FEDERAL COURT OF AUSTRALIA

CLL16 v Minister for Immigration and Border Protection [2018] FCA 348

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application to quash the decision of the Immigration Assessment Authority (“the Authority”) affirming a decision of the delegate not to grant the appellant a protection visa.

2    The appellant is a citizen of Sri Lanka, who arrived in Australia as an unauthorised maritime arrival in 2012. In 2015, the appellant was invited to, and made, an application for a Safe Haven Enterprise Visa which was reviewed under the fast track review process in Part 7AA of the Migration Act 1958 (Cth) (“the Act”).

3    The appellant, who is of Tamil ethnicity from Batticaloa, Sri Lanka, claimed to fear harm from the Karuna Group and the Sri Lankan Freedom Party by reason of his Tamil ethnicity, his imputed political opinion as pro-Tamil National Alliance (“TNA”) and pro-Liberation Tigers of Tamil Eelam, and his membership of a particular social group, being “failed asylum seekers”, “Sri Lankans who did not pay extortion money to the Karuna Group” and “Tamils with perceived wealth”. In summary, the delegate accepted that the appellant had been targeted, harmed, extorted and abducted by members of the Karuna group between 2008 and 2012 but the delegate did not accept the appellant’s claim that in 2015, members of his family had been questioned, threatened and beaten by members of the Karuna group on several occasions or his claim that the Karuna group continued to have an interest in him after he left in 2012. The delegate also accepted that the appellant had supported a TNA politician in part to seek the protection and assistance of a local politician. However, the delegate was not satisfied that the appellant faces a real chance of suffering serious harm in the reasonably foreseeable future if returned to Sri Lanka either from the Karuna Group (due to its declining power and significance), on account of his support for the TNA (as it now has significant support as a party in Sri Lanka), his ethnicity or his imputed pro- Liberation Tigers of Tamil Eelam (“LTTE”) opinion. The delegate also considered that the appellant would not be at risk as a failed asylum seeker or because of his wealth. The delegate accepted that the appellant might be briefly detained and fined as a result of leaving Sri Lanka illegally, but considered that the short period of detention did not constitute significant harm for the purposes of complementary protection.

4    The Authority was similarly not satisfied that the appellant faces a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil ethnicity, any related particular social group, any political opinion, any actual or imputed connection to the LTTE, as a failed asylum seeker, or as someone who left Sri Lanka illegally. The Authority was also not satisfied that there was a real chance the appellant would be persecuted outside his home area in the east of Sri Lanka by members of the Karuna group but the Authority was prepared to accept that the appellant’s family members were targeted by the Karuna group after the appellant’s departure and satisfied that if the appellant returned to his home area there was more than a remote chance that he would be targeted amounting to serious harm by members of the Karuna Group. The Authority concluded that it would be reasonable for the appellant to relocate to an area outside of his home area where there will not be a real risk that he will suffer significant harm, such as Colombo.

5    The appellant applied for judicial review of the Authority’s decision by the FCC. One of the grounds of the application for review was that “the Authority breached s 473DC of the Act in failing to put the new information regarding relocation to the [appellant] for comment”. The FCC rejected that ground, holding that the Authority did not take into account new information that enlivened an obligation under s 473DE of the Act as:

(a)    the information referred to by the Authority in relation to its decision concerning relocation was information that was before the delegate;

(b)    further, the issue of relocation was raised by the delegate with the appellant at the time of the interview; and

(c)    the appellant in response to the letter from the Authority identifying the nature of the review and the information that could be provided put submissions that relevantly asserted that there was no place he could hide in Sri Lanka.

6    The other ground was that the Authority erred in failing to consider all the integers of the claims in relation to the appellant’s membership of a particular social group. The FCC also rejected this ground, holding that the Authority had addressed the social groups of the appellant, and there was no integer of the appellant’s claims that was not addressed by the Authority.

7    The notice of appeal raises these same grounds.

Ground 1

8    Ground 1 must be considered in the context of the particular statutory framework of Part 7AA of the Act. Section 473DA(1) in Part 7AA provides:

Exhaustive statement of natural justice hearing rule

             (1)  This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

             (2)  To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

9    The effect of s 473DA(1) of the Act is that rules of procedural fairness do not apply to the Authority, save to the extent provided for in Part 7AA. By s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant. By s 473DC(1) the Authority may, in relation to a fast track decision, get any documents or information (new information) that was not before the Minister when the Minister made the decision under section 65 of the Act, which the Authority considers may be relevant. However, s 473DC(2) provides that 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.

