FEDERAL COURT OF AUSTRALIA

BKB17 v Minister for Immigration and Border Protection [2018] FCA 756

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s 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)

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”): BKB17 v Minister for Immigration & Anor [2017] FCCA 2852 to dismiss an application for review of a decision of the second respondent (“IAA”) made on 6 March 2017. That decision, in turn, affirmed a decision of a delegate of the first respondent (“Minister”) to refuse the appellant a Safe Haven Enterprise (subclass 790) visa (“SHEV”).

2    The notice of appeal contains the following single ground of appeal:

The [FCCA judge] erred by failing to have regard to the fact that the appellant had specifically not agreed to the Department containing him by email.

3    On the evening before the hearing, counsel for the appellant, Ms Okereke-Fisher, sent the Court a draft amended notice of appeal and written submissions in support of the appeal. The appellant had not filed written submissions before this. As counsel for the Minister, Mr Reilly, did not object, I granted leave to the appellant to file the amended notice of appeal and written submissions by 5.00 pm today. The amended notice of appeal contains the following ground of appeal.

The primary judge erred by:

(i)    concluding that this was not a case where the failure to exercise the power under section 473DC(3) can be said to lack any evident and intelligible justification.

(ii)     failing to find that the [IAA] exercised its statutorily conferred discretion under section 473DC(3)(b) unreasonably such that its decision was unreasonable, plainly unjust and lacks any [intelligible] justification.

(iii)     failing to have regard to the fact that the appellant had specifically not agreed to the department contacting him by email.

Particulars

The Authority noted that the applicant had not attended his scheduled visa interview with the Department scheduled on 9 December 2016 or a scheduled interview on 15 December 2016. However, the Authority was satisfied that the appellant has an adequate opportunity to present his case. Consequently, the Authority was not satisfied that any interview with the applicant was required or necessary.

4    The particulars refer to para 4 of the decision record of the IAA, which states:

I note that the applicant did not attend his scheduled visa interview with the department on 9 December 2016 or a rescheduled interview on 15 December 2016. Having regard to the information already provided by the applicant in support of his claims for protection at arrival and, more recently, as part of his application for a Safe Haven Enterprise visa, I am satisfied the applicant has [sic] an adequate opportunity to present his case. Having regard to the statutory scheme and the circumstances of this case, I am not satisfied an interview with the applicant is required or necessary.

Background facts

5    The following background facts, which appear to be uncontentious, are based substantially on the Minister’s submissions.

6    The appellant is a male citizen of Sri Lanka, who arrived on Christmas Island on 9 September 2012. He applied for a SHEV on 10 May 2016 on the basis that he would be harmed by the Sri Lankan army and the Sri Lankan Criminal Investigation Department (“CID”) as his father was a member of the Liberation Tigers of Tamil Eelam (“LTTE”) between 1985 and 1987 and a “well- known” supporter of the Tamil National Alliance (“TNA”).

7    The appellant claimed that after the election in 2012 his father received threats from the opposition party who had lost. The appellant claimed his cousin was a member of the LTTE and was shot by the CID. The appellant claimed to have been beaten by members of the navy while he was fishing “for no reason except being Tamil”, once in 2009, twice in 2010 and three times in 2012. He claimed that on 28 July 2012, two CID officers came to his house asking for his father and threatened to take the appellant and his brother away. He claimed that it was these events which led the appellant to depart Sri Lanka on 20 August 2012. He claimed that since leaving Sri Lanka, CID officers had come to his house “3-4 times” and asked about him.

8    The appellant did not attend his scheduled SHEV interview on 9 December 2016 or the rescheduled interview on 15 December 2016. On 12 January 2017, the delegate refused to grant the Appellant a SHEV. The matter was referred to the IAA on the same day.

Communications with the appellant

9    In his SHEV application, the appellant specified an email address, but in answer to the question “Do you agree to the department communicating with you by fax, email or other electronic means”, he stated “No”.

10    Notwithstanding this, on 15 June 2016, IMA Protection Support wrote to the appellant at the specified email address. The FCCA judge found that the appellant replied to that email from that email address.

11    By letter dated 18 November 2016, addressed to a street address in Toongabbie, New South Wales, the Department requested the appellant’s attendance at an interview on 9 December 2016. The FCCA judge found that there was no evidence that the appellant had not received this letter.

12    On 12 December 2016, a protection visa case officer sent an email to the appellant at the specified email address, stating that the appellant’s protection visa interview had been rescheduled to 15 December 2016. On 18 January 2017, an email was sent to the appellant at the specified email address by the IAA.

IAA decision

13    The IAA was satisfied the appellant had an adequate opportunity to present his case. Having regard to the “statutory scheme” and the circumstances of the case, the IAA was not satisfied an interview with the appellant was “required or necessary.”

14    The IAA obtained an updated country information report on Sri Lanka dated 24 January 2017, as this report post-dated the delegate’s decision. The IAA was satisfied that there were exceptional circumstances to justify considering the new information.

