AKU18 v Minister For Home Affairs & Anor [2018] FCCA 1488 (7 June 2018)

Last Updated: 3 July 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKU18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 1488

Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority adopted an unduly narrow construction of s.473DD of the Act – whether it was legally unreasonable for the Authority not to exercise its discretion under s.473DC of the Act – no jurisdictional error made out – application dismissed.

Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 476

Applicant:

AKU18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 252 of 2018

Judgment of:

Judge Street

Hearing date:

7 June 2018

Date of Last Submission:

7 June 2018

Delivered at:

Sydney

Delivered on:

7 June 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr Liam Dennis MinterEllison

ORDERS

(1) The application is dismissed.
(2) The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 252 of 2018

AKU18

Applicant

And

MINISTER FOR HOME AFFAIRS

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 10 January 2018, 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 was found to be a male Tamil Hindu from the Batticaloa District in the Eastern Province of Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival on 10 October 2012. On 30 August 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
3. The applicant claimed to fear harm because he would be at risk of being harmed by the Sri Lankan authorities, including the army, the Special Task Force (“STF”) and the police, for imputed support of the Liberation Tigers of Tamil Eelam (“LTTE”) due to his ethnicity and his area of origin, his religion and involvement with the local community groups and Hindu temple, and his support for the Tamil National Alliance (“TNA”) in the 2012 Eastern Provincial Elections. The applicant also claimed to fear harm from the Tamil Makkal Viduthalai Pulikal (“TMVP”) and the Pillayan Group who may retaliate against him for failing to meet their extortion demands and refusing to support their election campaign in 2012.
4. The delegate made adverse findings in relation to part of the applicant's claims. The delegate referred to an incident alleged by the applicant in November 2009 and did not accept that attack can be attributed to members of the TMVP or the Pillayan Group. The delegate accepted that the applicant had been targeted between 1990 and 2004 for extortion but did not accept the applicant was of interest to the TMVP or the Pillayan Group after 2009.
5. The delegate referred to an incident involving SLA officers in July 2012 and the delegate accepted that the SLA approached him. The delegate placed weight on the fact that the applicant was able to refuse the SLA and was not subject to repercussions. The delegate did not accept the applicant's claim that the SLA wanted to harm him or that he was a target. The delegate found the applicant was a low-level supporter of the TNA and did not accept the applicant was targeted or harmed by the TMVP on account of supporting the TNA or refusing to assist the TMVP in their election campaign. The delegate found the applicant had never been harmed or targeted by the TMVP. The delegate did not accept the applicant has ever been imputed with pro-LTTE opinion and found the applicant failed to meet the criteria for the grant of the visa.
6. The delegate's decision was then the subject of a differently constituted Authority's determination made on 19 December 2016, that was reportedly the subject of orders made by a Registrar of the Court issuing writs quashing the decision of the Authority of 19 December 2016 and remitting the matter to the Authority for further determination according to law.
7. At the commencement of the hearing of this matter, the Court raised with the parties whether the Registrar had power to make the orders in relation to the grant of writs in the matter AFJ17 v Minister for Immigration & Anor [2018] FCCA 1495 (“AFJ17”) and whether or not the Court should make orders nunc pro tunc granting writs in those proceedings to cure the want of power by the Registrar in relation to the making of those orders. No objection was taken to that course by the parties and the Court accordingly made orders in AFJ17 nunc pro tunc.
8. The Court notes that the making of orders for the grant of constitutional writs requires the exercise of the judicial power of the Commonwealth in respect of jurisdiction vested under s 476 of the Act. Notwithstanding the consent of the parties, that requires a deliberation by the Court within its jurisdiction as to whether it is appropriate to grant constitutional writs. For the reasons given by the Court in support of the orders made nunc pro tunc in AFJ17, Registrars do not have power to issue constitutional writs by consent in this Court. No objection was raised by the applicant to the course proposed by the Court.

The Authority

9. Following the making of the orders on 9 June 2017, on 14 June 2017, the Authority wrote to the applicant by his authorised migration representative referring to the remittal of the matter and providing an opportunity to put on new information and submissions. There was a change of migration representative for the applicant and a patient health summary and psychologist's assessment dated 28 June 2017 were provided to the Authority, differently constituted. There was a submission dated 11 October 2017, requesting the Authority to exercise its discretion under s 473DC(3) of the Act to invite the applicant to comment in an interview or in writing on new information if the Authority makes a finding or findings that are different from the delegate's findings and if the Authority makes a finding or findings to consider new information in exceptional circumstances.

