AFH18 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 713

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AFH18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 713   

File number:	MLG 113 of 2018
Judgment of:	JUDGE SYMONS
Date of judgment:	8 August 2024
Catchwords:	MIGRATION – protection visa – application for review of a decision of the Immigration Assessment Authority –whether Authority fell into error in its application of s 36(2B)(a) of the Migration Act 1958 (Cth) – whether Authority failed to consider whether relocation within Sri Lanka would be reasonable – application dismissed
Legislation:	Migration Act 1958 (Cth), ss 36, 46A.
Cases cited:	MZACX v Minister for Immigration and Border Protection (2016) 161 ALD 73; [2016] FCA 1212.
Division:	Division 2 General Federal Law
Number of paragraphs:	37
Date of last submissions:	6 August 2024
Date of hearing:	6 August 2024
Place:	Melbourne
Counsel for the Applicant:	Mr A Aleksov
Solicitor for the Applicant:	Carina Ford Lawyers
Counsel for the First Respondent:	Mr A Yuile
Solicitor for the Respondents:	Clayton Utz

ORDERS

MLG 113 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AFH18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	8 AUGUST 2024

THE COURT ORDERS THAT:

1.The application for judicial review filed on 17 January 2017 and amended on 19 March 2024 be dismissed.

2.The applicant pay the first respondent’s costs in the amount of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE SYMONS:

INTRODUCTION

1. By application filed on 17 January 2018, the applicant seeks judicial review of a decision of the second respondent (the Authority) dated 10 January 2018. The Authority affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (the visa). The Minister opposes the application. The Tribunal enters a submitting appearance, save as to costs, and has not participated in the proceeding.

   BACKGROUND

2. The applicant is a citizen of Sri Lanka who arrived in Australia on 1 May 2013, and due to the circumstances of his arrival, has the status under the Migration Act 1958 (Cth) (Act) of an unauthorised maritime arrival.

3. On 9 July 2013 the applicant participated in an irregular maritime arrival entry interview (Court Book (CB) 1-18).

4. On 16 June 2016, the Minister lifted the bar imposed by section 46A of the Act and invited the applicant to apply for the visa. On 7 August 2016, the applicant made an application for the visa with the assistance of a registered migration agent (CB 25-78).

5. In Part C of his visa application (including by reference to an attached written statement), the applicant identified his reasons for claiming protection in the following terms:[1]

   [1] CB 64-68.

   (a)He is an ethnic Tamil of Catholic faith. He was born in Dalkith Estate, Kalutura, in the Western Province of Sri Lanka.

   (b)In 2010 he fled Sri Lanka and between 2010 and 2013 he resided in Malaysia. In 2013 he returned to Sri Lanka but soon left again after his life was threatened by Sri Lankan authorities.

   (c)Growing up in Kalutura, he and his family were subject to and frequently witnessed abuse due to their Tamil ethnicity, perpetrated by Sinhalese people and Sri Lankan authorities.

   (d)In 2004, he joined a pen-pal group, and received letters from people across Sri Lanka, including from areas controlled by the Liberation Tamil Tigers of Eelam (LTTE). He discussed Tamil injustices in his communications with his pen-pals. He also wrote to Tamil media outlets about the injustices in his village.

   (e)In 2005, he visited his aunt in Batticaloa. On his return, when collecting letters from the post office, he was interrogated by three men from the Criminal Investigation Department (CID), who accused him of supporting the LTTE.

   (f)He moved to Colombo to stay with relatives due to his fear of ongoing questioning by the CID.

   (g)In Colombo, he worked at a restaurant when members of the CID continued to frequent the restaurant. They asked him to become an informer to them because of his proficiency in both the Tamil and Sinhalese languages.

   (h)He started working as a labourer in Dambulla market, where part of his job involved him transporting vegetables to Jaffna via the A9 highway where he was often stopped by the Sri Lankan Army (SLA) and made to pay bribe money to pass through.

