Ajj17 v Minister for Immigration

[2019] FCCA 3263

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJJ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3263

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made an unreasonable conclusion – whether the Authority addressed a wrong question – whether the Authority brought an independent and impartial mind to determination of the matter on its merits – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5H, 5J, 36, 473DD, 476

Applicant: AJJ17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 46 of 2017

Judgment of: Judge Street

Hearing date: 12 November 2019

Date of Last Submission: 12 November 2019

Delivered at: Perth

Delivered on: 12 November 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr S Cummings
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDERS: 12 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 46 of 2017

AJJ17

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 relation to a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 22 December 2016 affirming the decision of a 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. On 3 October 2012, the applicant arrived in Australia as an unauthorised maritime arrival. On 27 March 2016, the applicant applied for a Safe Haven Enterprise visa.

3. The applicant claimed to fear harm from the Criminal Investigation Department (“CID”) by reason of being suspected of being a Liberation Tigers of Tamil Elam (“LTTE”) supporter and the fact that the applicant was, at one stage, detained for three days by the LTTE. The applicant also claimed to fear harm by reason of his illegal departure from Sri Lanka and being a failed asylum seeker.

4. On 29 September 2016, the delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. By letter dated 4 October 2016, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review and attached a fact sheet and practice direction which provided the applicant an opportunity to put on new information and submissions.

5. On 20 October 2016, the applicant provided submissions and new information to the Authority. The Authority identified that new information in its reasons and considered the same against the requirements of s 473DD of the Act. The Authority found that there were not exceptional circumstances to justify consideration of the new information and/or that the new information did not meet the requirements of s 473DD(b) of the Act. The Authority’s reasons reflect a consideration of the whole of the requirements of s 473DD of the Act.

6. The Authority also identified in its reasons that there was a reference in the applicant’s submissions to a document which was not included in the documents provided by the applicant. The Authority referred to the provisions of Part 7AA of the Act and decided not to take further steps to obtain the same. The Authority provided logical and rational reasons in support of that approach. The Authority took into account the opportunity the applicant had already been given to provide new information and submissions.

7. The Authority summarised the applicant’s claims and evidence. The Authority accepted as plausible that the applicant had an explanation for not referring to being kidnapped by the LTTE for three days in 2008. The Authority also referred to exploring with the applicant whether he had received any threats from the CID or been asked questions by the CID and that the applicant indicated no. The Authority also referred to the applicant being asked about his and his family’s contact with members of his family with connections to the LTTE and that nothing had happened to his family like had happened to other people such as neighbours.

8. The Authority was not satisfied that the applicant is of any interest to the Sri Lankan authorities. The Authority accepted that the area from which the applicant came from was under the control of the LTTE almost until the end of the war. The Authority accepted that the applicant’s family was visited by the military but considered that this was part of routine monitoring of the applicant’s family by the Sri Lankan authorities rather than an instance of the authorities displaying any interest specifically in the applicant. The Authority was not satisfied that the applicant is now, or has ever been, a person of interest to the Sri Lankan authorities on the basis of actual or imputed LTTE or Separatist connections or sympathies.

9. The applicant also claimed that he will be under suspicion on return to Sri Lanka because his name is not on the family card. The Authority was not satisfied that the applicant is at any risk of harm from the CID on the basis of his name not being on the family card.

10. The Authority referred to country information and was not satisfied that the applicant has a well-founded fear of persecution as a young Tamil male from a former LTTE-controlled area. The Authority was also not satisfied that there is a real chance the applicant will suffer serious harm on return to Sri Lanka now or in the reasonable foreseeable future on the basis of his ethnicity or imputed political opinion.

11. The Authority referred to the applicant’s illegal departure from Sri Lanka. The Authority was not satisfied that the applicant faces a real chance of harm on return to Sri Lanka for reasons of having left Sri Lanka illegally or because he will be returning to Sri Lanka as a failed asylum seeker, including due to his Tamil ethnicity.

12. The Authority referred to the Immigrants and Emigrants Act (Sri Lanka) and found that it is not a discriminatory law and is not selectively enforced or applied in a discriminatory manner. The Authority found that the investigation, prosecution and punishment of the applicant for his illegal departure under the Immigrants and Emigrants Act (Sri Lanka) does not amount to persecution within the meaning of s 5J(4) of the Act.

13. The Authority considered the applicant’s claims cumulatively, that is the applicant being a young Tamil male from the Northern Province of Sri Lanka who was displaced from his family home, kidnapped briefly by the LTTE, spent time in an internally displaced persons’ camp, has relatives who are in the LTTE, one of whom was recently released from rehabilitation, and that the applicant left Sri Lanka unlawfully and will be returning as a failed asylum seeker. The Authority was not satisfied that, taking these claims together, the applicant is at risk of significant harm now or in the reasonably foreseeable future.

14. The Authority found that the applicant did not meet the requirements of 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. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant 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. These proceedings were commenced on 23 January 2017. On 26 April 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant handed up to the Court a submission document which has been marked Exhibit B.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant referred to there being a lot of problems in Sri Lanka and sought to refer to recent events. Events which were not before the Authority are not capable of giving rise to any jurisdictional error by the Authority.

4. The applicant also claimed to fear harm by reason of imputed LTTE connections. It is apparent from the Authority’s reasons, as summarised above, that that was a matter expressly considered by the Authority and that the Authority made adverse findings in that regard. The Authority took into account the country information that was provided to the Authority.

5. The applicant’s oral submissions were, in substance, an invitation to the Court to engage in merits review. This Court has no power to review the merits. Accordingly, nothing said by the applicant from the bar table identifies any jurisdictional error.

