FEDERAL COURT OF AUSTRALIA

CBA16 v Minister for Immigration and Border Protection [2018] FCA 1043

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The appellant appeals from orders made in the Federal Circuit Court of Australia (Federal Circuit Court) on 15 February 2017 dismissing his application for judicial review of a decision made by the second respondent (Authority) on 23 June 2016: see CBA16 v Minister for Immigration [2017] FCCA 248 (CBA16). In its decision the Authority affirmed the decision of a delegate of the first respondent (Minister) not to grant the appellant a Safe Haven Enterprise visa (Visa).

2    For the reasons that follow the appeal should be dismissed.

background

3    The appellant is a citizen of Sri Lanka. On 26 August 2012 he arrived in Australia on Christmas Island as an unauthorised maritime arrival.

4    On 16 October 2015 the appellant lodged his application for the Visa. The appellant’s claims were set out in a statutory declaration annexed to his Visa application. In summary, the appellant claims that:

(1)    he is a Tamil and a Christian who was born in Batticaloa. His mother is from Batticaloa while his father is from Jaffna. He has lived in both Batticaloa and Jaffna and moved between both districts because he was at risk of being harmed due to suspicions he was a member of the Liberation Tamil Tigers Eelam (LTTE);

(2)    towards the end of 2003 the appellant was involved in a collision while riding his motorbike. The appellant was injured in the accident and his passenger was killed. Once he recovered from the accident, the appellant learnt that the other vehicle involved in the collision belonged to one of the Tamil paramilitary groups. He claimed to have been threatened two or three times by members of the Tamil paramilitary group who feared that he may take further action;

(3)    because of those threats the appellant fled to Jaffna to stay at his parent’s home. The appellant had a national identity card which stated that he was born in Batticaloa. Unlike the rest of his family, he did not have an army card which was issued to all his family members residing in Jaffna. The appellant claimed he was frequently targeted by the Sri Lankan army because of this. He said that on several occasions he was forcibly taken to army camps where he was beaten with guns while being interrogated. The appellant claimed that his interrogators suspected he was a LTTE cadre because he did not reside in Jaffna between 1995 and 2003 after which time he re-emerged there;

(4)    in February 2008 the appellant fled Sri Lanka on an employment visa to Qatar where he remained until September 2009;

(5)    upon his return to Sri Lanka the appellant was interrogated by Criminal Investigation Department officers for two to three hours before being released because they suspected he was a LTTE member;

(6)    the appellant returned to his parent’s house in Jaffna. There he claimed that he continued to be treated harshly by the Sri Lankan army, who remained suspicious of him because he carried a national identity card which said he was born and residing in Batticaloa;

(7)    on 19 January 2011 the appellant married and moved to live with his wife in Meesalai village in Jaffna. He claimed to have been targeted several times by the Sri Lankan army as he frequently travelled for his church related work as an assistant pastor attached to the Victory Life Church;

(8)    although he was not physically assaulted by the army, the appellant claimed to live in constant fear in Meesalai village because the authorities are known to harm innocent Tamils who they suspect are involved with the LTTE; and

(9)    for that reason the appellant decided to leave Sri Lanka in August 2012.

5    The appellant attended an interview with a delegate of the Minister on 13 January 2016 and was assisted by two Tamil interpreters by telephone. On 3 May 2016 the delegate refused the appellant’s application for the Visa.

6    Following the delegate’s refusal of the Visa, the appellant was referred to the Authority for review under Pt 7AA of the Migration Act 1958 (Cth) (Act).

7    On 23 June 2016 the Authority affirmed the delegate’s decision.

the authority’s decision

8    The appellant provided a statutory declaration made on 28 May 2016 (Statutory Declaration) to the Authority in which, under the heading “Information for the [Authority] to consider”, he raised two matters: first, at [1]-[7] “Interpreting issues during interview”; and secondly, at [8]-[11] “Additional/new information”. The interpreting issues concerned alleged difficulty in understanding the Tamil that was spoken by the second interpreter who assisted by telephone at the interview conducted by the delegate. The additional/new information concerned the appellant’s claim that his family was “considered an ‘LTTE family’”.

9    In its decision the Authority first referred to the Statutory Declaration.

10    In relation to the interpretation issues raised in it, the Authority noted that the appellant’s Visa interview lasted for just under two and a half hours; that telephone interpreting in Tamil was used; and that the first telephone interpreter assisted for about the first hour of the interview and the second telephone interpreter assisted for the remainder. The Authority listened to the audio recording of the interview with the delegate and, as a result, observed that:

    at the commencement of the interview the delegate informed the appellant that if he did not understand the interpreter or thought that he was not being understood by the interpreter he should let the delegate know;

    when the second interpreter took over from the first interpreter, the delegate again expressly asked the appellant whether he understood the new interpreter to which the appellant responded that he did;

    the delegate again said that if the appellant did not understand the interpreter or if he had difficulties hearing him because of the use of the telephone he should let him know;

    the appellant did not raise any interpreting issues with the delegate at the interview;

    there had been a three month period between the date of the interview and the date on which the delegate made his decision; and

    even if the appellant felt unable to fully present his claims at the interview, he had a little over three months in which to communicate this to the delegate but did not do so.