New information before the Authority

10. The Authority in its reasons dated 10 January 2018, referred to the background to the visa application and had regard to the information provided by the Secretary under s 473CB of the Act. The Authority referred to the submissions that were provided dated 30 September 2016, to a differently constituted Authority and identified as new information being first the claim that members of the TMVP are searching for the applicant in a particular location and that they are questioning his daughters about him on a regular basis. A second new claim is the name of a man who hit the applicant and the friend who told him, who was called S. The third new claim is that the applicant will be targeted by the Criminal Investigation Department (“CID”) for being a returned Hindu Tamil asylum seeker.
11. In relation to the new information in respect of the TMVP searching for the applicant, the Authority noted that the new information does not specify details such as when the questioning of his daughters had occurred or under what circumstances, or when or how the applicant had become aware of these events, and the applicant had not provided any explanation about why the information could not have been given to the delegate before the delegate's decision was made. The Authority accordingly found that the applicant had failed to satisfy the criteria under s 473DD(b)(i) of the Act.
12. The Authority referred to the new information concerning the person that hit the applicant and noted that the applicant only provided names and no other corroborating information about identity and found that the applicant had not satisfied the Authority that this new information is credible personal information that may have affected the consideration of the applicant's claims. The Authority was not satisfied there were exceptional circumstances to justify considering that new information.
13. In relation to the claim concerning the CID, the Authority found that claim did not appear to have any bearing on the applicants claims for protection raised in his visa application or during the interviews with the Department, which related to previous encounters with the STF, the army, the Sri Lankan police and members of the TMVP/Pillayan Group. The Authority noted the applicant's declaration did not indicate how this claim was characterised or provide any details in support. The Authority was not satisfied that this was information that could not have been provided to the delegate prior to the decision or that it constitutes credible personal information that may have affected consideration of the applicant's claims. The Authority found that the applicant had failed to meet the criteria under s 473DD(b) of the Act in respect of that new claim.
14. The Authority also referred to the fact that in relation to the claim concerning the TMVP searching for him and being targeted by the CID, the applicant was assisted by a registered migration agent at the time he lodged his visa application. The same agent attended the visa interview and provided post-interview submissions. The Authority noted that the visa interview occurred a number of months prior to the delegate's decision and noted that in the interview, having listened to the same, the applicant's claims were discussed in detail and the applicant was afforded multiple opportunities to raise further information, including at any point after the interview and prior to the decision being made. The Authority considered the applicant had had an adequate opportunity to present information in support of his claims. The Authority, in taking into account the applicant's case as a whole, including that the circumstances giving rise to the claims were in existence and within the applicant's knowledge prior to the delegate's decision, was not satisfied there are exceptional circumstances to justify considering this new information.
15. The Authority then referred to the new information provided on 30 June 2017, comprising the psychologist's report and the summary of treatment and a health summary and was satisfied there were exceptional circumstances to justify considering that new information. The Authority referred to an updated DFAT publication on country information in relation to Sri Lanka dated 24 January 2017 and had regard to the same in accordance with s 473DE(3)(a) of the Act. The Authority was in that regard satisfied there were exceptional circumstances to justify considering the same.
16. The Authority expressly then addressed the submission advanced on behalf of the applicant by the applicant's migration representative dated 11 October 2017, that the applicant be provided with an opportunity to comment in an interview or in writing on new information where the delegate makes a finding that's different from the delegate's findings or where the Authority makes a finding to consider new information in exceptional circumstances.
17. The Authority made express reference to s 473DA and s 473DB of the Act in Division 3 of Part 7AA, together with s 473GA and s 473GB of the Act, being taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. The Authority noted that subject to limited exceptions, the Authority must conduct its review by considering the material given by the Secretary under s.473CB of the Act without accepting or requesting new information or interviewing the applicant. The Authority referred to the power under s 473DE of the Act but found that duty was not engaged in the present case. The Authority acknowledged that s.473DC of the Act gives the Authority a discretion to invite a person to give new information and made express reference to the fact there is no duty to get, request or accept any new information where they are requested to do so. The Authority, taking into account the statutory scheme and the circumstances, including that the Authority's discretion to get new information enlivening s 473DE of the Act had not been engaged because of of s 473DE(3)(a) of the Act, determined not to invite the applicant to provide further comment or attend in respect of the updated country information as requested by the applicant’s migration representative.