10    In Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 169 (“CRY16”) the Full Court accepted that no duty is imposed on the Authority to consider the exercise of the discretionary power under s 473DC(3), but held that a failure to exercise that power may give rise to jurisdictional error for legal unreasonableness. In that case, the delegate accepted certain basic aspects of the respondent’s claims: that he was born in Tripoli, that he is a Sunni Muslim and that he had been issued with a Lebanese passport which he used to leave his home country. However, the delegate rejected the respondent’s claims for protection. The delegate found that the respondent was not “a credible witness”. The delegate found that the respondent would not face a real chance of persecution or real risk of significant harm upon return to Lebanon. The Authority affirmed the decision but on a different basis. The Authority found the respondent’s fear of harm from sectarian violence did not relate to all areas of Lebanon and that he could relocate to Beirut where he would not face a real chance of persecution for any reason recognised under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (cf s 5J(1)(c) of the Act). This meant that the respondent was not a refugee: s 5H(1) of the Act. Similarly, in relation to the respondent’s claims for complementary protection, the Authority found that, as a Sunni, the respondent faced a real risk of significant harm in his place of habitual residence but that the real chance of harm did not extend to all areas of Lebanon, namely to Beirut. The Authority held that he could reasonably relocate to Beirut where he would not face a real risk that he will suffer significant harm. On appeal, it was held that the Authority had acted unreasonably in not considering exercising its statutory powers under Pt 7AA of the Act to give the respondent an effective opportunity to address the issue of relocation that the Authority found dispositive, in circumstances where the delegate had not considered the issue of relocation. It was held that it was legally unreasonable not to consider getting documents or information from the respondent in the circumstances where the question of relocation in each case must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [24]. In that case, there was nothing in the interview with the delegate that concerned the question of relocation and the Authority knew or must be taken to have known that the question of relocation had not been considered by the delegate; and the Authority must also have been taken to have known that the question of relocation depended on the particular circumstances of the respondent.

11    This case is distinguishable from CRY16. In this case, the appellant was clearly aware prior to the interview with the delegate that the question of relocation may arise and he addressed this in his initial statement setting out why relocation to another part of Sri Lanka was not a reasonable option. Moreover, paragraphs [75] and [76] of the Authority’s reasons state that the delegate discussed the issue of relocation with the appellant and whether he could relocate to Colombo. The reasons state:

The delegate discussed the issue of relocation with the applicant and whether he could relocate to Colombo. The applicant has lived in Colombo before (having studied there). He has also worked abroad suggesting he has the ability to adapt to new areas. He has a good level of education and work experience. And as a young male, he can work and support himself for a good deal of time. He agreed there was no problem earning or working, the problem was there was no guarantee of safety.

He was asked whether there was any reason he could not relocate elsewhere in Sri Lanka. The applicant said that he respects the rights of the Tamils, if he goes to another area, the question is whether he would get all the rights of Tamils. The other issue was that he would continue to be at risk because of the reasons he fears harm in his home area.

12    In the circumstances there was no legal unreasonableness in failing to consider the exercise of the discretionary power under s 473DC(3) of the Act, where the question of relocation had been addressed by the delegate.

13    The FCC was correct to hold that there was no breach of s 473DC and no jurisdictional error as alleged in ground 1 made out.

14    Ground 2 is that the FCC erred in not finding that the Authority failed to consider one of the integers of the appellant’s claim in relation to his membership of a particular social group. The ground did not particularise the integer of the claim that was alleged not to have been considered by the Authority. In the course of oral submissions, the appellant identified that it was his position as that of a failed asylum seeker and his illegal departure from Sri Lanka. The reasons of the Authority disclose, however, that the Authority did consider those integers of the appellant’s claim, relevantly at paragraphs [47] through to [62], and [67] through to [69]. Those reasons also disclose that the Authority did fully consider his claims as a failed asylum seeker and illegal returnee. It is not apparent that the Authority overlooked any other integer of the appellant’s claims. There is no substance in this appeal ground either.

15    Accordingly the appeal must be dismissed.

Associate:

Dated:    16 February 2018