AOK17 v Minister for Immigration
[2019] FCCA 1263
•14 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOK17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1263 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority brought an independent and impartial mind to the determination of the matter on the merits – whether the Authority considered the applicant’s claims and evidence – whether the adverse findings were open to the Authority – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476 |
| Applicant: | AOK17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 76 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 14 May 2019 |
| Date of Last Submission: | 14 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2019 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Ms B Rayment Sparke Helmore |
ORDERS
The name of the First Respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs” and the Court dispenses with the need for the filing of any document in this regard.
The Application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5,500.00.
DATE OF ORDER: 14 May 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 76 of 2017
| AOK17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 7 February 2017, affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 19 October 2012. The applicant was found to be a Tamil male from the Jaffna District in the Northern Province.
The applicant, in summary, claimed to fear harm by reason of his ethnicity and origin and that he would be imputed to be a Liberation Tigers of Tamil Eelam (“LTTE”) sympathiser because of his brother-in-law, who has been missing since 2006, and that he would be returning as a Tamil failed asylum seeker.
On 18 April 2016, the applicant lodged the application for a Safe Haven Enterprise visa. The applicant provided a statement in support of the application for the visa.
On 9 December 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
On 15 December 2016, the Authority wrote to the applicant explaining 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.
By email sent on 10 January 2017, the applicant requested a further two weeks to submit information to the Authority. The Authority responded on the same day identifying that the applicant had until 18 January 2017 to provide further information or submissions. No new information or submissions were provided by the applicant to the Authority.
The Authority in its reasons identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority also took into account the most recent Department of Foreign Affairs and Trade country information report for Sri Lanka dated 24 January 2017.
The Authority summarised the applicant’s claims and in particular that, in 2006, the applicant was detained for one day and the applicant was required to report to the Sri Lankan Army (“SLA”) camp thereafter.
The Authority in its reasons expressly referred to the delegate asking the applicant when the last time was the SLA made inquiries about him and that the applicant responded it was “four months ago”. The applicant referred to the authorities asking his wife where he was and showing her a picture of the applicant to which she replied the applicant had gone to Colombo and that the soldiers then left.
The Authority noted the Safe Haven Enterprise visa application was lodged in April 2016 and that the applicant’s accompanying written statement did not claim that soldiers had been to his house since his departure from Sri Lanka. It was in those circumstances the Authority did not accept as plausible that, four months before the applicant’s Safe Haven Enterprise visa interview, the SLA would resume interest in him for the first time since he departed Sri Lanka in September 2012. The Authority found the applicant had fabricated this claim to strengthen his application for protection.
The Authority referred to the applicant’s claim that he stopped reporting to the SLA camp at the beginning of 2012 because he feared for his safety and that he departed Sri Lanka in September 2012 by boat. The Authority identified inconsistencies between the versions of events given by the applicant and in particular that the applicant was able to run his business while hiding in the family home and found this detracted from the applicant’s overall credibility.
The Authority accepted the applicant was detained as part of a larger group of male Tamil residents for one day in 2006. The Authority accepted that the applicant’s brother-in-law has been missing since then and is presumed dead and may have supported the LTTE. The Authority also accepted that, following the daylong detention, the applicant was ordered to report to the SLA camp fortnightly and then monthly. The Authority found the pattern of attendance reflects the SLA having a declining interest in the applicant. Taking into account the discrepancies and implausibilities in the applicant’s account, as well as the end of the civil war in 2009, the Authority found the applicant’s reporting requirements ceased prior to his departure for Australia in 2012.
The Authority was not satisfied the applicant is at risk of harm because he and his family are Tamils who lived in an LTTE controlled area during the war or because of his particular home town being of significance to the LTTE. The Authority took into account that, whilst the applicant’s brother-in-law may have supported the LTTE, the Sri Lankan authorities had many opportunities to question the applicant about this during the time he regularly reported to the Sri Lankan authorities but the applicant confirmed they never did. The Authority found that it did not consider the Sri Lankan authorities imputed the applicant with a pro-LTTE opinion because of his brother-in-law. Whilst accepting that the applicant had been detained and was the subject of reporting requirements, the Authority concluded that these had ceased at the time of his departure from Sri Lanka.
The Authority found the applicant is not a person of interest to the Sri Lankan authorities and was satisfied that there is no real chance that the applicant will suffer harm on the basis of his Tamil ethnicity or by reason of actual imputed links to the LTTE.
