AOJ18 v Minister for Home Affairs

[2018] FCCA 1728

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOJ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1728

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority erred in not accepting the applicant’s claims – whether it was legally unreasonable for the Authority to not give the applicant an opportunity to comment – whether the Authority failed to make findings concerning integers of the applicant’s claims – whether the Authority erred in construing the meaning of “serious harm” – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5H, 36, 473BC, 473DA, 473DC, 476

Applicant: AOJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 300 of 2018

Judgment of: Judge Street

Hearing date: 29 June 2018

Date of Last Submission: 29 June 2018

Delivered at: Sydney

Delivered on: 29 June 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser
On a direct basis

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: MinterEllison

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 5 June 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 300 of 2018

AOJ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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”) under Part 7AA of the Act made on 15 January 2018 affirming a decision of 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. The applicant arrived in Australia on 12 October 2012 as an unauthorised maritime arrival. The applicant was found to be a Tamil from the Jaffna region.

3. The applicant claimed to fear harm from the Sri Lankan authorities because he would be imputed with a Liberation Tigers of Tamil Eelam (“LTTE”) profile. The applicant also claimed to fear harm by reason of his illegal departure from Sri Lanka and by reason of being a failed asylum seeker as well as a person who had a mental health condition.

4. On 24 October 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. On 27 October 2017, the Authority wrote to the applicant identifying that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The Authority acknowledged the applicant’s mental state as evidenced in a psychologist’s report, including the referred materials and found, despite not concluding that the applicant was not a credible witness, that his evidence was, nevertheless, unreliable. The Authority accepted much of the applicant’s account of his background, including that one of his brothers was killed in 1987, that his parents regularly attended Martyrs’ Day events, that the applicant was arrested and detained in 1998 and forced to sign documents he did not understand, that he was tortured while detained and required hospital treatment and ongoing counselling after his release, and that he has been estranged from his family since his marriage.

3. The Authority did not accept the applicant’s siblings were involved in the LTTE, that the ongoing monitoring that the applicant was subjected to pointed to the authorities imputing him with an LTTE profile, that the applicant was of any adverse interest to the authorities at the time of his departure from Sri Lanka, or that he had been beaten by the Criminal Investigation Department (“CID”) in 2002. The Authority did not accept the applicant had been or would be imputed with an LTTE profile. Further, the Authority did not accept, by reference to country information, the applicant’s profile that he would face harm due to his Tamil ethnicity or due to suspected involvement with the LTTE or because of his being a failed asylum seeker.

4. The Authority accepted the applicant would, on return to Sri Lanka, be detained and questioned at the airport, but on the basis of country information, found the applicant would not be exposed to serious harm. The Authority found the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act 1948 (Sri Lanka) would be the result of a law of general application.

5. Having considered the applicant’s claims individually and cumulatively, the Authority, in respect of the applicant’s ethnicity, his familial links to the LTTE members/supporters, being from a former LTTE controlled area, his illegal departure from Sri Lanka, his scars, being a failed asylum seeker, being absent for a significant period of time, and his mental conditions, was not satisfied that there is a real chance the applicant would experience harm in the foreseeable future.

6. The Authority, in its reasons, incorporated the relevant law as an attachment to the reasons. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the amended application are as follows:

   1. One of the applicant's claims was that in May or July 2012 a group of people who spoke Sinhala came to the applicant's home armed with chains and beat the applicant. The Immigration Assessment Authority (“the IAA”) found in paragraph 23 of its decision that "I do not accept that the applicant was beaten by the CID or others at his home in May 2012". The IAA provided a reason for its finding that the CID did not attack and beat the applicant at his home in May 2012. However, the IAA provided no reason for its finding that persons other than the CID did not carry out the attack. In the circumstances, the IAA fell into jurisdictional error in not accepting that the applicant was beaten by 'others at his home in May 2012.

   2. The Minister's delegate accepted that ' the applicant may have been the victim of an attack in his home in Puthukkulam in May 2012". The IAA, in contrast, did not accept that the attack occurred. The applicant s claim that he was attacked in his home in May 2012 was significant and material to the applicant's claims. The IAA, in reversing the finding by the Minister's delegate in the applicant's favour concerning the attack, without exercising its power in s 473DC to give the applicant an opportunity to comment, involved conduct by the IAA which was legally unreasonable. This was a jurisdictional error.

   3. In about June 2012 the applicant travelled lawfully from Sri Lanka to India. A consistent aspect of the applicant's claim concerning travelling from Sri Lanka to India was that the authorities only permitted one family member to travel. This would appear to suggest the authorities had a continuing interest in the applicant at the time. The IAA failed to make a finding concerning this aspect or integer of the applicant's claims. This was a jurisdictional error.

