Akx18 on behalf of Ala18 v Minister for Immigration

[2020] FCCA 894

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKX18 ON BEHALF OF ALA18 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 894

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise Visa (SHEV) – whether the Authority failed to consider relevant claims before it – whether the Authority’s decision was unreasonable, irrational or illogical – whether the Authority made jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

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

Migration Regulations 1994 (Cth), Sch.2

Cases cited:

NABE v Minister for Immigration and Multicultural and Indigenous Affairs

(No.2) [2004] FCAFC 263

First Applicant: ALA18

Second Applicant: ALB18

Third Applicant: ALC18

Fourth Applicant: ALD18

Fifth Applicant: ALE18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 238 of 2018

Judgment of: Judge Humphreys

Hearing date: 27 March 2020

Date of Last Submission: 27 March 2020

Delivered at: Parramatta

Delivered on: 1 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Foster

Solicitors for the Applicant: Sentil Solicitors

Counsel for the Respondents: Mr Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The litigation guardian to pay the first respondent’s costs fixed in the amount of $4,500.00.

4. The above orders are stayed until 30 June 2020.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 238 of 2018

ALA18

First Applicant

ALB18

Second Applicant

ALC18

Third Applicant

ALD18

Fourth Applicant

ALE18

Fifth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are minors who are citizens of Sri Lanka. The four eldest children arrived in Australia on 25 April 2013 with their parents, AKX18 (their father) and AK18 (their mother). On 2 January 2017, each of the applicants was included as a secondary applicant in their parent’s Safe Haven Enterprise Visa (SHEV), Subclass 790 application. No specific protection claims were made in relation to each of the children.

2. On 2 June 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant each of the applicant’s parents a protection visa. Consequently, the applicants were found not to be entitled to the grant of the visa, as they did not meet the secondary criteria for the grant of the visa under Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

3. Merits review was sought in the immigration assessment Authority (“the Authority”). In a decision dated 10 January 2018, the Authority affirmed the delegate’s decision not to grant each of the applicant a protection visa.

4. The applicants now seek judicial review of the Authority’s decision. This judgement should be read in conjunction with the Court’s judgement in relation to the applicant’s parents.

The Immigration Assessment Authority’s Decision

1. In considering the claim, the authority had regard to the material given to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”), together with a submission from the applicant’s representative.

2. At paragraph 8 of its decision, the Authority sets out the applicants’ claims for protection. They are summarised as follows:

   ·Applicant one is a daughter born in Sri Lanka. Applicant on remained in Sri Lanka living with extended family when her mother joined their father in Kuwait for periods between 2006 and 2010.

   ·Applicant two is a daughter born in Kuwait. Applicant two returned to live in Sri Lanka with her mother around 2008 and remained living with extended family when her mother re-joined their father, for a period before returning to Sri Lanka in 2010.

   ·Applicant three is a son born in Kuwait. Applicant three returned to Sri Lanka with his mother around 2008 and remained living with extended family when his mother re-joined their father for a period before returning to Sri Lanka in 2010.

   ·Applicant four is a son born in Sri Lanka. Applicant four lived in Sri Lanka with his mother while their father was working overseas.

   ·Applicant five is a son, born in Australia subsequent to the arrival of his parents in Australia.

   ·The applicants’ father fears for the safety of all of the children. The applicants’ father fears are based on them being Tamil with LTTE familial links who would be returning to Sri Lanka as failed asylum seekers, perceived to have money and because the east of the country remains militarised.

   ·Applicant one, two, three and four were with their parents at a bus stop in 2013, when their father was taken by police. At the applicants’ fathers SHEV interview, the father advanced that if they were to return now, the applicants’ lives would be affected and the country is not completely safe. The applicants’ father is aware of the media reports of the abduction of a 13-year-old girl in Sri Lanka and he worries in particular, about the safety of his teenage daughter. The applicants’ representative also advanced that the children may experience mental health concerns if their parents face problems in Sri Lanka.

3. At paragraph 15 of its decision, the Authority noted that the applicant’s father and mother both have familial links to the LTTE and noted claims that their father was detained by authorities in the past, the Criminal Investigative Department (“CID”) visited their mother and asked about her relative, who was an LTTE fighter. It was claimed that the applicant’s mother knew where weapons were hidden. The Authority placed significant weight on the ability of the applicant’s parents to enter and exit Sri Lanka on multiple occasions, both during and after the Civil War.

4. Neither the applicants’ parents has been charged with any offences nor is the Authority satisfied that they have been imputed with any LTTE profile. There was no indication that any other extended family members had come to adverse attention because of similar familial links to LTTE members. The Authority was not satisfied that the applicant’s parents would face harm on return to Sri Lanka.

5. Accordingly, the Authority was not satisfied there was a real chance that applicants one, two, three, four and five would experience harm or mental health concerns because of any problems that their parents may face in Sri Lanka.

6. At paragraph 16 of its decision, the Authority was not satisfied that there was a real chance of harm to any of the applicants because they are Tamils. The Authority accepted that the applicant’s parents may have a subjective fear about the safety in Sri Lanka, noting that the four older applicants were present when their father was taken by authorities at a bus stop in 2013. The Authority noted the father’s concerns about the general safety and the reported recent abduction and death of a teenager in Sri Lanka and his particular concern for his eldest daughter, who is now a teenager and his other daughter, who was 11 years of age as at the time of the Authority’s decision. Whilst the report referred to was distressing, the Authority was not satisfied that there was more than a remote chance that the applicants would be harmed in a similar manner.

