FEDERAL COURT OF AUSTRALIA

CMR16 v Minister for Immigration and Border Protection [2018] FCA 916

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (“FCCA”) dismissing an application for review of a decision of the second respondent (“IAA”). The IAA’s decision was made on 16 August 2016, and in turn affirmed a decision of a delegate of the first respondent (“Minister”) to refuse the appellant a Safe Haven Enterprise visa (“SHEV”): CMR16 v Minister for Immigration and Border Protection [2017] FCCA 1715.

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

The [FCCA judge] committed a legal error in dismissing my case. The judge failed to consider all of the grounds that was raised and [failed] to consider arguments put forward by my representative.

Particulars

a.    Reasons for dismissing my application is yet to be published, therefore I am unable to formulate grounds of appeal.

b.    More details will be provided once reasons for dismissing my case is published that [sic]

3    The FCCA judge’s reasons were published on 2 August 2017. Despite what is said in the particulars to the notice of appeal, following the publication of the judge’s reasons, the appellant did not file written submissions, or any other document identifying any specific ground of appeal. The appellant did however file an affidavit affirmed on 18 April 2018 with four documents attached. The Minister’s written submissions stated that none of the documents were before the delegate or IAA. Accordingly, the Minister submitted the documents are not relevant to establishing jurisdictional error by the IAA (or error by the FCCA judge) and are inadmissible.

4    At the hearing of the appeal, the appellant appeared with the assistance of a Tamil interpreter.

Background facts

5    The facts and history of the matter were summarized by the FCCA judge at [2] and [3] of his Honour’s reasons as follows:

2.    The applicant is 24 year old Hindu of Tamil ethnicity and a national of Sri Lanka. On 28 August 2012, he arrived in Australia as an unlawful maritime arrival. On 20 October 2015, he lodged an application for a Safe Haven Enterprise Visa (SHEV) and attended an interview on 17 March 2016. On 10 June 2016, a delegate refused the visa. The matter was then referred to the Authority.

Applicant’s claims for protection

3.    The applicant’s claims may be summarised as follows:

a)    in 2005, when he was about 14 years old, the applicant moved to Colombo, where he worked in a jewellery shop until his departure in 2012. He returned to visit his village in 2007, and at that time his cousin (ST) was taken and detained by the authorities for approximately three years because of his alleged family connection to Kalithas (also known as Colonel Stalin), who was a commander in the LTTE. His family and ST have been blacklisted;

b)    when ST was finally released in 2010, he went to live in Colombo with the applicant;

c)    in 2011, the Tamil Makkal Viduthalai Puligal (TMVP) (a paramilitary group) came in search of the applicant, leading him to flee Sri Lanka in 2012;

d)    the applicant’s mother reported that in early 2015, people in plain clothes, who may have been police or from the Karuna group, came to his house to enquire about Kalithas, and about ST who came with him to Australia. In April 2015, four people wearing Sri Lankan Army uniforms came to his parents’ home again in search of Kalithas. The applicant believed Kalithas was killed by the Sri Lankan Army; and

e)    the applicant will be targeted because of his close connection to an LTTE official (Kalithas), the police will not protect him and no matter where he goes in Sri Lanka he is at risk of harm. The applicant did not mention these claims at the entry interview as he was afraid the Australian government would inform the Sri Lankan government.

Delegate’s decision

6    At [4] of his Honour’s reason’s, the FCCA judge summaries the reasoning and conclusions of the Minister’s delegate as follows:

a)    the delegate did not believe that Kalithas/Colonel Stalin existed, or that if he did exist, that the applicant was imputed with a political opinion/targeted because of that connection. The applicant admitted he had never spoken to Kalithas or even made his acquaintance and the delegate found his evidence was vague. There was no information through open sources which indicated the existence of Kalithas. The arrest of ST and not the applicant in 2007 suggests that the applicant was not of interest to the authorities. The applicant has never been harmed or targeted by the authorities and they had no interest in the applicant on account of his claimed relationship to Kalithas (the delegate also found that his family has not been blacklisted, as claimed);

b)    the applicant’s fear of persecution as a result of his Tamil race is not well-founded – any discrimination he might encounter would not amount to persecution;

c)    the delegate accepted that the applicant would be considered a failed asylum seeker upon return. However, any treatment he may encounter would not be discriminatory and would be as a result of laws of general application. He may be temporarily detained, fined and released, but because he has no profile, he will not suffer persecution. He did not attract obligations under the Refugee Convention; and

d)    finally, any societal discrimination on account of his race, and any remand and fine for illegal departure, would not amount to significant harm, so the applicant did not attract complementary protection obligations.

IAA process and decision

7    At [5] of his Honour’s reasons, the FCCA judge noted that, on 6 July 2016, the applicant’s representative sent five items to the IAA for its consideration. The documents included a photograph purporting to be of Colonel Stalin and three page submission, referring to the delegate’s disbelief in the existence of Kalithas/Colonel Stalin and stating, among other things that the banner in the shot showed his name and that if a short extension of time was permitted, the applicant would have the banner translated.