15    The IAA accepted the appellant’s claim of harassment was consistent with country information that ordinary Tamil citizens experienced harassment and mistreatment by army officers during the civil war and after it ended. The IAA also accepted that the appellant may have experienced harassment by the navy for being a Tamil. However, as the appellant did not claim in connection with these events that he was ever arrested, interrogated or detained by the navy, or claim to suffer any injuries as a result of the beatings, the IAA did not consider that this amounted to serious harm. Further, given the appellant and his father continued to fish for a number of years despite harassment, the IAA considered the harassment they experienced occurred “irregularly” and there was no information before it to indicate the treatment caused injury or affected the appellant’s income such that he could not subsist. Accordingly, the IAA was not satisfied the harassment caused serious harm to the appellant, nor was it satisfied that if the appellant were to resume fishing on return to Sri Lanka, that such treatment would amount to serious harm. Based on the country information and personal information of the appellant, the IAA was not satisfied the appellant faced a real chance of serious harm from authorities on the basis of his Tamil ethnicity or because he originated from Trincomalee in Sri Lanka’s Eastern Province.

16    The IAA considered the appellant’s claims, made at the arrival interview, that CID officers had arrested his uncle and shot his cousin, the latter having been a member of the LTTE. However, as the appellant only put forward these claims “in general terms” there was no information to indicate that there was a connection between them and the appellant’s claims for protection. Accordingly, the IAA was not satisfied the shooting of the appellant’s cousin, or his uncle’s arrest gave rise to a real chance of serious harm to the appellant.

17    On the basis of identified inconsistencies between the claims in the appellant’s SHEV application and arrival interview, the IAA did not accept that the appellant’s father was a wealthy and prominent supporter of the TNA. In this regard, the IAA observed the appellant had made no mention of his father supporting the TNA in his arrival interview. The IAA did not accept this inconsistency was the result of the appellant not having an interpreter when completing the SHEV application as the appellant had declared that the information in the application was read back to him in his own language.

18    The IAA considered that it was “implausible” that CID officers attended the appellant’s house on 28 July 2012 for the purpose of investigating ex-LTTE officers, particularly in light of the lack of previous interest in the appellant’s father since their return from Tamil Nadu. Having regard to the profile of the appellant and his father, and in the absence of other credible information to indicate that the CID considered the appellant and/or his father to be persons of interest, the IAA was not satisfied that the visit by CID officers to the appellant’s home on 28 July 2012 occurred as the appellant claimed. For the same reasons, the IAA was also not satisfied that the CID visited the appellant’s home “3-4” times.

19    The IAA also observed that as part of the SHEV application, the appellant had raised a concern about the treatment of his cousin’s husband, who was arrested and imprisoned for 19 months due to his support of the TNA. However, in the absence of any other information before it to indicate a connection between the cousin’s husband’s activities and the appellant, the IAA was not satisfied a nexus between his activities and the appellant existed.

20    The IAA accepted the appellant departed Sri Lanka illegally and would be identified upon return as a failed asylum seeker. It referred to country information in relation to the treatment of returned asylum seekers and was not of the view that a short period of detention would amount to serious harm. Further, the IAA was not satisfied that a fine imposed as a penalty on a guilty plea would give rise to serious harm. The IAA concluded the appellant would not face a real chance of serious harm on the basis of being a returned asylum seeker and/or for his illegal departure from Sri Lanka. The IAA therefore concluded that he did not meet s 36(2)(a) of the Migration Act 1958 (Cth) (“Act”).

21    Regarding the appellant’s complementary protection claim, on the basis of its earlier findings, the IAA also found there was no real risk of significant harm, and nor was there any suggestion that the appellant faced the death penalty for any reason. While the IAA accepted that conditions experienced by detainees in Sri Lanka were poor, it noted this was due to limited resources rather than an intention by the state to inflict pain and suffering and degrading treatment. Further, the IAA noted the evidence did not indicate that fines were imposed in a manner intended to inflict pain and suffering or cause extreme humiliation. For these reasons, the IAA was not satisfied the appellant met the complementary protection criterion in s 36(2)(aa) of the Act.

22    Accordingly the IAA affirmed the delegate’s decision.

FCCA judgment

23    The appellant was legally represented at the FCCA hearing on 21 November 2017. The appellant’s amended application to the FCCA, also dated 21 November 2017, contained the following single ground of review:

The IAA has made a decision so unreasonable that no decision maker would have made it.

Particulars

By concluding, at paragraph [4] of the decision, that the Applicant “had an adequate opportunity to present his case” and that “having regard to the statutory scheme and the circumstances of this case, I am not satisfied an interview with the applicant is required or necessary”, the Assessor made a decision so unreasonable that no reasonable decision maker would have made it.

24    The appellant did not give evidence to the FCCA concerning the reasons why he did not attend his scheduled SHEV interviews on either 9 December 2016 or 15 December 2016. Further, he did not give any evidence about anything that he might have been able to say at either of those interviews that might have affected the IAA’s decision.