7. At paragraph 19 through to 20 of its decision, the Authority noted the applicants may return to Sri Lanka on temporary travel documents and that the applicants would be subject to an investigative process to confirm their identity on arrival and that this may take several hours to complete. The Authority was not satisfied that there was a real chance the applicants would be harmed in this process. The Authority was also not satisfied that each of the applicants would experience any risk on the basis that they might be perceived to have actual or imputed LTTE links, or on the basis of being failed asylum seekers.

8. Accordingly, the Authority was not satisfied that the applicants meet the requirement of the definition of a refugee in s 5H(1) of the Act.

9. Paragraphs 23 through to 26 of the Authority’s decision deal with complimentary protection considerations. For similar reasons as outlined above, the Authority was not satisfied that the applicant met the requirements for protection under the complimentary protection provisions.

Grounds of Appeal

1. One ground of appeal is relied upon being as follows, verbatim:

   1.        The Second Respondent (the IAA) failed to consider a claim arising on the material before it

   Particulars

   a)        The applicant’s mother (AKY18) claims to fear harm in the form of sexual harassment and sexual assault at the hands of Sri Lankan authorities. This claim was considered by the IAA in making a decision in respect of AKY18.

   b)        In affirming the decision under review, the IAA did not consider the risk of harassment and sexual assault to the applicants, and in particular, the female Applicants.

   b)        The review of the decision to refuse the Applicants visa application was conducted by reviewer Joanne Jennings, who is the same IAA reviewer is the one who conducted the review of the decision to refuse AKY18’s visa application.

   d) The matters raised above at (a) – (b) were matters which arose squarely on the material before the IAA and were relevant to the assessment of whether the applicant met the criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958. Consequently, the IAA’s decision was affected by jurisdictional error.

The Applicant’s Submissions

1. Despite Court orders, no written submissions, other than a repetition of the grounds of appeal, was filed with the Court in support of the applicants contentions. The applicants’ representative told the Court that the children’s claims rested upon the outcome of their parent’s claims, as they are a family unit.

The First Respondent’s Submissions

1. Only one ground of appeal is advanced, where it is asserted that the Authority failed to consider a claim that arose in the materials before it. That being, a claim that the applicants’ and in particular the female applicant’s, face a risk of harassment and sexual assault if returned to Sri Lanka.

2. Counsel for the first respondent notes that the applicants did not advance in their SHEV interview, their own claims to fear harm. Nor were any claims to fear harm advanced by, or on behalf of, the applicants during the protection visa interviews with the Department

3. The applicant’s contended the claim of harm arose in the materials before the reviewer. Given that the same delegate made the decision, it may be accepted that the Authority in the applicant’s review, had before it information relating to their mothers review. Indeed, the Authority in its decision record referred expressly to their mother’s claims and in its determination concerning those claims.

4. Whilst the Authority accepted that the applicant’s mother had been sexually assaulted by CID officers as part of a routine investigation 2005, the Authority, by reference to country information in the mother’s case, was satisfied that there was no more than a remote chance the mother would be sexually assaulted in the future. Having determined the applicants’ mothers claim as it did, Counsel for the first respondent submitted that a claim that the applicants, particularly the female applicants, would by virtue of the mother’s claims, be at risk of sexual harassment or sexual assault if returned to Sri Lanka, did not squarely arise on the materials (see NABE v Minister Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263).

5. Further, the Authority did consider whether the applicants themselves would be at risk due to their father’s concern about the general safety, following the reported death of a teenager. The Authority accepted the applicants’ father’s concerns but was not satisfied that there was more than a remote chance the applicants will be harmed in a similar matter.

6. The Authority also noted country information indicating that as at 2017, a number of allegations of sexual assault and rape had been attributed to the Sri Lankan military in the north and the east.

Consideration

1. Each of the applicants, except applicant five, is a minor who came to Australia with their parents. Applicant five was born in Australia but is not an Australian citizen. In relation to the applicant’s parents, the Authority was satisfied that they did not meet the requirements for protection as a refugee or under the complimentary protection requirements. The Authority carefully considered those claims in so far as they impacted on the claims made on behalf of the children.

2. In considering the claim of fear of sexual assault, particularly in relation to the teenage daughters, the Authority considered the relevant country information before it and came to a view that the chance of harm was remote. The Court is satisfied that, that was a conclusion that was reasonably open to the Authority, based on the information it had before it. There is nothing unreasonable, illogical or irrational in that conclusion.

3. The Court is satisfied that the Authority took into account all of the information it had before it, including information in relation to their mothers claims concerning her accepted sexual assault by Sri Lankan security authorities. The Authority was not satisfied that the mother’s subjective fears of similar assaults, in the future, could be objectively supported by the country information before the Authority.

4. The Court is not satisfied that the Authority overlooked any matter it was required to consider or that it failed to consider or intellectually engage with any aspect of a claim that was before it. No jurisdictional error made out.

Conclusion

1. Accordingly, the application is dismissed.

2. Given that this matter and the associated matters involve a family unit including five children and given the current health pandemic of COVID-19, the Court proposes to stay the Orders of this Court, until 30 June 2020. Any appeal period will run from that date.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 1 May 2020