8    At [6] of his Honour’s reasons, the FCCA judge summarised the reasoning and conclusion of the IAA, affirming the decision under review as follows:

a)    it noted that the submission was a reiteration of protection claims addressing the delegate’s reasoning. To the extent that [t]he submission discusses information which was before the delegate and responds to the delegate’s reasoning, the information is not “new” as defined in s.473DC(1) of the Migration Act 1958 (Cth) (Migration Act) and the Authority had regard to it;

b)    in relation to the documents attached to the submission, the applicant did not explain why these could not have been provided to the delegate, why it was credible personal information which was not previously known and how it may have affected the applicant’s claims. Section 473DD(b) was not met and there were not exceptional circumstances to justify consideration of it;

c)    apart from Kalithas, nobody in the applicant’s family was an LTTE member or supporter. As the Authority did not accept that Kalithas existed, was an LTTE member, that the applicant was related to him, or that he or ST were of interest to the authorities due to a family connection to Kalithas. It accepted that ST was arrested and may have been detained for three years and that it may have been due to his imputed support of the LTTE, but not that he was required after his release in 2010 to report, or in fact reported, to the TMVP. The applicant registered his address in Colombo and so the authorities would have been able to find him - yet he experienced no problems there. He also obtained a passport legally in 2012. The applicant was not of interest to the authorities, TMVP or the Karuna group, and does not face a real chance of persecution for imputed links to the LTTE;

d)    the Authority did not accept that the applicant would be targeted/face a real chance of persecution upon return to Sri Lanka because of his Tamil ethnicity or because he is a Tamil from the east;

e)    as for his connection to ST, country information does not suggest that persons are at risk merely because they are related to another person with imputed links to the LTTE. No other family members have been questioned, detained or tortured and when the authorities came for ST, they did not take the applicant. The claim that he is at risk because of association with ST is therefore purely speculative and he does not face a real chance of persecution for this reason;

f)    as a failed asylum seeker, he would be charged and may be held for a short time on remand. He will not be subject to mistreatment during this processing and the law applied is one of general application and it is not selectively applied. Although conditions on remand may be poor, they do not rise to the level of significant or serious harm. He will be issued with a fine and released or may be released on his own personal surety. Considered individually and cumulatively, the applicant does not face a real risk of persecution; and

g)    any societal discrimination the applicant would face and/or treatment whilst being processed and on remand as an illegal departee/failed asylum seeker, including poor prison conditions, would not amount to significant harm.

FCCA proceeding

9    The appellant raised four grounds of review in his application to the FCCA for judicial review of the IAA’s decision.

Ground 1

10    The appellant’s first ground of review was:

To the extent the Authority declined to consider information and submissions by the Applicant's representatives, it fell into jurisdictional error in failing to provide procedural fairness and/or to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [5] - [6]).

Particulars

1.1     The Authority failed to take into account the information provided and the relevant country information.

1.2     The Authority failed to properly classify that the information was new information;

1.3     The Authority failed to consider whether the section s 473DD was applicable in the circumstances.

1.4     The Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test).

1.5     The Authority committed jurisdictional error.

11    Section 473DD of the Migration Act 1958 (Cth) (“Act”) provides:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

12    The FCCA judge addressed ground 1 at [18] and [19] of his Honour’s reasons. At [18], his Honour concluded that ground 1 was misconceived to the extent that it alleged a denial of procedural fairness because the relevant obligation on the IAA was to follow the requirements of s 473DD.

13    The FCCA judge noted that the IAA had regard to the content of the three page submission, as it was not “new” information. His Honour observed that, in respect of the other documents, the IAA was not satisfied that any of the s 473DD criteria had been met. The FCCA judge concluded that, given the nature of the documents (being a photograph; documents dated 2007 relating to his cousin; and an identity card), the findings with respect to s 473DD were open to the IAA. Nor, his Honour found, was the IAA required to give more time for the wording of the photograph to be translated, given it did not consider that the requirements of s 473DD were met in relation to it.

14    Accordingly, the FCCA judge concluded that ground 1 failed.

Ground 2

15    The appellant’s second ground of review was:

The Authority denied the Applicant procedural fairness/ failed to carry out its [duty] in relation to his application for review in circumstances it was under duty to make further enquiries to ensure that the Applicant could participate in the review process.

Particulars

2.1     The [Authority] did not make proper enquiries regarding Colonel Stalin which was a critical aspect of the claim.

2.2     It was reasonably easy for the Authority to obtain the details from Tamil organisations within Australia.

2.3     The Authority's process of review resulted in the Authority not carrying its task properly when it has duty to inquire should itself properly informed itself by making proper enquiries to ensure procedural fairness;

2.4     The Authority committed jurisdictional error.

16    At [20] of his Honour’s reasons, the FCCA judge found that ground 2 was misconceived, saying:

It asserts a duty to make enquiries "to ensure the applicant could participate in the review process". There is no such duty in Division 3 of Part 7AA and s.473DA makes clear that that Division is an exhaustive statement of the natural justice hearing rule. Section 473DB provides that the Authority can make a decision without accepting or requesting any new information and without interviewing the applicant, and can make its decision at any time after referral. Section 473DC provides that the Authority has no duty to obtain any new information. In the present case, the Authority did not err in failing to invite the applicant to a hearing or in taking no steps to obtain new information.