   4. The IAA accepted that the applicant has serious mental health problems. The IAA also accepted that the applicant may face some societal discrimination on his return to Sri Lanka, but the level of discrimination would not amount to "serious harm" within the meaning of s 5J(4 )(b) of the Migration Act: paragraph 42. In light of a report from a psychologist and other evidence before the IAA concerning the applicant's significant mental health problems in 2017, this finding by the IAA involved jurisdictional error for reasons including the following:

   a) The question of whether the applicant might suffer “serious harm” on return to Sri Lanka requires a consideration of the applicant's current circumstances, including his current mental health. The IAA, in paragraph 42 of its decision, failed to have regard to the psychologists report or the applicant s current mental health in considering whether the applicant might face “serious harm” on return to Sri Lanka.

   b) What constitutes “serious harm” is not an entirely objective test, but may turn in part on an applicant's personal or subjective circumstances. The applicant had significant mental health problems which might affect the impact on him of discrimination against Tamils in Sri Lanka. The IAA failed to take the applicant's mental health problems into account in finding that the applicant would not face “serious harm”. The IAA erred in construing the statutory term “serious harm”.

Ground 1

1. In relation to ground 1, Mr Zipser of counsel on behalf of the applicant took the Court carefully to the evidence that the applicant had given in respect of an alleged incident which the applicant had referred to as occurring in May 2012, and had also referred to it occurring in July 2012 after the applicant returned from India. Mr Zipser focussed on the Authority’s reasons in paragraph 23 and contended that there was no proper basis for the finding rejecting the applicant’s evidence that he had been beaten at his home in May of 2012. Mr Zipser referred to the finding by the Authority referring to the CID or others in rejecting the applicant’s claim in this regard.

2. Mr Zipser took the Court to the different versions of the incident that had occurred that had been provided by the applicant, including in the entry interview record where he referred to being attacked in his home on 28 May 2012, but did not know who they were, and to the applicant’s statement accompanying his Safe Haven Enterprise visa application that after returning from India on about 13 July 2012, an unknown person came to his house and “beat up me and my family”.

3. Mr Zipser referred to the oral evidence of the applicant at the Safe Haven Enterprise visa interview on 13 August 2017, in which there was a reference to, “on 28 May 2012 some unknown armed persons (about 6-7 persons) came to his home… and harassed him and his wife and child,” and that the applicant was assaulted, including beaten with a chain and that night the applicant went to hospital for treatment and he was hospitalised for two days and the applicant believes the unidentified men who attacked him were from the CID. Mr Zipser also referred to a post hearing supplementary statement in which the applicant said, “in 2012 unknown individuals came to my house and assaulted me. Even though they were wearing plain clothes, I suspected they were with the CID,” and in respect of which, the applicant alleged he sustained grievous wounds.

4. The Authority in its reasoning, whilst identifying that the applicant was not one whose overall credibility was being rejected, found the applicant had given evidence that was the subject of concern in respect of the account of events in 2012, which the Authority found was not reliable. The Authority, in that regard expressly referred to taking into account country information and also taking into account the want of plausibility of the stated events advanced by the applicant. The Authority’s reasoning in paragraph 23 rejected that there was any attack in July 2012 and turned to consider whether the applicant was attacked in May 2012. The Authority referred to the applicant’s belief as to who the assailants were and that there was no indication that they identified themselves.

5. The Authority expressly found it was difficult to accept that the CID would come to the applicant’s home to beat the applicant, noting that the applicant claims he had been reporting regularly to the authorities at that time. The Authority referred to the applicant’s speculation that perhaps he was visited by the CID because some schoolmates and friends had been involved with the CID. The Authority expressly referred to finding this to be implausible, as at this stage the war had been over for three years and the CID had ample opportunity over that time to question the applicant about his friends. The Authority referred to the further speculation that the applicant’s friends “had just come on to the CID’s radar”, but found this to be implausible in that the CID did not question him about these friends during one of his reporting sessions, but instead decided to visit and beat him at his home.

6. The Authority referred to the authorities having access to the Prevention of Terrorism Act (“PTA”) in 2012 and that this provided them with wide powers to detain suspects for questioning. In that context, the Authority observed that if the CID were concerned about the LTTE connections of the applicant’s friends they would have questioned the applicant and would have accessed the PTA to detain the applicant while doing so. The Authority found that there is no indication that any other incident occurred at this time or that there was any other reason for the authorities to escalate their interests in the applicant beyond the already in place regular reporting and questioning. It was in the context of these findings that the Authority found that it was difficult to accept that the CID had reason to beat the applicant in May 2012 and yet give him permission to travel to India the next month. The Authority then found on the basis of those reasons that it did not accept that the applicant was beaten by the CID or others at his home in May 2012. That was an adverse finding that was open to the Authority for the reasons given by the Authority and cannot be said to be illogical or unreasonable.

7. The Authority then referred to taking into account the plausibility of events in the context of making adverse findings in respect of particular events. Mr Zipser submitted that whilst it may have been open to the Authority to reject that the applicant was beaten by the CID, the Authority provided no reasoned basis for rejecting the finding that the applicant had been beaten at his home at all, at least by others, and relied upon the references referred to above. It is apparent that the applicant’s claim was one to fear harm by reason of an incident in which the CID were involved. That is, in substance, the submission that was advanced on behalf of the applicant to the Authority in the submissions dated 18 September 2017.

