AOX17 v Minister for Immigration

[2017] FCCA 1881

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOX17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1881

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visa – the Authority complied with its statutory obligations in the conduct of the review – the Authority provided the applicant with an opportunity to put on new information and submissions – the Authority complied with its obligations of procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

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

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: AOX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 422 of 2017

Judgment of: Judge Street

Hearing date: 9 August 2017

Date of Last Submission: 9 August 2017

Delivered at: Sydney

Delivered on: 9 August 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 422 of 2017

AOX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 12 January 2017 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be of Tamil ethnicity. The applicant claimed to fear harm on account of his name which was similar to the LTTE leader’s name, his cousin being a LTTE member, his ethnicity, his status as a failed asylum seeker who left Sri Lanka illegally, and his conversion to Christianity. 

3. The applicant arrived in Australia on 26 October 2012 as an unauthorised maritime arrival. On 9 March 2016, the applicant lodged a valid application for a Safe Haven Enterprise visa. The delegate refused to grant the applicant a protection visa on 11 November 2016.

4. The delegate found the applicant was of no interest to the authorities and was not a committed Christian. The delegate found the applicant would not face harm in Sri Lanka for any reason. The delegate found the applicant failed to meet the criteria for the grant of a visa under the Act. 

The Authority

1. On 16 November 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority’s letter explained that there were only limited circumstances in which the Authority could consider new information. The Authority’s letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions.

2. The applicant contacted the Authority on 30 November 2016 by telephone. The Authority noted that the telephone conversation recorded the Authority explaining to the applicant the opportunity to put on submissions and new information. No such material was provided by the applicant.

3. The Authority in its decision identified the applicant’s visa background. The Authority identified having regard to the material referred to the Authority under s.473CB of the Migration Act. The Authority set out the applicant’s claims and set out the relevant law.

Refugee convention criteria assessment

1. The Authority referred to the applicant alleging an incident in 2010 and that he fled to Malaysia. The Authority noted that the applicant obtained a passport and a tourist visa in his real name and departed Sri Lanka via the airport in 2010 and returned 11 months later. The Authority was not satisfied that the Sri Lankan Army (“the SLA”) or any other government authority had any suspicion that the applicant was a member or supporter of the Liberation Tigers of Tamil Eelam (“the LTTE”) based only on his name.

2. The Authority made reference to the applicant’s concern in relation to his cousin being a combatant with the LTTE. The Authority noted the applicant had not visited his cousin for 10 years before his cousin’s death. The Authority noted the applicant was able to obtain a passport and visa, depart Sri Lanka, return to Sri Lanka and obtain a new passport. Taking into account those events, the Authority found that it was implausible the authorities would now have such an interest in the applicant. 

3. The Authority accepted that the applicant may be subject to random stops and identity checking, however the Authority found that such actions would not of themselves amount to serious harm. The Authority found the applicant has not been previously imputed with support for the LTTE due to his name and family links. The Authority found there is no evidence that the applicant is more likely to be imputed with support now. The Authority found the applicant is not at risk of serious harm on the basis of imputed support for the LTTE. 

4. The Authority made reference to the applicant’s concern in relation to leaving a SIM card with his wife. The Authority found it was implausible that the Criminal Investigation Division (“the CID”) had a specific interest in the applicant in circumstances where it was alleged his wife was telephoned and told to come into the office, and it was not followed up. The Authority was not satisfied the applicant is of any interest to the CID for any reason and found the applicant is not at risk of serious harm from the CID should he return to Sri Lanka. 

5. The Authority found the applicant does not face a real chance of serious harm on the basis of his attendance at the commemoration or future commemorations. 

6. The Authority referred to the applicant’s ethnicity and was not satisfied that the applicant has a profile that would distinguish him as a person of interest to the authorities. The Authority made reference to Sri Lankan Tamils facing difficulties, but found the difficulties or disadvantage the applicant may suffer would not be of a level to constitute serious harm.

7. The Authority was satisfied that the applicant would not be imputed with support for the LTTE and taking into account the applicant’s claims cumulatively with his ethnicity and his origins was not satisfied the applicant faces a real chance of serious harm on these bases. 

8. The Authority accepted the applicant had converted to Christianity.  The Authority found the applicant would be a member of a congregation rather than a leader and was not satisfied the applicant would face a chance of serious harm at the hands of nationalist groups, being Buddhists or Hindu.

9. The Authority made reference to the requirements of s.5J(1)(c) of the Migration Act and found that the applicant’s fears were in relation to his local community. The Authority was satisfied the applicant would not face a real chance of serious harm outside of his local area, such as in Colombo or in the south of Sri Lanka.

10. The Authority found that the applicant had departed Sri Lanka illegally.  The Authority found that the applicant may be fined for departing Sri Lanka illegally in breach of the Immigrants and Emigrants Act and that any fine could be paid by instalments. The Authority did not accept that that would cause the applicant economic hardship or otherwise threaten his capacity to subsist. The Authority found that any fine imposed, or the requirement for bail, surety or guarantee, would not constitute serious harm.

11. The Authority was satisfied the applicant would not be given a custodial sentence. The Authority found that the period of detention for more than a few days was remote and accepted that such detention was one in which the prison conditions do not meet international standards due to a lack of resources, overcrowding and poor sanitary conditions. The Authority was satisfied that the conditions in the prisons, albeit poor, were not due to any systemic or deliberate conduct by the Sri Lankan authorities, but were due to economic reasons.