Applicant’s written submissions

1. In relation to the applicant’s written submissions, paragraph 4 is as follows:

   (a) As I am an asylum seeker my case has to be judged not on the rigorous basis of proving a fact beyond reasonable doubt. I believe that in my position that the Second Respondent should have been more careful on coming to conclusions in my case.

   (b) Under the Refugee Convention and Migration Act I have been clearly pointed to the fact that as a young Sri Lankan Tamil I face persecution, insufficient protection, subjective fear which is well founded, my inability to relocate within Sri Lanka due to its size and my inability to speak and understand the Sinhalese language.

   (c) Close members of my family had been killed by the Sri Lankan army. This fact was available to the Second Respondent.

   (d) The Prevention of Terrorism Act in Sri Lanka and its application in the past and to young Sri Lankan Tamils like me was not properly assist by the Second Respondent.

   (e) The Second Respondent failed to examine the situation in the country in regard to young Sri Lankan Tamils like me.

   (f) The UNHCR was and is now examining the human right abuses committed by the Sri Lankan army while trying to suppress the Sri Lankan Tamils in the North and East of the country.

   (g) There are over 90000 war widows in the North and East of Sri Lanka, an army of occupation which is predominantly comprised of the Sinhalese population with little civil administration in these areas. The Second Respondent never examined this issue.

   (h) The Second Respondent was biased as he was influenced by the one sided information as regards to asylum seekers like me. This biased and prejudiced attitude was also published in the media which covered statements made by certain politicians in Australia.

Paragraph 4(a)

1. In relation to paragraph 4(a), it is not the case that the Authority has to determine things by a standard beyond reasonable doubt. Indeed, it is for the applicant pursuant to s.5AAA of the Act to satisfy the Authority of the applicant’s claims. No jurisdictional error arises by reason of paragraph 4(a).

Paragraph 4(b)

1. In relation to paragraph 4(b), it is apparent that the Authority took into account that the applicant was a young Tamil male in the area from which he came. The Authority made adverse findings in respect of his claims under the 1951 Refugee Convention and in relation to complementary protection. Those adverse findings were open to the Authority for the reasons given by the Authority as summarised above. The adverse findings were not illogical, irrational or unreasonable. Further, it is not a case where the Authority made findings in respect of relocation. No jurisdictional error arises by reason of paragraph 4(b).

Paragraph 4(c)

1. In relation to paragraph 4(c), the Authority referred to and accepted the applicant’s family members’ association with the LTTE and took that into consideration in its reasons. No jurisdictional error arises by reason of paragraph 4(c).

Paragraph 4(d)

1. In relation to paragraph 4(d), it is apparent that the Authority referred to the Prevention of Terrorism Act 1978 (Sri Lanka) and took the same into account. No jurisdictional error arises by reason of paragraph 4(d).

Paragraph 4(e)

1. In relation to paragraph 4(e), it is apparent that the Authority took into account country information in relation to Tamils, that being the applicant’s ethnicity. There is no substance in the contention that such country information was not taken into account. No jurisdictional error arises by reason of paragraph 4(e).

Paragraph 4(f)

1. In relation to paragraph 4(f), whilst it is not apparent whether this is a reference to the UNHCR report referred to in paragraph 4 of the Authority’s reasons which was identified as new information and which the Authority found did not meet the requirements of s 473DD(b) of the Act, it is not open to establish any error by the Authority in referring to information that was not before the Authority. The Authority’s adverse finding under s 473DD of the Act in respect of the Human Rights Watch report does not identify any misapplication or misconstruction of s 473DD of the Act. That report was not before the Authority and, accordingly, is not capable of establishing any error. No other report has been identified by the applicant. No jurisdictional error arises by reason of paragraph 4(f).

Paragraph 4(g)

1. In relation to paragraph 4(g), this appears to be an identification of new information and a new issue which was not advanced by the applicant. An issue not advanced by the applicant before the Authority is not capable of giving rise to any error in relation to the merits of the applicant’s claims. No jurisdictional error arises by reason of paragraph 4(g).

Paragraph 4(h)

1. In relation to paragraph 4(h), the applicant alleges that the second respondent was biased and influenced by one-sided information. Bias is a serious allegation and must be clearly proved. No such bias is proved.

2. The reference to country information which was accepted by the Authority is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. The reference to media articles also does not identify any basis upon which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits.

3. On the face of the material before the Court, the Authority approached the review with an open mind reasonably capable of persuasion as to the merits. No jurisdictional error arises by reason of paragraph 4(h).

4. Accordingly, the applicant’s written submissions do not identify any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. Jurisdictional error.

   2. Bias based on conscious or unconscious prejudice by ignoring relevant material.

   3. Identifying a wrong issue on a wrong question.

Ground 1

1. The mere allegation of jurisdictional error is incapable, without particulars, of establishing jurisdictional error. On the face of the Authority’s reasons, the Authority complied with its statutory obligations in the conduct of the review. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, this is an allegation of bias by reason of allegedly ignoring relevant material. No relevant material has been identified which the Authority ignored. Accordingly, no allegation of bias as alleged is made out in ground 2. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, no wrong issue or wrong question has been identified by the applicant. Unparticularised, this ground is incapable of making out any jurisdictional error.

2. On the face of the material before the Court, the Authority correctly identified the relevant law and the Authority’s reasons, on their face, reflect a correct application of the relevant law to the findings of fact made by the Authority. No jurisdictional error arises by reason of ground 3.

3. As the applicant has not made out any jurisdictional error by the Authority, the application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 12 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  17 January 2020