   (i)Following the recommencing of fighting between the LTTE and the SLA, the A9 highway was closed and he was unable to return to Dambulla. The LTTE assisted him to travel to Vavuniya through the forests. He was captured by the SLA and detained for a week, where he was interrogated and beaten. After a week, his family came and facilitated his release with the help of their church leader.

   (j)He returned to his family home but the CID frequently attended his home. He stayed for 2-3 months before moving to a church in Moratuwa. Whilst in Moratuwa he resided and worked in a Baptist Church.

   (k)While he was in Moratuwa, his sister was frequently harassed by the CID. As a result, she moved to India and has not returned to Sri Lanka since.

   (l)At the end of 2009, the leader of the church in Moratuwa was kidnapped by unknown people. Following this, the applicant left Sri Lanka for Malaysia, where he resided for three years.

   (m)In 2013, he returned to Sri Lanka to visit his mother who was unwell. A few days after his return, the CID attended his family home whilst he was out and told his parents that they would kill him if they saw him.

   (n)He travelled to Malaysia from Colombo on 22 March 2013. He went to Indonesia before travelling to Australia.

   (o)He is fearful of returning to Sri Lanka because he is a Tamil male and had been suspected of having links with the LTTE. He is fearful of being tortured by the SLA again. He retains the view that Tamils are still persecuted by the SLA and other groups.

6. On 16 August 2016, a delegate of the Minister wrote to the applicant to request that he provide a fully completed ‘Part C’ of his visa application form.[2] The applicant’s representative provided this information to the delegate via email on 21 August 2016.[3]

   [2] CB 96-101.

   [3] CB 102-108.

7. On 29 December 2016, the Minster requested that the applicant attend an interview.[4]

   [4] CB 111-114.

8. On 2 August 2017, a delegate of the Minister made a decision to refuse to grant the applicant the visa.[5]

   [5] CB 163-181.

9. On 4 August 2017, the delegate’s decision was referred to the Authority for review.[6]

   [6] CB 183-196.

10. On 23 August 2017, the applicant’s representative requested a copy of the recording of the applicant’s visa interview from the Authority,[7] which the Authority provided on 24 August 2017.[8] 

    [7] CB 197-198.

    [8] CB 199.

11. On 25 August 2017, the applicant’s representative provided a submission by the applicant in support of the application for review.[9]

    [9] CB 209-213.

12. On 10 January 2018, the Authority affirmed the decision of the delegate and produced a set of written reasons (Reasons).[10]

    [10] CB 215-231.

    THE DECISION OF THE AUTHORITY

13. The issue raised by this application for judicial review is narrow in compass and directs attention to the Authority’s consideration of whether it was reasonable for the applicant to relocate within Sri Lanka.

14. The question of relocation arose on the back of the Authority’s finding recorded at Reasons [33], that if the applicant was to return to his home area, it accepted that harassment and discrimination towards him from Sinhalese villagers in the Dalkieth Estate might resume. The Authority found however that the prospective harm was localised and did not extend to all areas of the country, including Colombo and Moratuwa, where the applicant had previously lived. The Authority was otherwise not satisfied that any of the applicant’s other claims engaged Australia’s protection obligations under s 36(2)(a) and went on to record findings under the heading “Complementary protection assessment” including, relevantly, as follows:

    43.A criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

    Real risk of significant harm

    44. Under s. 36(2A), a person will suffer ‘significant harm’ if:

    •the person will be arbitrarily deprived of his or her life

    •the death penalty will be carried out on the person

    •the person will be subjected to torture

    •the person will be subjected to cruel or inhuman treatment or punishment, or

    •the person will be subjected to degrading treatment or punishment.

    45.For the reasons already stated, I have found that there is not a real chance the applicant will face harm from the Sri Lankan authorities, including the army, police and the CID on return to Sri Lanka due to imputed support of the LTTE, his previous detention, mistreatment and questioning by the army in 2006, his religion and connection with a Baptist pastor who went missing in late 2009, his Indian Tamil ethnicity, or due to having been abroad in Australia as an asylum seeker.