The Authority referred to the applicant’s illegal departure and referred to country information indicating that the intention of the Immigrants and Emigrants Act (Sri Lanka) is not discriminatory, nor do the Sri Lankan authorities apply it in a discriminatory manner, and that it is a law that applies to all Sri Lankans.
The Authority found the treatment the applicant will face as a consequence of the application of the Immigrants and Emigrants Act (Sri Lanka) is not persecution within the meaning of s 5J(4) of the Act.
The Authority was not satisfied there is a real chance the applicant would face harm on his return as a returned Tamil asylum seeker who departed Sri Lanka illegally either, now or in the reasonably foreseeable future.
The Authority was not satisfied the applicant had a well-founded fear of persecution due to his Tamil race, any imputed pro-LTTE political opinion arising from his brother-in-law’s possible support for the LTTE, the applicant’s residence in the Northern Province, his previous interaction with the Sri Lankan authorities or his potential status as a returning Tamil asylum seeker who departed illegally either now or in the reasonably foreseeable future. The Authority found the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act.
The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.
The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
These proceedings were commenced on 12 February 2017. On 24 May 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. The applicant did provide submissions that were annexed to his affidavit filed on 12 February 2017 and was granted leave to file in Court a document that was marked Exhibit B containing further submissions by the applicant.
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.
From the bar table, the applicant asserted that he had told the delegate that the Criminal Investigation Department (“CID”) came to his house. When the Court asked the applicant when that occurred, the applicant could not identify a time. The applicant indicated that it was information from his wife. It is apparent from the Authority’s decision that the applicant did assert the SLA came to his house four months before the protection visa interview.
The Authority rejected the applicant’s claims in that regard on the grounds of implausibility. That adverse finding was open to the Authority and cannot be said to lack an evident and intelligible justification. The applicant’s statement makes no reference to the CID coming to his house. The Court does not accept that there was a claim advanced by the applicant that the CID came to his house, and nor on the material before the Court does such a claim fairly arise. A claim that does not fairly arise and was not made to the Authority cannot give rise to any relevant error.
The applicant otherwise put submissions from the bar table that identified disagreement with the adverse findings by the Authority. The adverse findings by the Authority were open for the reasons given by the Authority as summarised above. Nothing said by the applicant from the bar table identified any jurisdictional error.
The grounds
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
The bare assertion of jurisdictional error in ground 1 is not capable of itself giving rise to any relevant error. Insofar as the affidavit filed by the applicant is asserted to be particulars in support of that error, that affidavit asserts that the Authority did not take into account the whole of the evidence and the applicant’s personal situation.
It is apparent on the face of the Authority’s reasons that the Authority took into account country information in relation to the situation in Sri Lanka as well as the whole of the evidence and the applicant’s found circumstances. The applicant’s assertion that he has a well-founded fear of persecution in returning to Sri Lanka is, in substance, an invitation to this Court to engage in merits review. Nothing in the particulars to the affidavit affirmed on 12 February 2017 makes out any relevant jurisdictional error in relation to ground 1.
The Court has also taken into account the content of Exhibit B. Exhibit B, in essence, asks for a fresh inquiry and asserts that the Authority did not properly examine the evidence before it. There is no relevant evidence identified that the Authority did not take into consideration, and the applicant’s submissions in Exhibit B in substance amounts to an invitation to the Court to engage in merits review. This Court has no power to review the merits. Nothing said by the applicant in the applicant’s written submissions supports the existence of any error as alleged in ground 1. No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, bias is an allegation that must be properly pleaded and proved. No basis for the allegation of bias is identified. No material that was relevant and said to have been ignored has been identified. The bare assertion in ground 2 and the applicant’s submissions do not reveal any relevant error by the Authority.
The adverse findings by the Authority are not conduct by reason of which a fair-minded lay observed might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on the merits. On the material before the Court, there is nothing to suggest that the Authority did other than to approach the review with an open mind reasonably capable of persuasion as to the merits. No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, the bare assertion of a wrong issue on a wrong question does not of itself identify any relevant error. On the face of the material before the Court, the Authority correctly identified the relevant law and did not address any wrong question. The adverse findings by the Authority were open to the Authority for the reasons given by the Authority. No jurisdictional error is made out by ground 3.
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 31 May 2019
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