The Authority’s consideration of the Applicant’s claims for protection

18. The Authority considered it plausible that opportunistic demands for money and threats were made to the applicant as the applicant described and accepted that the applicant was involved in an incident where he sustained a blow to his head, lost consciousness for a period of time and sustained a serious injury to his leg. The Authority did not accept the applicant's claim that members of the TMVP were responsible for assaulting him and causing his injuries in retaliation for not arranging money to be paid to them. The Authority did not accept the TMVP intended to retaliate against the applicant's refusal to pay them money. The Authority considered the applicant’s claim that the TMVP attempted to exploit the applicant's influence in the community to advance their party's campaign, but when their requests were refused, they took no further interest in the applicant. Having regard to the country information cited by the Authority and the absence of retaliation by the TMVP/Pillayan Group when the applicant refused to pay money demanded from him, the Authority was not satisfied that there is a real chance of harm to the applicant on return to Sri Lanka on these bases.
19. The Authority found the applicant was not imputed with an anti-government opinion or considered to be a political or security threat by the Sri Lankan authorities or paramilitary groups on the basis of volunteering with NGOs, such as the Rural Development Society (“RDS”), People Organisation of Progress Evolution (“POPE”) and SOS, or undertaking community leadership roles with schools and the Hindu Temple.
20. The Authority did not accept the applicant's explanation for why the army officers did not retaliate against him as plausible. The Authority did not accept that the army was targeting the applicant or had any adverse interest in him at the time of his departure, including arising from his role in the outcome of their proposal to build a Buddhist temple in the village. The Authority did not accept that at the time of the applicants departure that the applicant was being targeted or was at risk of being harmed by the Sri Lankan authorities, including the army, or from members of the Pillayan Group/TMVP due to imputed LTTE involvement, his political support of the TNA, his refusal to pay money, join or otherwise support the Pillayan Group/TMVP, his religious beliefs, or that his home was visited by people seeking his whereabouts with adverse intent. The Authority did not accept the applicant would attract attention from the Sri Lankan authorities on arrival in Sri Lanka and was not satisfied there is a real chance the applicant would be targeted by the Sri Lankan authorities, including the army, STF, police or paramilitary groups such as the TMVP/Pillayan Group on return to Sri Lanka.
21. The Authority did not accept the applicant would face discrimination or exposure to harm on the basis of his religious beliefs or practice. The Authority did not accept the applicant would be denied or unable to access appropriate medical treatment or services for any of the reasons in s 5J(1)(a) of the Act.
22. Taking into account the country information, the Authority found the applicant would not be at risk of serious harm due to his illegal departure or as a failed asylum seeker. The Authority found the applicant did not meet the definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria for complementary protection. The Authority made specific findings addressing the applicant's religious beliefs, mental health and illegal departure and found the applicant would not face significant harm and affirmed the decision under review.

Before this Court

23. On 22 February 2018, this Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.
24. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court.
25. The grounds in the application are as follows:
    • 1. The IAA adopted an unduly narrow construction of s437DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the Practice Direction No. 1 and in so doing, misconstrued its statutory task and constructively failed to exercise jurisdiction under s473DD.
    • Particulars
    • a. At [8]-[9] 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 jurisdiction under s473DD;
    • b. In determining whether the new information as identified by the IAA could be considered by it, s473DD required the IAA to determine whether there were exceptional circumstances to justify its consideration of the new information as well as determining whether it is satisfied as to why the new information was not and could not have been provided to the Minister before the Minister made its decision, or that the new information was credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant's claims;
    • c. S473DD(a) requires a consideration by the IAA of all relevant circumstances in determining whether there are exceptional circumstances that justify the consideration of the new information. The relevant circumstances include a consideration of the significance of the new information in the context of the applicant's claims and of its nature and probative value.
    • 2. The IAA acted unreasonably in rejecting the applicant's written request that the IAA exercise its discretion under s473DC(3) and invite the applicant to comment in an interview or in writing on any finding to consider new information in exceptional circumstances.
    • Particulars
    • a. On 11 October 2017 the applicant sent a written request to the IAA to exercise its discretion under s473DC(3) when making a finding or findings to consider new information in exceptional circumstances;

b. In [9] the IAA made findings that it was not satisfied that there were exceptional circumstances to justify considering that:

i. Members of the TMVP party were searching for him in K and they were questioning his daughters about him on a regular basis; and
ii. He will be targeted by the CID for being a returned Hindu Tamil asylum seeker.
c. In [10] the IAA was satisfied that there were exceptional circumstances to justify considering the Summary of Psychological Assessment dated 2 February 2017 and a Summary of Treatment dated 28 June 2017 prepared by a counsellor from STARTTS and the further findings in [20] in particular that there was no information before me to indicate that the applicant's psychological state or his physical health prevented him from presenting his claims for protection and information to support those claims; and
d. Given these findings the IAA acted unreasonably in not exercising its discretion under s473DC(3) as requested by the applicant and putting these findings to the applicant for comment.

