AHD20 v Minister for Immigration

[2020] FCCA 2996

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHD20  v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2996

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – no jurisdictional error made out by application – whether adjournment warranted given the decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 in relation to the application of s. 473DD of the Migration Act 1958 (Cth) – no arguable case for relief made out on the basis of s 473DD – application dismissed under r 44.12.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 476

Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

Cases cited:

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

Applicant: AHD20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 146 of 2020

Judgment of: Judge Street

Hearing date: 5 November 2020

Date of Last Submission: 5 November 2020

Delivered at: Sydney

Delivered on: 5 November 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Ms S Thompson, HWL Ebsworth, via Microsoft Teams.

ORDERS

1. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 5 November 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 146 of 2020

AHD20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA of the Act, dated 20 December 2019, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country.

3. The applicant is a Tamil Hindu, who was born in a particular district. 

4. The applicant alleged the Liberation Tigers of Tamil Elam (“LTTE”) used to have an office next his home. The applicant alleged that the family home was searched by the Sri Lankan Army (“SLA”) in 2008 for weapons.

5. The applicant alleged that the family’s other house, which was opposite an army camp, was the subject of a visit by the Criminal Investigation Department (“CID”) in July 2010, inquiring about the applicant’s brother and a cousin, “J”.

6. The applicant alleged that his brother was interrogated and beaten and accused of having stored weapons for the LTTE.  The brother departed Sri Lanka in December 2010. 

7. The applicant and his mother relocated to Colombo in January 2011.  The applicant left Colombo at the end of February 2011. 

8. The applicant claimed to fear harm from the Sri Lankan authorities and because of suspected links to the LTTE and because he departed Sri Lanka illegally and sought asylum abroad. 

9. The applicant arrived in Australia in October 2012 as an unauthorised maritime arrival.

10. On 11 November 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. 

11. On 7 July 2017, a differently constituted Authority affirmed the Delegate’s decision. That decision was quashed by orders of this Court on 3 October 2019, remitting the matter for further review by the Authority. 

12. On 7 November 2019, the Authority wrote to the applicant explaining that the application had been remitted to the Authority for reconsideration. 

13. The Authority in its decision identified the background to the visa application, and had regard to the material provided by the secretary under s 473CB of the Act.

14. The Authority identified that it had received submissions on 5 December 2016, and that that included some new information. 

15. On a fair reading of the Authority’s reasons, the Authority took into account both limbs of s 473DD(b) of the Act before finding that there were not exceptional circumstances to justify considering the new information.

16. No arguable case of relevant error arising under AUS17 v The Minister for Immigration and Border Protection [2020] HCA 37 is apparent on the face of the Authority’s reasons.

17. The Authority identified the applicant’s claims and summarised the relevant law, including in an attachment of applicable law incorporated by pagination in the Authority’s reasons. 

18. The Authority identified having significant credibility concerns in respect of the applicant’s evidence about the CID search for his brother in 2010. 

19. The Authority also took into account that the applicant could not provide a more consistent story in relation to his brother’s departure from Sri Lanka, and was not satisfied with the applicant’s explanation for the lack of consistency.

20. The Authority also identified incidents that the applicant did not mention in his 2013 entry interview, and did not accept the applicant’s explanation for the failure to refer to such significant incidents. 

21. The Authority was not satisfied that the applicant is a credible witness. 

22. The Authority did not accept the applicant’s claims in relation to his cousin, and was not satisfied the Sri Lankan authorities have any adverse interest in the applicant’s cousin or imputed to the applicant’s family any LTTE profile.

23. The Authority was not satisfied that the Sri Lankan authorities searched the applicant’s family home for weapons. The Authority was not satisfied that the applicant or his brother ever came to the adverse attention of the Sri Lankan authorities. The Authority was not satisfied that the Sri Lankan authorities sought the applicant out or his family members when they were in Sri Lanka or after he left Sri Lanka. 

24. The Authority did not accept that the applicant left Sri Lanka illegally. 

25. The Authority was not satisfied that the applicant, returning as a Tamil asylum seeker from Australia who left legally, faces a real chance of persecution. 

26. The Authority was not satisfied that the applicant faces a real chance of harm due to any difficulties or treatment he may face on return to Sri Lanka.

27. The Authority was not satisfied that the applicant faces a real chance of persecution for any of the reasons claimed if he were to return to Sri Lanka now or in the reasonably foreseeable future. 

28. The Authority found that the applicant did not meet the requirements for the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

29. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there is a real risk that he will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act, and affirmed the decision under review.

Before the Court

1. On 20 February 2020, a Registrar of this Court made orders fixing the matter today for a show-cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The Registrar also made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the show-cause hearing. 

3. The applicant maintained that he had problems going back to Sri Lanka because of his brother and because of where his home was, in which he lived with his mother.

4. The applicant’s oral submissions, in substance, invited this Court to engage in impermissible merits review. 

5. The Authority made findings dispositive of the applicant’s claims that were open for the reasons given by the Authority. On the face of the Authority’s reasons, it had a genuine intellectual engagement with the applicant’s claims and evidence. 

6. On the face of the Authority’s reasons, it complied with its statutory obligations in the conduct of the review, including in its assessment of new information, in accordance with the requirements of s 473DD of the Act. 

7. Nothing said by the applicant identified any arguable case of relevant error by the Authority.

The grounds 

1. The grounds in the application are as follows:

   1.Decision made on 20/12/2019 just before the holidays.

   2.Agent was closed so I could not contact them.

   3.Need time to look for another lawyer.

2. The grounds in the application do not purport to identify any arguable error, but simply refer to an endeavour to find a lawyer and wanting more time.

3. Under r 44.13(1) of the Rules, a show-cause hearing is one which is confined to the relief sought and the grounds mentioned in the application. 

4. The grounds patently failed to identify an arguable case for the relief claimed.

5. By email sent to the Court yesterday, the first respondent suggested that the matter should be the subject of an adjournment, and that it should be fixed for a final hearing because of a possible issue arising from the High Court’s decision in AUS17 v The Minister for Immigration and Border Protection [2020] HCA 37. That was a decision of the High Court delivered on 14 October 2020.

6. Any party seeking a variation of the Court’s orders must file an application in a case supported by an affidavit. The first respondent has had ample opportunities since 14 October 2020 to do so, and did not. 

7. Given the requirements of r 44.13(1) of the Rules, it is difficult to understand why that request was made by the first respondent. Of course, this Court has power to depart from the Rules, however, it is not apparent why it is suggested there might be any arguable case of relevant error in respect of the Authority’s decision in respect of the new information.

8. The Court has looked at the Authority’s decision at an impressionistic level and is not satisfied that there is any arguable case that arises in respect of the application of s 473DD of the Act by the Authority. 

9. No argument was developed by the first respondent as to why it was said there was an arguable case of relevant error in relation to the application of s 473DD of the Act.

10. This Court has taken into account the recent decision of the High Court in AUS17 v The Minister for Immigration and Border Protection [2020] HCA 37 and can see no arguable case for the relief claimed, taking into account that decision and the provisions of s 473DD of the Act and the reasons of the Authority. 

11. As nothing said by either of the parties raises an arguable case for the relief claimed, and as the application fails to raise an arguable case for the relief claimed, this Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules.

I certify that the preceding forty-seven (47) are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 November 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 14 December 2020