ALS18 v Minister for Home Affairs

[2024] FedCFamC2G 890

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ALS18 v Minister for Home Affairs [2024] FedCFamC2G 890

File number(s):

MLG 252 of 2018

Judgment of:

JUDGE J YOUNG

Date of judgment:

13 September 2024 

Catchwords:

MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed decision of first respondent that applicant is not a person in respect of whom Australia has protection obligations – where grounds raised by applicant entirely unparticularised – oral claims made at hearing – found Authority had regard to relevant information and circumstances – found no jurisdictional error on behalf of the Authority.

Legislation:

Migration Act 1958 (Cth) ss 5H(1), 36(2), 36(2A), 473CB, 473CC, 473DB(1), 473DD(a), 473DD(b), 474, 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2

Cases cited:

BDE16 v Minister for Immigration and Border Protection [2019] FCA 816

Craig v South Australia (1995) 184 CLR 163

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

US17 v Minister for Immigration and Border Protection [2020] HCA 37

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

56

Date of hearing:

2 September 2024

Place:

Melbourne

Solicitor for the Applicant:

Self-represented litigant

Counsel for the First Respondent:

Mr Lessing

Solicitor for the First Respondent:

Australian Government Solicitor

Second Respondent:

Submitting appearance save as to costs

ORDERS

MLG 252 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ALS18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE J YOUNG
DATE OF ORDER:	13 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2.The Application filed 1 February 2018 be dismissed.

3.The Applicant pay the First Respondent’s costs fixed 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 J YOUNG:

1. Before the Court is an Application filed on 1 February 2018, in which the applicant seeks judicial review of a decision of the second respondent dated 9 January 2018. That decision affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (Visa).

   CONTEXT

2. The applicant is a citizen of Sri Lanka.

3. On 13 October 2012, the applicant arrived in Australia as an unauthorised maritime arrival.

4. On 7 December 2015, the Department of Immigration and Border Protection (Department) sent the applicant an invitation to apply for a Temporary Protection visa or Save Haven Enterprise visa.

5. After requesting and being granted a number of extensions, the applicant applied for the Visa on 21 February 2017. The applicant provided a statutory declaration, identity documents and country information as a part of his Visa application.

6. On 6 March 2017 the Department acknowledged the Visa application and on 27 April 2017 the applicant was invited to attend an interview to discuss the Visa application. The interview took place on 17 May 2017.

7. On 1 June 2017, the Delegate refused to grant the applicant the Visa. The Delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under s 36(2) of the Migration Act 1958 (Cth) (Act).

8. On 6 June 2017, the Delegate’s decision was referred to the Immigration Assessment Authority (Authority) for review.

9. On 27 June 2017, the applicant’s newly appointed migration agent emailed the Authority and provided written submissions and a purported medical note.

10. On 9 January 2018, the Authority affirmed the decision under review.

    Applicant’s protection claims

11. The applicant’s protection claims were set out by the Authority in its decision at paragraph [12]. In summary:

    ·the applicant is a Sri Lankan Tamil of the Hindu religion, from a northern area of Sri Lanka under LTTE control. His mother and younger siblings still live in Sri Lanka;

    ·three of his uncles, who have lived in Switzerland for over 20 years, were members of the LTTE and helped the LTTE financially;

    ·in 1996 when he was nine years old, he was injured by shrapnel from a bomb blast by the army. The applicant fears that these marks would be interpreted as scars from being an LTTE fighter;

    ·in 2007, when he was 20 years old, his parents sent him to India so that he would be safe from being recruited by, and associated with, the LTTE. He returned to Sri Lanka after three months and his visa extension application was rejected. The Indian authorities were arresting people they suspected of being LTTE members who were trying to flee to western countries from India;

    ·when he returned from India through the airport, the applicant was taken into custody by the Criminal Investigation Department (CID) for three days. The CID questioned him about his travel to India, his family, and his uncles who live in Switzerland. The applicant’s aunt organised his release from the CID with a $3,000 payment;

    ·he told his uncles about being questioned by the CID, and his uncles told him to leave Sri Lanka, as they believed that because of their connection to the LTTE he would be subject to harm. He planned to travel to France via Qatar, for which he needed a passport. He bribed the CID to let him travel to Colombo. His uncles sent him money to help him leave the country;

    ·in December 2007 he went to Qatar. He was not able to travel on to France so he lived and worked in Qatar for five years;

    ·in 2008 his father died during the war. His father helped dig trenches and fix fences for the LTTE;

    ·in 2008 his cousin, who was a member of the LTTE, was taken by the army and has not been seen since;

    ·while in Qatar he attended Great Heroes Day, which is a memorial for the fallen LTTE soldiers. He helped organise this memorial by collecting money for flowers, many of the friends he made in Qatar were LTTE members, and he gave money to the LTTE;