11    The Authority concluded that, in light of the conduct of the interview and the time between the interview and the date on which the delegate made its decision, the appellant had ample opportunity to raise any interpreting issues and it did not accept that the interpreter prevented him from presenting his claims.

12    In relation to the second category of material included in the Statutory Declaration, namely, his claim that his family was considered a LTTE family, the Authority considered that this was new information within the meaning of s 473DC of the Act. The Authority was not satisfied that there were exceptional circumstances to justify considering the new information, nor was it satisfied that the new information could not have been provided to the delegate before he made his decision under s 65 of the Act. Accordingly, the Authority did not consider that information in its decision.

13    The Authority then turned to consider the appellant’s claims. It:

(1)    found that the evidence strongly indicated that any interest that the Tamil paramilitary group may have had in him as a result of the accident, which took place in 2003, would have completely dissipated;

(2)    did not consider that the appellant was at any risk of serious harm from the Eelam People’s Democratic Party (EPDP), a claim raised at the interview with the delegate, and that the problems that he described amounted to no more than low level harassment and not serious harm;

(3)    accepted that the appellant was subjected to routine inspections when travelling on the roads in Jaffna, as were other travellers at the time;

(4)    accepted that the appellant may have been detained by the Sri Lankan army and taken to their camp but noted that the fact that he was detained and released without any further issue strongly indicated that the Sri Lankan authorities had no ongoing interest in him;

(5)    noted that the appellant used his Sri Lankan passport to travel to Qatar in 2008, returning the following year. The Authority accepted that the appellant may have been detained and questioned at the airport upon his return in 2009 but found the fact he was able to depart again and travel to India in 2009 and 2010 without any hindrance, apart from questions about the purpose of his visit, indicated that the authorities had no ongoing interest in him;

(6)    rejected the appellant’s claim that because he was a Tamil male he would be imputed with LTTE connections and face harm. It found that there was no evidence that the appellant had engaged in any Tamil separatist activity in Sri Lanka, or since he has left Sri Lanka, or that he has any real or imputed links to the LTTE, such that his profile would fall within any of the acknowledged categories of persons of interest to the authorities; and

(7)    considered the appellant’s claim to fear harm as a failed asylum seeker who left Sri Lanka illegally. The Authority concluded that the appellant may be subjected to interrogation and questioning by authorities on his return to Sri Lanka but found it is most likely he would be issued with a fine and released or, if he pleads not guilty, released on his own personal surety. The Authority found that the fact that the appellant would be detained for several hours at the airport upon his arrival and potentially detained on remand for a number of days pending bail did not amount to significant harm as the investigation of the appellant and his subsequent detention would be for the purpose of establishing his identity, obtaining security clearance and then waiting for a magistrate to authorise his release and for his bail to be processed. The Authority was not satisfied that the appellant faces a real chance of serious harm due to his illegal departure should he return to Sri Lanka now or in the reasonably foreseeable future. In any event, the Authority found that Sri Lanka’s Immigrants and Emigrants Act 1949 is a law of general application and the evidence establishes that the law is not selectively enforced or applied in a discriminatory manner.

14    The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and did not meet the requirements of s 36(2)(a) of the Act. The Authority also considered whether the appellant met the criterion in s 36(2)(aa) of the Act and concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that the appellant would suffer significant harm.

Proceeding in the Federal Circuit Court

15    The appellant applied for judicial review of the Authority’s decision in the Federal Circuit Court. In his application filed on 28 July 2016 he raised three grounds (as written):

1.    Identifying a wrong issue.

2.    asking wrong questions.

3.    Incorrect interpretation.

16    The primary judge dismissed the appellant’s application.

17    The primary judge found that the Authority expressly considered whether the appellant was given a proper opportunity to raise his claims and evidence and was not satisfied that there was any material error in the interpretation of the appellant’s claims and evidence given to the delegate. His Honour was satisfied that the appellant had a real and meaningful opportunity to present his claims and evidence to the delegate: CBA16 at [31]-[32].

18    The primary judge was also satisfied that the Authority had complied with its statutory obligations under Pt 7AA of the Act: CBA16 at [32].

19    The primary judge noted that the grounds raised by the appellant in his application for review were of a generalised nature and failed to identify any jurisdictional error in the Authority’s decision. His Honour found that the Authority addressed the “legal issues” in relation to the appellant’s application and that there was no material before him to support the proposition that it had asked itself the wrong questions in the review: CBA16 at [34].

20    The primary judge also considered the submissions made by the appellant from the bar table and found that they were an invitation to the court to engage in merits review, which it could not do: CBA16 at [35].

the appeal

21    On 13 March 2017 the appellant filed an application for an extension of time to appeal the decision of the Federal Circuit Court and an affidavit in support which in turn annexed a draft notice of appeal.

22    On 22 February 2018 the Court made orders by consent, including an order extending the time for filing and serving the notice of appeal to 13 March 2018.

23    The appellant’s notice of appeal raises a single ground of appeal (as written):

The Federal Circuit court failed to find, in respect of the IAA (Respondent) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application.