    46.As ‘real chance’ and ‘real risk’ involve the same standard, it follows that based on the same information, and for the reasons stated above, I am also satisfied there is no real risk of significant harm within the meaning of s 36(2A) and 5(1) on these bases if returned to Sri Lanka.

    47.There is no suggestion the applicant faces the death penalty on return for any reason.

    48.During his visa interview, the applicant made reference to being impacted by Sinhalese and Buddhists on return to Sri Lanka.  I have found that the harassment and discrimination by Sinhalese villagers the applicant experienced previously in Sri Lanka, was limited to the locality of the Dalkieth Estate and that the applicant had lived for significant periods of time in other areas of the country such as Colombo and Moratuwa without being pursued by the Sinhalese from his locality.  Given the applicant was able to relocate to other areas in Sri Lanka where he has family and church support networks and was able to secure accommodation and an income, I consider that while he may experience future harassment and discrimination from Sinhalese people in future, this would not amount to significant harm.

    …

15. The Authority found that the applicant did not meet s 36(2)(aa) of the Act and affirmed the decision of the delegate not to grant the applicant the visa.

    JUDICIAL REVIEW

16. On 16 October 2018, a Registrar made procedural orders including that the applicant file and serve at least 28 days before the final hearing, any amended application with proper particulars of the grounds of the application, any supplementary court book (if any) and written submissions, on which he seeks to rely.

17. On 19 March 2024, the applicant filed an amended application for judicial review, citing the following single ground of review:

    Ground 1

    1.The Authority failed to correctly understand or apply s 36(2)(aa) of the Act in its failure to consider s 36(2B)(a), as it failed to assess whether the Applicant’s relocation would be reasonable.

    Particulars

    a.The Authority failed to consider s 36(2B)(a) in relation to the Applicant’s claim that he would continue to face injustice and ill-treatment due to his ethnicity and religion from the Sinhalese living in his home area (Reasons [33]).

    b.The Authority determined at [33] that “the applicant has previously resided in other areas, such as Colombo and Moratuwa, without harassment and the local Sinhalese from the Dalkieth Estate have not appeared to pursue their treatment of him in these places. Accordingly, I am satisfied that the harm faced by the applicant from Sinhalese villagers is restricted to the locality of the Dalkieth Estate and does not extend to all areas of the country”.

    c.The IAA failed to assess whether that relocation would be “reasonable” as required by s 36(2B)(a).

18. On 19 March 2024, the applicant filed written submissions.

19. On 8 April 2024, the Minister filed written submissions.

20. At the hearing on 6 August 2024 the applicant was represented by Mr Aleksov of counsel and the Minister by Mr Yuile of counsel.

    Applicant’s submissions

21. The applicant submits that by adopting the reasoning that it did at Reasons [48], which involved a transposition of its findings in relation to s 36(2)(a), the Authority failed to consider the question posed by s 36(2B)(a) of the Act, being whether relocation is safe and reasonable.  The applicant submits that only the safety aspect was resolved through this reasoning with the result that the decision made by the Authority was unlawful.

22. The applicant submits that the question of whether relocation is reasonable involves a substantial and fact intensive exercise that is concerned with the human element of the proposed relocation.

23. The applicant submits it to be significant that in this case, the Authority gave express attention to statutory matters at Reasons [44] and to legal matters and propositions at [46] and that in neither of these places did it identify the dispositive provision (s 36(2B)(a)) or make reference to the concept of reasonableness.

24. The applicant acknowledges that matters referred to by the Authority in Reasons [48] – family and church support networks and the ability to secure accommodation and an income – are capable of being germane to relocation.  However, the applicant submits it to be telling, and conclusive of the error made by the Authority, that these considerations are linked to a finding that the applicant’s experience of future harassment and discrimination would not amount to significant harm.

