FEDERAL COURT OF AUSTRALIA

ANE17 v Minister for Immigration and Border Protection [2018] FCA 305

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

LEE J:

a    introduction

1    On 27 September 2016, the applicant filed an application for extension of time and leave to appeal, together with an affidavit he had affirmed four days earlier. The affidavit did not annex a copy of a draft notice of appeal (as is required by FCR 35.14(3)(d)). Having noted that, under the heading “Grounds of application”, the following three matters were identified:

(1) Jurisdictional error

(2) Error of law on the face of the IAA decision

(3) I still rely on the grounds and details stated in my Federal Circuit Court decision and the application filed.

(Uncorrected)

2    The primary judge delivered his reasons on 5 September 2017, which dismissed an application for an order to show cause made pursuant to s 476 of the Migration Act 1958 (Cth) (Act), which sought review of a decision of the second respondent (IAA) made in January 2017. Rule 44.12(2) of the Federal Circuit Court Rules 2001 (Cth) specifies that a dismissal of an application to show cause is interlocutory in nature. Therefore, the application before me requires leave to appeal: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Moreover, notwithstanding that the orders made by the primary judge were “suspended for a period of seven days” (see Order 3 made on 5 September 2017), the time for filing of the current application for leave to appeal was made outside the period of 14 days allowed for such applications to be made. Hence, apart from needing leave, for reasons I have already explained, there is also a need for an extension of time.

3    I raised with Mr White, who appeared on behalf of the first respondent (Minister), that I was disposed to proceed on the basis that if I identified any substantive merit in any ground (or perceived ground) raised by the applicant, then the delay was of such short duration that I would be disposed to both grant an extension of time and also grant leave to appeal. This is in circumstances where the only possible prejudice identified by the Minister is the prejudice occasioned by meeting a meritless appeal. Although he made no formal concession, Mr White recognised that the substantive issue on the present application is whether or not I can identify any arguable error.

4    Although not directly relevant to the disposition of the application, I should pause to note that the applicant’s affidavit, which was unchallenged, establishes that the applicant has no lawyer to represent him in this Court and that the applicant still fears persecution in his home country.

5    It is convenient to now turn to the way in which the matter was presented before the primary judge in the application made to the Federal Circuit Court. However, before doing so, I should provide some very brief background details.

b    relevant background

6    The applicant is a Sri Lankan citizen, and it is common ground that he arrived in Australia at an excised offshore place, by boat, on 26 October 2012. This is of significance, because it means that the applicant is an unauthorised maritime arrival subject to the fast-track review process introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which relevantly inserted Pt 7AA into the Act.

7    It is unnecessary for me to summarise the statutory regime introduced by Pt 7AA, as it has been considered in some detail in two recent decisions of the Full Court: see Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [11]-[26] per Griffiths J and BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 at [64]-[75] per Charlesworth J. It suffices to note that, as the simplified outline in s 473BA of the Act provides, Pt 7AA:

Provides a limited form of review of certain decisions…to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country.

8    In any event, in April 2016, the applicant lodged an application for a Safe Haven Enterprise visa and set out his claims for protection, claiming that he was a Tamil and a Hindu born in the Ampari District in Sri Lanka and that he subsequently moved to the capital, Colombo, for work in 2010. The applicant claimed, as he repeated in oral submissions before me, that in 2004, his mother, sister and brother were killed in a tsunami and, after living in a refugee camp for one year from January 2005, he went to live with his grandmother and brother. On any view of it, the applicant’s circumstances present a very sad situation.

9    The applicant claimed that after voting in an election in August 2012, he and his friends were approached by a man who demanded they go back and vote again for a particular political organisation. The applicant and his friends refused, the consequence of which was a violent altercation during which a friend of the applicant was stabbed. Following the altercation, the applicant retreated, fearing for his life and remained in hiding while associates of the provocateurs came looking for him at his home. The applicant feared harm, and made arrangements to travel out of Sri Lanka. He departed in October 2012 and made claims that, on several occasions, persons have returned to his grandmother’s house looking for him.