I have no lawyer to represent me in this court as I am unemployed and I have no money to pay for legal representation.

24    The appellant did not file any written submissions. At the hearing he made oral submissions. The appellant submitted that his application for the Visa had been refused by the delegate and the Authority and that his application for judicial review had been refused by the Federal Circuit Court “very quickly”. It was not clear to him why he had been rejected as a refugee. The appellant then made a number of submissions about aspects of the substance of his claims to support his Visa application. He also submitted that he was unable to understand the second interpreter who assisted at the interview with the delegate. As he was not legally represented and had no assistance with transcribing the recordings, the appellant said that he was unable to provide further evidence in relation to the alleged errors.

25    The appellant’s ground of appeal alleges that the Authority declined to exercise its jurisdiction. But that is clearly not the case. The Authority considered the delegate’s decision as it was required to do pursuant to Pt 7AA of the Act. It did not decline to exercise its jurisdiction.

26    The grounds raised before the primary judge were not particularised and, on their face, do not reveal any jurisdictional error. There is no error in the decision of the primary judge in rejecting those grounds. Insofar as the appellant alleged that there were interpretation errors, he provided no evidence of the alleged errors to support that ground.

27    The appellant’s oral submissions did not assist in elucidating the ground of appeal. As I have observed, they raised matters that went to the substance of his claims for the Visa and did not identify any appellable error in the decision of the primary judge. The matters raised by his submissions are not matters which are open to consideration by this Court.

28    During the hearing I raised an issue with the Minister’s counsel about the nature of the information provided in the Statutory Declaration in relation to the alleged interpretation issues that arose in the interview with the delegate. In particular, I queried whether the allegation of misinterpretation was “new information” within the meaning of s 473DC of the Act or, perhaps more precisely, the information was such that the Authority needed to consider if it was “new information” under s 473DC. The Minister submitted that it was not new information but rather that the “interpreting issues” raised by the appellant were in the nature of a submission made by him to the Authority about what occurred before the delegate.

29    The term “new information” is defined in s 473DC(1) of the Act as any documents or information that were not before the Minister when the Minister made the decision under s 65 of the Act and that the Authority considers may be relevant. In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16 (M174/2016) at [24] Gageler, Keane, Nettle JJ said:

The term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE as limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

(footnote omitted)

Also of relevance to the issue identified is the decision in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80. In that case a Full Court of this Court (Flick, Griffiths and Perry JJ) considered two questions, one of which was whether, and in what circumstances, the Authority can receive submissions. In considering that issue at [50] and [54] the Full Court relevantly said:

50     It is concluded that a “submission” which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither:

•    a “document”; nor

•     “information”

for the purposes of the definition of “new information” as set forth in s 473DC.

….

54     The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority – and to have the Authority in fact consider – a submission directed to an established pool of factual information.

(emphasis omitted)

30    I do not accept the Minister’s submission that the content of [1]-[7] of the Statutory Declaration under the heading “Interpreting issues during interview” was a submission and not information for the purposes of the Act such that the Authority did not need to consider s 473DC and s 473DD in relation to it.

31    Those paragraphs of the Statutory Declaration were, in my opinion, information in the sense referred to in M174/2016 in that they comprised a communication of knowledge about some particular fact and/or event, namely, the appellant’s alleged difficulty understanding one of the interpreters during the interview with the delegate. Paragraphs [1]-[7] of the Statutory Declaration do not address the information already made available to the Authority or an established pool of factual information but contain additional factual information.

32    The Authority did not deal with [1]-[7] of the Statutory Declaration as information. It made no express assessment of that material against s 473DC to determine whether it was “new information” and, if so, against s 473DD to determine whether it should consider that “new information”. Rather, the Authority addressed [1]-[7] of the Statutory Declaration under the heading “Information before the IAA” in the manner summarised at [10] above. In doing so, it addressed a number of matters and concluded that the appellant was not prevented from presenting his claims by the interpreter. Thereafter the Authority had no regard to the content of [1]-[7] of the Statutory Declaration in considering the appellant’s claims for protection. That suggests that the Authority did not in fact treat [1]-[7] of the Statutory Declaration as a submission. Had the Authority taken those paragraphs to be a submission it would have referred to and considered them in the substantive part of its decision, which it did not.

33    That being so, despite the failure by the Authority to make express reference to s 473DC and s 473DD in assessing the content of [1]-[7] of the Statutory Declaration, I do not consider that there is any relevant error on the part of the Authority. It did not treat those paragraphs as a submission and the steps that the Authority took to reach its conclusion to reject them, in effect, amounted to the type of consideration that would be undertaken for the purposes of an assessment pursuant to s 473DC and s 473DD of the Act.

34    If I am wrong about that, for the same reasons there is, in any event, no practical utility in remitting the matter for reconsideration: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146 and Parmar v Minister for Immigration and Border Protection [2018] FCA 502 at [24]-[25] and the cases cited therein.

conclusion

35    For those reasons the appeal must fail.

36    I will make orders dismissing the appeal and for the appellant to pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    13 July 2018