26. From the bar table, the applicant maintained that if he had been called and asked to give evidence to the Authority he would have been able to give an up-to-date position as to why he was in danger or at risk. The applicant maintained that he did not have documentary material but that he could have provided oral information about his claims had the Authority invited him to attend or to comment. The applicant also referred to the fact that he has been mentally harmed. In relation to the applicant's submissions concerning having received no invitation to give evidence orally or to comment, this in substance reflects ground 2 of the grounds in the application which will be addressed below. The applicants submissions otherwise invite this Court to engage in impermissible merits review. This Court does not have power to review the merits.
27. Insofar as the applicant orally from the bar table referred to his mental health, that was an issue that the Authority took into account and the Authority accepted that particular proposed new information and had regard to the same. The Authority nonetheless made adverse findings that were open to the Authority in finding that the applicant failed to meet the criteria for the grant of a protection visa. It was in relation to that medical information that the Authority said it accepted that the applicant experiences mental and physical health problems for which he requires treatment and found that country information indicates that healthcare is freely available to all people through the public sector health system, but found that some medicines and treatment have to be purchased through private providers. The Authority found there was nothing in the country information, and the applicant had not so claimed, that he would be denied or unable to access medical treatment or services in Sri Lanka for any reason in s 5J(1)(a) of the Act.
28. In relation to complementary protection, the Authority also expressly addressed the applicant's issues raised with his physical and mental health and was not satisfied there is a real risk the applicant would experience significant harm due to his physical and mental health. Nothing said by the applicant from the bar table identifies any jurisdictional error.

Ground 1

29. The Authority's reasons expressly identify consideration of both limbs of s 473DD(b) of the Act in relation to the information that the Authority was not satisfied there are exceptional circumstances to justify considering. The Authority's reasons do not support an inference or finding that the Authority adopted an erroneous meaning of s 473DD of the Act. The adverse finding by the Authority in relation to the proposed new information identified by the Authority reflects the Authority considering the significance of the information and as summarised above, adverse findings that were open for the reasons given by the Authority. The Authority's exercise of the power under s 473DD of the Act in relation to the proposed new information cannot be said to be legally unreasonable and no jurisdictional error is made out by ground 1 of the application.

Ground 2

30. In relation to ground 2, it is apparent that the Authority expressly referred to the request to invite the applicant to comment departing from the delegate's reasons or considering new information. The Authority correctly identified a statutory regime and correctly identified a discretion to exercise the power under s 473DC of the Act. It was open to the Authority in the circumstances of the present case, having considered the applicant’s submission, not to exercise the power under s 473DC of the Act. The Authority's decision not to exercise a power under s 473DC of the Act in the circumstances of the present case cannot be said to be legally unreasonable. The Authority was entitled in conducting the review to depart from the delegate's findings and it was appropriate for the Authority to take into account the most recent country information in determining the applicant's claims.
31. I do not accept that the taking into account of the country information, being the most recent updated version of the DFAT country report under s 473DE(3)(a) of the Act, engaged circumstances in which the Authority in the present case was required on grounds of legal unreasonableness to invite the applicant to comment or respond to the updated country information. In that regard, the delegate had expressly referred to the DFAT country information report dated 18 December 2015 in the delegate's reasons.
32. Further, for the reasons earlier given, the applicant's complaint that he was not called upon to comment or give further information was explained by the Authority by reference to the statutory provisions and that subject to the provisions, the Authority was required to consider the review material without accepting or requesting new information or without interviewing the referred applicant. The Authority's reasons reflect an active intellectual engagement with the submission advanced to exercise the power under s 473DC of the Act. The Authority took into account the significance of the new information. The Authority's adverse finding in relation to the exercise of that power cannot be said to be unreasonable and was open to the Authority. The decision of the Authority not to exercise the power under s 473DC of the Act in light of the Authority's reasons cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 2 of the application.

Conclusion

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

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 3 July 2018