25. The applicant invites the Court to infer that the reference at [48] to “significant harm” is to be assimilated to the definition of “significant harm” recorded by the Authority at Reasons [44] and that this being the case, the Authority has failed to make an assessment of whether it will be reasonable for the applicant to face the identified harm in any postulated area to which he might relocate.

    Minister’s submissions

26. The Minister accepts that reasonableness of relocation was not expressly mentioned by the Authority but submits that the Reasons demonstrate that it did, in substance, consider reasonableness of relocation for the purpose of s 36(2B)(a).

27. The Minister submits that the scope of any reasonableness analysis will depend on the particular circumstances and claims of any given case.  Here, there was no matter expressly put forward by the applicant, and nothing that arose on his materials that related to the reasonableness of any relocation. The Authority in these circumstances could only consider reasonableness of relocation in a general sense, and not in response to any objection raised by the applicant (referring to MZACX v Minister for Immigration and Border Protection (2016) 161 ALD 73 at [34])

28. The Minister submits that the Authority did undertake this consideration by referring (at Reason, [48]) to the applicant’s access to family and church support networks, and to his previously secured employment and accommodation in the other parts of Sri Lanka to which he might relocate.  Given that these considerations were not relevant to the refugee criteria and were not mentioned in that section it can be inferred that they were deployed in the specific context of reasonableness of relocation for the purposes of the complementary protection criteria.

29. The Minister submits that the reference in the closing sentence of Reasons [48] to “significant harm” is not indicative of error and instead coheres to the language used in s 36(2B)(a) of the Act. This section provides:

    (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

    a)   it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm;

    …

30. The Minister submits that the reference to “significant harm” at [48] should be understood as comprehending the sub-concept of relocation in a way that mirrors the legislative scheme.

    CONSIDERATION

31. The discussion by the Authority around relocation undoubtedly is brief. However, I am not ultimately persuaded that it discloses a failure to consider s 36(2B)(a) of the Act in relation to the applicant’s claim that he would continue to face injustice and ill-treatment due to his ethnicity and religion from the Sinhalese living in his home area. I have arrived at this conclusion for the following reasons:

32. First, the applicant’s claim to apprehend harm from Sinhalese living in his home area was dealt with exhaustively at Reasons [33]. In that passage, the Authority recorded a finding that the harm faced by the applicant from Sinhalese villagers was restricted to the locality of the Dalkieth Estate. There was no residual aspect of that claim that the Authority was required to grapple with when it came to consider the question of whether s 36(2B(a)) of the Act might apply to the circumstances of the applicant’s case.

33. Second, while the Authority set out at Reasons [44] the definition of “substantial harm” in a manner that did not make reference to s 36(2B)(a), it is clear that this definition was intended by the Authority to contextualise its findings recorded at paragraphs [45]-[47].

34. Third, while Reasons [48] do not make reference to the word or concept of “reasonableness”, I am satisfied that in circumstances where the Authority identified considerations (family and church support networks and ability to secure accommodation and an income) that were not marked for attention in the s 36(2)(a) assessment and which (the applicant accepts) are matters germane to the question of reasonableness of relocation that their presence in this section signifies that the Authority was in substance turning its mind to the question of reasonableness.

35. The brevity of the Authority’s reasons undoubtedly reflects the fact that the applicant did not raise any particular objections to relocation and therefore the parameters of the Authority’s inquiry were necessarily limited.

36. I consider on a fair reading of the Reasons as a whole that the reference at the end of [48] to “significant harm” involves an acknowledgement and appreciation by the Authority that where the apprehended harm was confined to the Dalkieth Estate and where the Authority had satisfied itself as to the reasonableness of the applicant’s relocation to other areas of Sri Lanka, s 36(2B)(a) of the Act was engaged.

    ORDERS

37. The applicant has not established jurisdictional error in the decision of the Authority.  It follows that his application seeking judicial review should be dismissed and an order made that the applicant pay the Minister’s costs in the Scale amount for a final hearing.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons .

Associate:

Dated:        8 August 2024