was a one off incident and was not connected to the applicant's previous detention.
The finding is not unreasonable. To establish unreasonableness, it must be shown that the decision-maker’s findings lacked any “evident and intelligible justification”[30] or were “clearly unjust” or “arbitrary” or “capricious”.[31] That is, the decision “is one at which no rational or logical decision maker could arrive on the same evidence.”[32]
[30] Minister for Immigration v Li (2013) 249 CLR 332, [76].
[31] Minister for Immigration v SZMDS (2010) 240 CLR 611, [130].
[32] Ibid.
The Authority’s decision in this case does not reflect any of those descriptions. The Authority has provided detailed reasons as to why it found that the applicant’s 2010 incident was not connected to the 2008 incident. Not only did the Authority make previous findings that the applicant was released in 2008 because he did not have a profile, at [12] the Authority also reasoned, with reference to country information that the 2010 incident was in line with the monitoring and harassment of the Tamil population. The Authority further noted that the applicant was not put in a rehabilitation camp, as the country information said many others considered to have LTTE connections were.
Ground 3
Ground 3 and particulars at (a) to (j) in effect allege that the Authority failed to consider that because the applicant was detained on two occasions, it was likely to happen again.
The Authority found the two incidents were not connected, and that they were consistent with the situation of Tamils during the conflict. The Authority found, based on country information, that the situation had improved for Tamils, and because the applicant did not have a profile he would not face harm.
Particular (k) contends that the Authority failed to consider that the applicant's risk of harm was compounded due to the different spelling of his surname in his passport. The applicant does not appear to have made any claim on this basis. In any event at [24], the Authority accepted the applicant’s evidence that the passport was genuine.
Ground 4
Ground 4 alleges that it was unreasonable for the Authority to reject the applicant’s claims at [20] and [21].
This ground, read in conjunction with the particulars, is no more than a disagreement with the Authority’s findings that the applicant was not under surveillance after his release in 2010 and that the applicant's father was not called in for questioning. Both of these findings could not be said to lack an evident and intelligible justification:
a)the Authority found the applicant was not under surveillance after 2010 because he was able to continue his study and work; and
b)it was open for the Authority to find that the applicant did not elaborate on his claim regarding his father and that the claims were embellished.
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,800. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,800.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 June 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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