10    The applicant attended an interview before a delegate of the Minister in September 2016. Notably, the delegate found that the applicant was a credible witness who provided a generally consistent account of his experiences, and accepted most of his claims. Notwithstanding this, the delegate refused to grant the applicant a visa on the basis that following an assessment of the claims and evidence, including, importantly, the relevant country information, the delegate was not satisfied the applicant faced a real chance of serious harm or a real risk of significant harm on return to Sri Lanka.

11    In accordance with the statutory scheme to which I have already made reference above, the matter was referred to the IAA, which ultimately affirmed the delegate’s decision. No new information was obtained nor received from the applicant. Although the IAA identified inconsistencies in the information provided by the applicant (concerning when it was alleged that the persons responsible for the violent altercation allegedly came looking for him), the IAA noted that the applicant’s claims had been consistent since his arrival in Australia and that there was support for them in the country information.

12    The IAA reached the conclusion that the applicant would not be of any interest to those he identified as being intent on causing him harm on his return and, in summary, was not satisfied the applicant faced a real chance of harm now or in the reasonably foreseeable future. Similarly, the IAA was not satisfied the applicant faced a real risk of significant harm as a Tamil from the Eastern Province or as a returning failed Tamil asylum seeker. Significantly, for reasons I will come to shortly, the IAA accepted that having departed Sri Lanka illegally, the applicant would, if he returned to Sri Lanka, be subject to processing and would likely be charged, fined and held in detention for a short period or potentially released on his own surety.

13    Notwithstanding this, the IAA was not satisfied that the prospect of being held briefly in overcrowded prison conditions with poor sanitation and a lack of resources amounted to “an intention to inflict pain or suffering that is cruel or inhuman in nature, severe pain or suffering or cause extreme humiliation” (at [42]). In short, the IAA was not satisfied the applicant met the criteria for the grant of a visa pursuant to ss 36(2)(a) or 36(2)(aa) of the Act.

14    Not being satisfied with the IAA’s decision, the applicant filed an application seeking judicial review, which ultimately came before the primary judge for a show cause hearing, as I have previously mentioned.

c    proceedings before the federal circuit court

15    Two grounds of review were advanced before the primary judge. They can be summarised as follows:

(a)    By Ground 1, the applicant alleged that the IAA “failed to make a finding/proper evaluation” of the applicant’s “central refugee claims”, even though he had “submitted reliable evidence to substantiate” his claims.

(b)    By Ground 2, the applicant claimed the IAA fell into error by not inviting him to an interview to comment on, or respond to, adverse information that was relied on to refuse his visa.

16    I interpolate to note that, given that the third ground identified in the application for leave to appeal asserts that the applicant still relies on the grounds advanced in the Federal Circuit Court, it does appear, doing the best that I can, that the contentions made before the primary judge are, in effect, re-agitated before me with the necessary refinement that the primary judge fell into recognisable error by failing to uphold those grounds.

17    In any event, the primary judge dealt with the two grounds advanced before him at [24]ff. He proceeded to first identify the two grounds as follows (at [24]):

Ground-1

The IAA has committed jurisdictional error in my case. It has declined its jurisdiction in my case as it has failed to make a finding/proper evaluation, as the IAA is required by law, on my central refugee claims although I have submitted reliable evidence to substantiate my central refugee claims: They are:

I fear returning to Sri Lanka as I will be harmed by Pillayan's associates.

I fear harm because I am a Tamil from the Eastern Province of Sri Lanka who departed Sri Lanka illegally and I will be returning as a failed asylum seeker.

Ground-2

When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me for an interview/invitation to comment on, or respond to the adverse information on which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments relating to the issues and relied on this to refuse my protection visa in relation to my referred application with the IAA.

I indicated to the IAA that I was willing to provide further evidence to substantive my refugee claims being reviewed by the IAA.

I will provide further grounds and the particulars of these grounds in my Amended Application when it is required by this court.