    ·in March 2012 he was sent back to Sri Lanka because he overstayed his visa. When he arrived at the airport the CID questioned him about where he had been. The CID also came to his house on three separate occasions to question him. On one of these occasions they broke into his house and made him go to the army camp. They had guns and were intimidating and threatening. They questioned him about providing support to the LTTE movement, asked where he had been for five years, and how he travelled without a passport. He was interrogated at the army camp and released after one day, on the condition that he did not leave the village;

    ·he was fearful and went into hiding, he travelled to the nearby city and stayed with his aunt. He heard about a trip organised to take people to Australia and left for Australia in September 2012;

    ·in around September 2016, the CID searched his house in Sri Lanka looking for him. They took his brother and interrogated him, asking him about where he was. His brother was assaulted by the CID and went to the hospital for his injuries. He paid a bribe of $4,350 so they would leave him alone. Since his departure, his family have been unable to leave their village;

    ·he fears the CID, other Sri Lankan authorities, and paramilitary groups on return to Sri Lanka. He fears being detained, interrogated, tortured and killed. He fears being injected with poison while being detained and the poison will kill him within five years. He says the CID is aware that he sent money to the LTTE from Qatar, and that his family were members and supporters of the LTTE. He will be denied protection because he is Tamil and because it is believed he is a member or supporter of the LTTE;

    ·as he will be returning from Australia the CID will suspect that he has made links with the diaspora that continues to support the idea of a separate state;

    ·there is racial discrimination in Sri Lanka. He could not live in the Sinhalese dominated south of the country where people will be suspicious of him, and may report him to the authorities because he is a Tamil from the north;

    ·he has been experiencing mental illness since approximately May 2016 because he is worried about his life and what will happen to him if he is returned to Sri Lanka. The applicant says that he has self-harmed twice, and that he has talked to a medical practitioner about these issues.

    AUTHORITY’S DECISION

12. In the written submission provided to the Authority, the applicant made new claims including that he had voluntarily joined the LTTE, trained with them for three months and worked gathering intelligence in Colombo for the LTTE, and as an LTTE fundraiser in Qatar. The applicant also provided new country information and a medical note.

13. In its decision the Authority considered the applicant’s explanation for not providing the new information and claims earlier. It outlined the opportunities the applicant had to advance the claims and concluded that if the claims were true they could have been provided earlier. The Authority was not satisfied that there were exceptional circumstances for considering the country information or the medical note.

14. The Authority accepted a number of the applicant’s claims. It accepted that the applicant had three uncles living in Switzerland, it accepted that the applicant had been injured by shrapnel from a bomb blast when he was nine years old. It also found that the applicant had travelled to India to protect himself from being recruited by or associated with the LTTE. However, the authority did not accept that the applicant’s uncles were active with the LTTE, that the applicant returned to Sri Lanka from India, nor that he was detained by the CID from his return to India and that a bribe was paid for his release. Rather, the Authority found that the applicant travelled from India to Qatar, that his passport was taken while he was in Qatar, and that he was forcibly removed back to Sri Lanka in March 2012.

15. The Authority also found that while the applicant was in Qatar, he donated some money to the LTTE when collections were made at his workplace and that he collected money for flowers. However, the Authority found that the applicant was a passive financial contributor, and that the CID would not have had any knowledge of his financial contributions.

16. Whilst the Authority accepted the applicant’s claims in relation to his father and cousin’s involvement with the LTTE, it found that his father’s assistance to the LTTE was low level. It also accepted that the applicant was questioned by the CID on his return from Sri Lanka, but found that he was not of any real interest to the Sri Lankan authorities, including the CID and the army. The Authority also accepted that the applicant was questioned and visited at his home in his village after his return to Sri Lanka, that the army/CID used force on at least one occasion to enter the applicant’s home, and that he was required to report at the army camp. However, it found that he was released because the authorities had no further interest in him.

17. With respect to the applicant’s brother, the Authority accepted that he was questioned in 2016, was assaulted, hospitalised, and that he paid a bribe so he could be left alone. However, it did not accept that the CID was behind this, rather, that the applicant’s brother was the subject of extortion.

18. The Authority also considered the applicant’s claims and whether there is a well-founded fear of persecution. It found that there was not a real chance that the applicant would be persecuted by reason of his Tamil ethnicity or an imputed political opinion in connection with the LTTE. With reference to country information, the Authority noted the improved security situation in the north of Sri Lanka and found that the applicant could return home, and that while he may have a subjective fear of returning that fear was not well founded.