12. The Authority was satisfied that any harm the applicant may face on return to Sri Lanka on the basis of his illegal departure, in terms of any questioning, fine or detention, would not constitute serious harm. The Authority found that the Immigrants and Emigrants Act is not a law applied in a discriminatory manner, nor is it enforced selectively. The Authority made reference to the applicant being fined, detained or questioned and was satisfied that this would not constitute serious harm and would be the exercise of laws of general application that apply to all Sri Lankans equally. 

13. The Authority was satisfied that any process or penalty to which the applicant may be subjected because of his illegal departure or as a failed asylum seeker would not constitute persecution for the purposes of the Migration Act.

14. The Authority found the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act and found the applicant did not meet the criteria under s.36(2)(a) of the Migration Act.

Complementary protection criteria assessment

1. The Authority turned to the issue of complementary protection, including considering the process to which the applicant would be subjected under the Immigrants and Emigrants Act. The Authority was not satisfied the applicant would be subject to acts or omissions which would constitute significant harm, as defined under s.36(2A) and s.5 of the Migration Act during his time in detention or prison while awaiting his hearing.

2. The Authority found that the applicant may face a real risk from his family or local community should he return to live and practise his religion in his local area and identified the requirements of s.36(2B) of the Migration Act. The Authority found the applicant does not face a real risk of significant harm in other parts of Sri Lanka for reason of his religion.

3. The Authority was satisfied that in the applicant’s circumstances, it would be reasonable for him to relocate to an area outside his home, such as Colombo. The Authority addressed the applicant’s circumstances in relation to his education and that he had held good jobs in Sri Lanka, as well as having worked overseas. The Authority found it would be reasonable for the applicant to relocate to an area removed from his home area.

4. Having considered the circumstances of the applicant and the applicant’s profile cumulatively, the Authority found that it did not accept 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 would suffer significant harm. The Authority found that the applicant failed to meet the criteria under s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

1. On 13 April 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.

Applicant’s affidavit 21 June 2017

1. The applicant’s affidavit dated 21 June 2017 filed on 23 June 2017, annexed material which the applicant identified as going to his claims, which was not before the Authority. The Court admitted the material subject to relevance.

2. The material on its face, seeks to invite the Court to engage in an impermissible merits review. This Court does not have power to review the merits or to make fresh findings of fact. The material in the affidavit dated 21 June 2017 is found not to be relevant.

Explanation of the nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision under Part 7AA was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Authority’s decision was unlawful or unfair. 

2. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for a further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs. 

3. The Court explained to the applicant that it would have identified the evidence and make rulings on any objections in relation to the evidence, then hear submissions from the applicant as to why the Authority’s decision was unlawful or unfair, then hear submissions from counsel for the first respondent and then give the applicant an opportunity to put submissions in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that there were still problems in Sri Lanka for people like the applicant. The applicant maintained that he could not go back and that he would be killed. The applicant indicated that he liked it here and that he will not get the same freedom or lifestyle that he is enjoying in Australia if he goes back to Sri Lanka. The applicant maintained that he was happy here and that he could not go back. The applicant put submissions indicating that he disagreed with the findings of the Authority in relation to his fears.

2. The applicant suggested from the bar table that he was not given an opportunity by the Authority to provide information of the kind that he set out in his affidavit of 21 June 2017. The Court raised with the applicant that he had been sent the letter dated 16 November 2016 by the Authority and that he had plainly received that letter and that he had had a telephone conversation with a member constituting the Authority on 30 November 2016 in which the opportunity to put on submissions and new information was explained to the applicant, with the benefit of an interpreter.

3. Nothing said by the applicant from the bar table identified any jurisdictional error by the Authority. The applicant’s claims from the bar table in substance are an invitation for this Court to engage in an impermissible merits review which, for the reasons already given, this Court has no power to do. Nothing said by the applicant identifies any jurisdictional error. 

4. The grounds in the application are as follows:-

   1. Identifying wrong Issues

   2. Asking wrong questions

   3. Ignoring relevant materials

   4. Relying on irrelevant materials or

   5. Incorrect interpretation and/or application to the facts applicable law.

Consideration

1. I accept the submissions of the first respondent that the bare assertions in the grounds 1 to 5 fail to identify any jurisdictional error. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review.  Further, on the face of the material before the Court, the Authority complied with its obligations of procedural fairness by providing the applicant with an opportunity to put on new information and to put submissions.

2. On the face of the material before the Court, the Authority correctly identified the relevant law and made findings that were open to the Authority for reasons that support those findings being logical and reasonable.

3. There is no basis to hold that the Authority identified the wrong issue or asked the wrong question or ignored relevant material or relied upon irrelevant material, nor is there any basis to find that the Authority applied an incorrect interpretation of the law and/or misunderstood the applicant’s claims. 

4. On the face of the material before the Court, the Authority made findings open to the Authority dispositive with the applicant’s claims that cannot be said to lack an evident and intelligible justification. I accept the first respondent’s submissions that grounds 1 to 5 fail to make out any jurisdictional error. 

5. The first respondent has drawn the Court’s attention to the potential issue under SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69.This Court is bound by the decision of the Full Court and no jurisdictional error is made out in light of the decision of the Full Court.

6. The first respondent has also drawn the Court’s attention to two other decisions of this Court which I accept are clearly distinguishable in the circumstances of those particular cases from the circumstances of this case.

Conclusion

1. As the application fails to make any jurisdictional error, the application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 August 2017