18    Dealing initially with Ground 1, his Honour at [29] observed as follows:

In the first ground the applicant states the Authority “failed to make a finding/ proper evaluation” of the applicant’s “central refugee claims”, even though he had “submitted reliable evidence to substantiate” his claims and repeats his key claims of harm. This ground essentially contends the Authority ought to have come to a different factual conclusion based on the material before it. Such complaint goes no further than an impermissible invitation for the Court to review the merits of the Authority’s decision.

(Citation omitted)

19    Dealing with Ground 2, his Honour observed at [30]-[33]:

In Ground 2, the applicant complains that the Authority erred by not inviting him to an interview or to comment on, or respond to, adverse information that was relied on to refuse his protection visa application. He erroneously contends the Authority was required to invite him to provide his comments in writing and to appear in order to give evidence and present arguments. He claims he indicated to the Authority that he was “willing to provide further evidence” to substantiate his claims.

There is no evidence to support the applicant’s assertions in this ground. Nor does the applicant even identify what adverse information he contends the Authority was required to invite him to comment upon or respond to.

In any event, the applicant’s complaints in ground two misconceive the review function of the Authority and the accompanying statutory regime governing fast-track reviews. The applicant’s fast track review was subject to s.473DA and the applicant was not owed common law procedural fairness in respect of the fair hearing rule.  The limited nature of the scheme or review conducted by the Authority was recently affirmed by the Federal Court. Further, s.473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the Authority under s.473CB “without accepting or requesting new information”. Section 473DC(1) specifies that the Authority may, subject to Part 7AA, “get any documents or information (new information)” that “were not before the Minister when the Minister made the decision under section 65” and “the Authority considers may be relevant”. However, s.473DC(2) confirms the discretionary nature of the power in subsection (1) by stating the Authority “does not have a duty to get, request or accept any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”. Further, s.473DD specifies that new information must not be considered unless the Authority is satisfied that exceptional circumstances exist, the information could not have been provided to the Minister and is credible personal information which was not previously known.

(Citations omitted)

d    consideration

20    Having reviewed the relevant material, I find it impossible to disagree with the primary judge’s conclusion that the IAA: comprehensively considered the applicant’s claims against the refugee and complementary protection criteria; concluded that the applicant did not face a real chance of serious or significant harm; and that the findings made by the IAA were findings open to it on the available material.

21    Put bluntly, what was sought below is essentially what is sought here: an impermissible merits review of the assessment made by the IAA.

22    Moreover, as the primary judge correctly observed at [37], there was no jurisdictional error in the IAA referring to its findings of fact in relation to the applicant’s refugee claims when assessing his claims under the complementary protection provisions: see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54]-[56] per Robertson J; MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] per Marshall J.

23    I should say something about a further matter, and that is the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936. This decision was handed down immediately following the primary judge’s determination. It was a case where it was argued that because the Tribunal (which had dealt with the claim of SZTAL) had made findings that, relevantly, SZTAL would be remanded in prison, and that prisons in Sri Lanka fell below international standards to the knowledge of the Sri Lankan authorities, this amounted to an act or omission by which physical or mental pain or suffering was intentionally inflicted.

24    Here, of course, there was a finding by the IAA that upon his return to Sri Lanka the applicant was likely to be incarcerated for a short period in a prison which did not meet international standards, but that the brief period of detention likely to occur did not rise to levels of threat to his life or liberty, or to significant physical harassment or ill treatment or any other form of serious harm.

25    In accordance with the reasoning of the majority in SZTAL, it could not be said that the findings made by the IAA lead to a conclusion that the period of remand that the applicant would face would amount to an act or omission by which there was intentional infliction of, or the intention of causing, harm to the applicant. As the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL explained (at 943 [26]-[27]), knowledge or foresight does not equate to intent, and the natural and ordinary meaning of the word “intends” informs the way in which the complementary protection regime of the Act is to be interpreted. Accordingly, it cannot not be said that anything about the subsequent decision in SZTAL affects the determination that his Honour made in the present matter.

e    conclusion

26    Having found that no arguable case of error exists, it seems to me that the only appropriate exercise of discretion in the circumstances is to refuse the application for an extension of time and also refuse leave to appeal.

27    The application must be dismissed with costs.

Associate:

Dated:    13 March 2018