19. The Authority then assessed the complementary protection criterion in s 36(2)(aa) of the Act. The Authority accepted that the applicant would likely be questioned and detained for a short period of time upon arrival in Sri Lanka as he had departed Sri Lanka unlawfully in September 2012. However, it was not satisfied that the applicant would suffer the death penalty, arbitrary deprivation of life or torture, nor that the penalties he might face for unlawful departure would amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment. Accordingly the Authority did not accept that there are 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 he will suffer significant harm.

20. Accordingly, the Authority affirmed the decision not to grant the applicant the Visa.

    APPLICATION FOR JUDICIAL REVIEW

21. The applicant applied for judicial review of the Authority’s decision on 1 February 2018.

22. The Application contains the following ground for judicial review (without amendment):

    1.        The decision of the Second Respondent:

    a.Was made without jurisdiction or is affected by jurisdictional error (Ground (a));

    b.        failed to take into account relevant considerations (Ground (b));

    c.        Is otherwise contrary to law (Ground (c)).

    Particulars/Details

    Particulars/Details will be provided in accordance with directions of the Court.

23. The applicant also filed an affidavit on 1 February 2018 which annexed a copy of the Authority’s decision. The applicant was not legally represented at the time of filing the Application, however became legally represented on 23 June 2020.

24. Orders were made on 24 May 2024 listing the Application for hearing and for the applicant to file and serve written submissions, any additional evidence and any Amended Application by 5 August 2024. Orders were also made for the Minister to file written submissions, a list of authorities and any additional evidence by 19 August 2024.

25. On 24 May 2024, a notice of listing, attaching a copy of the Orders made on the same date, was sent to the applicant’s legal representative and the Minister’s legal representative.

26. On 22 July 2024, the applicant’s legal representative filed a Notice of Withdrawal.

27. The applicant did not file any Amended Application or any material by 5 August 2024 in accordance with the Orders made on 24 May 2024, or at all.

28. The Minister filed a Response on 26 February 2018. The Response seeks that the application be dismissed on the ground that the Authority’s decision is not affected by jurisdictional error.

29. The Minister also filed written submissions and a list of authorities on 20 August 2024.

    The Hearing

30. The hearing took place on 2 September 2024. The applicant is self-represented and was assisted by an interpreter in the Tamil and English languages at the hearing.

31. At the hearing, the applicant was invited to elaborate on the ground for review contained in the Application. In particular, the applicant was invited to identify:

    ·how he said that the decision of the Authority was made without jurisdiction;

    ·what the asserted jurisdictional error is;

    ·what relevant considerations the Authority failed to take into consideration; and

    ·how the decision is contrary to law.

32. The applicant was unable to particularise or further articulate the above grounds. However, the applicant made the following oral submissions:

    ·he was unable to obtain documents to provide to the Authority in relation to his arrest and questioning by the CID in 2012 (First Oral Claim);

    ·the Authority did not consider documents which demonstrated that his brother had been abducted by the CID (Second Oral Claim);

    ·the Authority failed to consider that the applicant had shrapnel in his leg and because of that he would be considered an LTTE supporter (Third Oral Claim)

    (collectively, Oral Submissions).

    STATUTORY FRAMEWORK

33. A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].

34. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].

    CONSIDERATION

    Ground (a)

35. By this ground, the applicant asserts the Authority’s decision was made without jurisdiction or is affected by jurisdictional error.

36. This ground is entirely unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24].

37. The Authority had jurisdiction to affirm the delegate’s decision under s 473CC of the Act.

38. The Authority’s treatment of the new information was consistent with the approach set down by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37. In assessing both the new claims at paragraphs [8]-[9] and the new information at paragraph [10], the Authority correctly considered both limbs of s 473 DD(b) before turning to consider s 473DD(a).

39. Ground (a) discloses no jurisdictional error on the Authority’s behalf.

    Ground (b)

40. By this ground, the applicant asserts the Authority’s decision failed to take into account relevant considerations.

41. The Authority was required to consider each of the applicant’s claims and their essential integers. A fair reading of the decision indicates that it did so.

42. Ground (b) discloses no jurisdictional error on the Authority’s behalf.

    Ground (c)

43. By this ground, the applicant asserts that the Authority’s decision is contrary to the law.

44. The Authority identified and applied the correct statutory provisions, including s 36(2)(a) and s 5H(1) in relation to the refugee criterion, ss 36(2)(aa) and 36(2A) in relation to the complimentary protection criterion, and followed the natural justice requirements set out in Division 3 of Part 7AA of the Act. There is no basis to conclude that the Authority’s decision was otherwise contrary to law.

45. Ground (c) discloses no jurisdictional error on the Authority’s behalf.

    Oral Submissions

46. As to the Oral Submissions, for the following reasons, they also do not disclose any jurisdictional error on the Authority’s behalf.