25    At [20] of his Honour’s reasons, the FCCA judge identified the argument made on the appellant’s behalf, namely, that the IAA’s decision not to exercise its power under s 473DC(3) was legally unreasonable in the circumstances.

26    Section 473DC of the Act provides:

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment 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.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

27    The FCCA judge stated, relevantly, at [20]-[23] of his Honour’s reasons:

[20]    … Mr Bodisco contended that the applicant had not received one of the communications sent by the delegate providing the applicant with an opportunity to attend an interview. Mr Bodisco argued that the invitation to the second rescheduled interview was sent by email and that the applicant had not ticked that as a means by which the applicant wished to receive communication. The court book includes material sent by the delegate to that email address, inviting the applicant to provide a statement of claim. The applicant responded to that invitation from the email address. There is no evidence before the Court that the applicant did not receive the emailed second invitation. Further, on the face of the material before the Court, the first invitation was sent to an address to which there is no issue the applicant received that first invitation.

[21]    Mr Bodisco sought to argue that there was a reference to medical material that suggested there must have been some medical incapacity for the applicant in respect of an inability to attend the first interview. There is no medical material that has been provided to support such a contention. … [T]his is not a case where the failure to exercise the power under s 473DC(3) can be said to lack an evident and intelligible justification. The decision of the Authority not to invite the applicant to an interview in circumstances where the applicant had had two opportunities to do so cannot be said to be illogical, irrational, or unreasonable.

[22]    The Court does not accept on the evidence that the applicant did not receive both invitations to attend the interview. The Court does not accept that the applicant was suffering from a medical incapacity that prevented his attendance at either interview. In the present case, there is no request to the Authority to exercise any power under s 473DC or any provision of new information in response to the invitation that was sent on 18 January 2017 identifying new information or putting submissions as to why material should be received as new information.

[23]    The Authority’s decision not to invite the applicant to attend an interview was not legally unreasonable.

28    The Minister’s submissions noted that, since the FCCA judge’s decision, it has been held in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [68]-[78] that arguments as to the IAA acting in a way that is legally unreasonable must be considered in the context of Pt 7AA of the Act. As pointed out in DGZ16 at [69] and [75], s 473DB(1) directs the IAA, subject to the provisions of Pt 7AA, to review the delegate’s decision without accepting or requesting new information and without interviewing the appellant.

29    In that context, the Minister argued, there can be no legal unreasonableness in the IAA not holding an interview, especially as it was not requested to do so and as the appellant had not sought to provide any new information to it. The Minister submitted that no unreasonable exercise of the discretion in s 473DC(3) is revealed, pointing to Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21], [68], [73]-[74].

Appeal to this Court

30    The Minister submitted that there is no evidence that the appellant did not receive the invitation to attend the rescheduled interview in December 2016, and the appellant did not make a submission to the IAA that it should hold an interview with the appellant for any reason. In those circumstances, no unreasonable exercise of the discretion in s 473DC(3) by the IAA is established. Further, the Minister submitted, even if the delegate had not complied with s 56 of the Act, this would not render the IAA’s decision invalid: Plaintiff M174/2016 at [46], [51]-[52].

31    I accept these submissions.

32    In the written submissions on behalf of the appellant and in the oral submissions today, it was put that the IAA had failed to consider the circumstances that led to the appellant missing the aforementioned interviews, but there is no evidence that the IAA was provided with any information about those circumstances nor, as I have said above, was any evidence given to the FCCA about why the appellant had missed the interviews.

33    Ms Okereke-Fisher submitted that the IAA’s decision record evinced a substantial lack of information and manifested gaping holes in the appellant’s protection claims which could easily have been filled in the course of an interview. I do not agree. It is a matter of speculation whether the appellant could have said anything that would have added to his protection claims.

34    The appellant submitted that the decision of the IAA not to grant an interview to the appellant was fatal to critical claims of protection put forward to the appellant. Again, I reject that submission. There is no evidence that the appellant had anything more to say that would have supported his claims of protection.

35    The appellant submitted the fact that the statement that the appellant had made a statement four years ago should have heightened the need to grant the appellant an interview. I do not agree with that submission either in the absence of any reason why any fact might have emerged between the date of making the statement and the IAA’s consideration of the appellant’s protections claim.

36    Accordingly, I am not satisfied that there is any basis for the submission made on behalf of the appellant that he did not have an adequate opportunity to put forward his case. For these reasons the appeal must be dismissed and costs should follow the event.

37    However, I do note that it is inexplicable on the material before me the Department and the IAA sought to communicate with the appellant by the email address, after specifically asking whether he agreed to that mode of communication and receiving the answer “no”. However, the mere fact that the appellant had said “no” to that mode of communication did not render the IAA’s decision not to invite the appellant to an interview legally unreasonable.

38    Accordingly the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    25 May 2018