8. The finding of implausibility of the authorities having an interest in attending the applicant’s home and beating the applicant, and the implausibility of the applicant’s explanation for that interest, and the Authority’s reasons identifying that there was no such incident in July 2012, and that the Authority considered whether there was any such incident in May 2012 taking into account the subsequent travel to India, reflect a logical and rational reasoning process and was dispositive of the whole of the applicant’s claim. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Zipser submitted that the delegate had accepted that the applicant had been beaten but had found that it was a random criminal event and submitted that the Authority, as a matter of reasonableness, should have invited the applicant to comment or attend an interview under s 473DC of the Act before finding that no such incident occurred. Part 7AA of the Act is one under which, subject to certain provisions, the Authority must review the reviewable material without accepting or requesting new information and without interviewing the referred applicant. Section 473DA of the Act expressly excludes the natural justice hearing rule. Whilst I accept there will be circumstances, as has been identified in a number of decisions, where it is legally unreasonable for the Authority not to exercise its powers under s 473DC of the Act, this is not a case where, as a matter of legal unreasonableness, the Authority could not depart from the finding by the delegate in relation to whether the applicant was beaten at all rather than by unknown persons in May of 2012. It was not necessary as a matter of reasonableness for the Authority to expressly consider the power under s 473DC of the Act in this regard.

2. The applicant was not entitled to an opportunity to comment on the preliminary views of the Authority or to an invitation to attend an interview or invitation to comment on adverse information that did not enliven any obligation under s 473DE of the Act, and which was not a material departure from the nature of the case that had been conducted before the delegate. It was not unreasonable for the Authority to draw its own conclusions based on the findings made as to whether or not the incident alleged by the applicant occurred in May 2012. It was not legally unreasonable for the Authority not to expressly consider and not to exercise its powers under s 473DC of the Act. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Zipser submitted that the applicant had advanced a claim that the authorities had interest in him because it would only let one person travel to India and that this was a claim that arose on the material and should have been the subject of a finding by the Authority. The context in which this was advanced was the applicant’s statement that referred to the incident in 2012 and then deciding to apply for passports for the whole family and the applicant being asked to attend the CID in order to get the signature. The applicant said that he was asked why he was leaving and that the applicant said he was going to visit his sick mother-in-law in India. The applicant was informed that the CID would approve the applicant’s visit, however they would hold onto his family ID card. The authorities said that they would return this card on the applicant’s return and that only one of the applicant’s family could go to India, either the applicant or his wife. It was in that context that the applicant identified that his wife asked him to go.

2. The reference to the applicant not being able to depart other than on his own does not support there being a claim or integer of a claim as alleged in ground 3. The applicant did not advance any such claim that the CID imposed particular travel restrictions on his family due to an adverse interest in him. To the contrary, the CID permitted the applicant to travel to India and then later to depart for Australia, and the applicant’s family travelled at different times.

3. There was no failure to make a finding on an aspect or integer of the applicant’s claims as no such claim as alleged in ground 3 was expressly made or fairly arose on the material before the Authority. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Zipser submitted that the Authority misapplied the meaning of serious harm in the context of determining the applicant’s claims under the Refugee Convention. Mr Zipser referred to the psychologist’s report and, in particular, the findings of the Authority in paragraphs 42 and 50. Mr Zipser also drew the Court’s attention to the dot-point summary by the Authority in the last two dot-points on page 257 of the Court Book and reference to the applicant, because of a mental illness, having been taunted and fearing being an outcast. Mr Zipser referred to serious harm as not being an entirely objective test and that it turns upon the applicant’s personal subjective circumstances. It is apparent from the Authority’s reasons that the Authority took into account the applicant’s personal and subjective circumstances given the express reference in paragraph 42 to the applicant’s concern in respect of being an outcast or being discriminated against.

1. On a fair reading, the Authority took those matters into account in respect of the applicant’s mental condition and made adverse findings that were open to the Authority and did not reflect any erroneous understanding or misapplication of the meaning of serious harm. There is no substance in the contention that the Authority asked itself the wrong question when it came to assessing the prospect of the applicant encountering serious harm in Sri Lanka on return in the reasonably foreseeable future. The Authority was plainly aware of and took into account the applicant’s mental state and the evidence and submissions that the applicant adduced to the delegate in respect of that matter.

2. The Authority also gave express consideration to the applicant’s mental condition in the context of complementary protection. What constitutes serious harm under the Act is defined in s 5H(1)(a) of the Act and it is apparent that the Authority understood this term by reference to its reasons at paragraph 42. The Authority concluded that the level of societal discrimination the applicant would face on return to Sri Lanka would not amount to serious harm, including by reason of a denial of access to basic services or denial of capacity to subsist, or to earn a livelihood that threatens the applicant’s capacity to subsist.

3. It was the Authority’s task to determine whether the applicant had a well-founded fear of persecution. On the face of the Authority’s reasons, the Authority did not misconstrue the statutory provisions in determining whether or not the applicant’s mental condition met the statutory criteria. No jurisdictional error as alleged in ground 4 is made out.

Conclusion

1. As the amended application failed to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  10 August 2018