47. As to the First Oral Claim, firstly, pursuant to s 473DB(1) of the Act, the Authority must review a fast review decision referred to it by considering the review material provided to the Authority under s 473CB without accepting or requesting new information. Secondly, at paragraph [23] of its decision the Authority accepted that the applicant was questioned by the CID and the army on his return to Kilinochchi in March 2012. It accepted that the applicant was questioned twice at his home and once at an army camp.

1. As to the Second Oral Claim, firstly, the Authority considered whether, pursuant to section 473DD, it would consider a copy of a medical note for the applicant’s younger brother. This was not before the delegate and therefore could only be considered if the Authority was satisfied that the provisions of s 473DD were met. As set out above, the Authority correctly applied those provisions and on that basis did not consider that information. No error is demonstrated in the Authority’s approach. Further, and in any event, at paragraph [27] of its decision the Authority accepted that in around September 2016 people came to the applicant’s family home and took his brother and questioned him. It also accepted that the applicant’s brother went to hospital for his injuries and paid a bribe of $4,350 AUD so that he would be left alone.

2. Finally, as to the Third Oral Claim, at paragraph [15] of its decision the Authority accepted that in 1996 when the applicant was nine years old, he was injured by shrapnel from a bomb blast by the army. The Authority found that the applicant’s account of the bomb blast which occurred after they had been displaced from fighting, how all pieces of the shrapnel were removed from his leg and the long-term impact on his mobility and strength were convincing. However, at paragraph [29] the Authority said:

   … In relation to the applicant’s scar on his leg from the bomb blast when he was nine years old, whether this is seen as an indication that the applicant fought with the LTTE or not, I do not think this will cause the Sri Lankan authorities to take an interest in the applicant’s I find that the applicant was not any interest to the Sri Lankan authorities for real or perceived connections with the former LTTE before he departed for Australia in September 2012.

3. Accordingly, contrary to the applicant’s assertion, the Authority did not fail to consider that shrapnel in the applicant’s leg would result in him being considered an LTTE supporter. Rather, it accepted that the applicant had suffered such an injury but did not find that this would result in the applicant being of any interest to the Sri Lankan authorities for his actual or perceived connections with the former LTTE.

4. For completeness, at the hearing the applicant raised that the Authority had accepted claims in relation to his brother and also had accepted that the applicant had been questioned by the CID. If it be suggested by these submissions that the decision of the Authority is therefore illogical or irrational, I also reject that submission. Firstly, it fails to identify that while the authority accepted that the applicant’s brother had been taken, questioned and assaulted, it did not accept that this was at the hands of the CID. Its reasons for that conclusion are set out at paragraph [27] of its decision. That conclusion was reasonably open to the Authority on the evidence before it. Secondly, whilst the Authority accepted that the applicant was questioned by the CID upon his arrival at the airport from Qatar, it did not accept that the CID or any other body or authority had any interest in the applicant for connections with the LTTE, saying at paragraph [22] of its decision:

   … It is consistent with country information from around that time that the CID would have questioned the applicant at the airport. However, I consider the CID, State Intelligence Service (SIS) or Terrorist Investigation Department (TID) had any interest in the applicant, he would have been detained and questioned for much longer, given reports of the use of former Tamil Tigers stationed at airports assisting authorities with the screening process and the routine criminal history checks.

5. That conclusion was reasonably open to the Authority on the evidence before it. Finally, as to the further questioning of the applicant by the CID on his return home to his village in March 2012, while the Authority accepted this happened, it found that the applicant was released because the army/CID had no further interest in him. At paragraph [24] of its decision the authority said:

   I find the applicant was not of any real interest to the Sri Lankan authorities, the army or the CID when they first made their inquiries of the applicant after he returned home in March 2012, and he did not become of any interest after questioning on several occasions.

   Based on information from the UNHCR in 2012, I consider that if the army and CID had an interest in the applicant for real or suspected LTTE connections beyond monitoring and harassment of Tamils in the north of Sri Lanka, if they considered him to be a threat to national security, then the applicant would have been sent to a rehabilitation camp like the 11,600 persons with alleged links to the LTTE (mostly former combatants, but also drivers, cooks and other aides), which were still operational, or detained for more than a day, and / or arrested and charged. However, none of these things happened.

6. Accordingly, the Authority sets out clear and intelligible reasons for its conclusions, which were reasonably open to it on the evidence before it.

7. No jurisdictional error on the Authority’s behalf is demonstrated.

   DISPOSITION

8. For the reasons set out above, the Application must be dismissed.

9. The Minister seeks the applicant paid its costs in the amount of $8371.30. I note that this is in accordance with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       13 September 2024