Ground 3

17    The appellant’s third ground of review was:

The Authority fell into jurisdictional error in failing to give consideration to the Applicant's claims regarding the Applicant's ability to subsist upon return from Australia. The Authority misconstrued and/or misapplied the test under s 5J of the Act and / or s 91 R of the Act.

Particulars

3.1     The Authority did not give consideration to the Applicant's ability to return to any occupation to subsist in Sri Lanka as he would be denied rights to subsistence.

3.2     The Authority committed jurisdictional error.

18    At [14] of his Honour’s reasons, the FCCA judge found that ground 3 failed “at a factual level given the lack of any evidence that the claim referred to by the applicant was ever made”. The FCCA also expressed the view that, from the available material, the IAA considered those claims that the applicant did make consistently with the requirements of the Act.

Ground 4

19    The appellant’s fourth ground of review was:

The Authority fell into jurisdictional error in dealing with the Applicant's bail. The Applicant would be charged under I & E Act for illegal departure. The Authority has not considered whether the Applicant would get bail. The Authority did not provide applicant opportunity to be heard on this issue. The Authority thereby denied the Applicant procedural fairness.

Particulars

4.1     The Authority did not ask the correct questions regarding the handling of bail

4.2     The Authority failed to address whether the Applicant would meet bail. The Authority denied the Applicant procedural fairness in respect of findings concerning bail.

4.3     The Authority committed jurisdictional error.

20    The FCCA judge addressed this ground of review at [15], [16] and [22] of his Honour’s reasons. His Honour concluded:

15. Ground 4 on its face raises contentions in relation to the applicant’s eligibility for bail on the assumption that he would be charged with a breach of the Sri Lankan Immigrants and Emigrants Act. It is true that the Authority proceeded on the basis that the applicant would be arrested and charged with a breach of that Act. At [59] of its reasons the Authority noted, on the basis of information from the Department of Foreign Affairs and Trade, that bail would only be an issue if the applicant pleaded not guilty in respect of an asserted breach of that Act.

16.    The applicant in his oral submissions appeared to contend that he would be in a different position because of problems involving his cousin, known as ST in the Authority decision, prior to them both leaving Sri Lanka. However, it is plain from the Authority decision that the claims in relation to ST were not accepted by the Authority.

…

22.    Ground 4 and its particulars take issue with the finding that the applicant would “meet bail”. The applicant asserts that he was denied procedural fairness in this regard and that the Authority “did not ask the correct questions regarding the handling of bail”. There was no obligation on the Authority to afford the applicant procedural fairness by way of hearing or invitation to comment. Further the ground relies on a false factual premise, namely that the Authority found he would “meet bail”. In fact it did not make any such finding, but rather at [59] the Authority found that the applicant “would be issued a fine and be released or, if he pleads not guilty, he will be released on his own personal surety”. Ground 4 also fails.

Appeal to this Court

21    The Minister submitted that the FCCA judge addressed the appellant’s grounds of review correctly and there is no basis for the contention that his Honour committed any legal error. In particular, the Minister submitted, there is no basis for the contention that the FCCA judge “failed to consider all of the grounds that was raised and [failed] to consider arguments put forward by [the appellant’s] representative”. The FCCA judge’s reasons record that the appellant appeared in person at the hearing of the FCCA and (at [10]) that only the Minister prepared written submissions.

Appellant’s submissions

22    At the hearing, the appellant did not point to any error in the reasoning of the FCCA judge.

23    Rather, he submitted that his “brother” has been granted a protection visa, and that he was therefore under the impression that he would also be granted a visa. The appellant subsequently clarified that by “his brother” he meant his cousin, “ST”.

24    The appellant also submitted that his youngest brother was in hiding in Sri Lanka, having suffered violence at the hands of Sri Lankan authorities. In support of this submission, the appellant pointed to the documents annexed to his affidavit affirmed on 18 April 2018. These included a police report regarding this incident, an image of a policeman on a motorcycle outside the family’s home, images of the youngest brother lying injured in hospital and a Sri Lankan surgeon’s report concerning the brother’s treatment. The appellant admitted that these documents were not before the delegate, IAA or FCCA.

Consideration

25    The documents submitted by the appellant to this Court are not relevant to the question for decision, which is whether the FCCA judge made an appellable error in dismissing the appellant’s application for judicial review of the IAA’s decision.

26    Accordingly, I cannot take them into account in considering the appeal.

27    The appellant did not identify any appellable error by the FCCA judge. Having considered the reasons of the FCCA judge, I do not see any basis for thinking that there was any appellable error.

28    Accordingly, the appeal should be dismissed. Costs should follow the event.

Associate:

Dated:    19 June 2018