Aph17 v Minister for Immigration

Case •

[2019] FCCA 3286

•

14 November 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

APH17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3286
Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to take into account relevant considerations – whether the Authority’s decision was legally unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DB, 473DC, 473 DD, 476
Applicant: APH17
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File Number: PEG 83 of 2017
Judgment of: Judge Street
Hearing date: 14 November 2019
Date of Last Submission: 14 November 2019
Delivered at: Perth
Delivered on: 14 November 2019

REPRESENTATION

The Applicant appeared in person.
Solicitors for the Respondents: Ms E Tattersall
Sparke Helmore

ORDERS

  1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

  2. The amended application is dismissed.

  3. The applicant pay the first respondent’s costs fixed in the amount of $5,300.00.

DATE OF ORDERS: 14 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 83 of 2017

APH17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

  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”) made under Part 7AA of the Act on 3 January 2017 affirming the decision of a delegate not to grant the applicant a Safe Haven Enterprise (subclass 790) visa.

  2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was also found to be a Hindu Tamil. On 8 November 2012, the applicant arrived in Australia as an unauthorised maritime arrival. On 12 April 2016, the applicant applied for a Safe Haven Enterprise (subclass 790) visa.

  3. The applicant claimed to fear harm by reason of his house having been near a Sri Lankan Army (“SLA”) checkpoint, the applicant’s wife having been harassed by members of the SLA and the applicant having made a complaint to the SLA camp about that harassment. The applicant also alleged that, about a week after his complaint to the SLA camp, SLA personnel came to his house and began beating him. The applicant also alleged that he then decided to move to his uncle’s house about 100 metres away. The applicant alleged that he was then requested to visit the SLA camp and that he attended the SLA camp and was questioned about his family and his association with the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant also alleged that, after the questioning, he was released and was told that he had to return whenever the SLA requested. The applicant alleged that he was scared and rented a house near his work so he would not have to pass by the SLA checkpoint.

  4. The applicant alleged that he fears further questioning by the authorities because of an incident which occurred during the war. During the war, the applicant’s brother became friends with a LTTE member called A. A would visit the applicant’s brother in the SLA-controlled area. There was a bomb of A’s which exploded, killing A and a P family. The SLA investigated the event and found that the applicant’s brother was responsible for A becoming friends with the P family. The applicant expressed concerns that, if he comes to the attention of the SLA, the SLA will find out about this incident and he and his family will be in more danger. The applicant claimed to fear being harassed, captured and killed after arriving at the airport.

  5. On the 7 October 2016, the delegate found that the applicant did not meet the criteria for the grant of a Safe Haven Enterprise (subclass 790) visa. On 11 October 2016, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise (subclass 790) visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction providing the applicant an opportunity to put on new information and submissions. Paragraph 23 of the practice direction expressly sets out the substance and requirements of s.473DD of the Act.

  6. The applicant’s representative provided submissions dated 6 November 2016 which were expressly referred to in the Authority’s reasons. The submissions addressed the requirements of s.473DD of the Act and put particular submissions as to why the applicant contended there were exceptional circumstances justifying the Authority considering new information.

  7. The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise (subclass 790) visa application. The Authority also had regard to the material provided by the Secretary under s.473CB of the Act. The Authority also referred to the applicant’s submissions and had regard to the same insofar as they engaged with the delegate’s reasoning and findings.

  8. The Authority identified new information. The Authority took into account and addressed the submissions advanced on behalf of the applicant in relation to the contention that there were exceptional circumstances justifying the Authority considering new information. The Authority was not satisfied that the reasons provided by the applicant’s representative for considering the new information amounted to exceptional circumstances.

  9. The Authority then summarised the applicant’s claims. The Authority also set out the relevant law.

  10. The Authority was not satisfied that, at the time the applicant left Sri Lanka, the SLA was interested in the applicant as a result of a complaint he had lodged about the sexual harassment of his wife. The Authority accepted that the Applicant was called in for questioning but found that this appears to have been an instance of routine monitoring and harassment. The Authority was not persuaded that the applicant faced a real chance of harm on the basis of the complaint he made or being a member of the social group who made claims of sexual assault against members of the SLA.

  11. The Authority referred to the incident in 2006 in respect of which the applicant claimed to fear harm. The Authority accepted that there was an SLA investigation following a bomb blast in 2006. The Authority was not satisfied that the blast was associated with the LTTE. The Authority was also not satisfied that, even if the bomb blast was associated with the LTTE, the bomb blast had anything to do with the applicant’s family or that the applicant would in any way be associated with it.

  12. The Authority rejected the applicant’s claim that the driver of the van relating to the bomb explosion incident was a cousin who was in the LTTE and found that, in the absence of evidence, no member of the applicant’s family has ever been suspected over the incident or investigated, questioned or in any way come to the attention of the SLA as a result. The Authority was not satisfied that M was ever associated with the bomb blast incident or that the applicant would, by reason of his relationship to M or his residency in the SLA‑controlled area of the particular village at that time, be associated in any way with the incident or at risk of harm in relation to the bomb blast incident.

  13. The Authority referred to the questioning of the applicant in relation to LTTE connections. The Authority considered it significant that, notwithstanding the applicant’s family’s links to the LTTE until the incident which followed his complaint to the SLA, the applicant had never been detained, questioned or investigated in relation to those family links. The Authority was not satisfied that the applicant is at risk of harm from the Sri Lanka authorities in the future on the basis of an actual or imputed family connection to the LTTE.

  14. The Authority referred to the applicant’s Tamil ethnicity. The Authority was not satisfied that there was a real chance the applicant will suffer serious harm on return to Sri Lanka now or in the reasonably foreseeable future on the basis of his ethnicity, his residence in the Northern Province or an imputed political opinion.

  15. The Authority accepted that the applicant departed Sri Lanka unlawfully. The Authority found that the investigation, prosecution and punishment of the applicant for illegal departure under the Immigrants and Emigrants Act 1949 (Sri Lanka) does not amount to persecution within the meaning of s.5J(4) of the Act.

  16. The Authority, having considered the applicant’s circumstances as a whole, was not satisfied that there is a real risk the applicant will suffer significant harm in the reasonably foreseeable future whether because of a complaint he made to the SLA about the sexual harassment of his wife, the 2006 bomb blast incident, his Tamil ethnicity and origins in the Northern Province, any real or imputed connections to the LTTE, his illegal departure and his having made a claim for asylum in Australia. In these circumstances, the Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Act and found that the applicant did not meet the criteria in s.36(2)(a) of the Act.

  17. The Authority found that 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 will suffer significant harm. The Authority found that the applicant did not meet the criteria in s.36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

  1. These proceedings were commenced on 12 February 2017. On 28 April 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed affidavit evidence annexing a transcript of the Safe Haven Enterprise visa interview, a Department of Foreign Affairs and Trade (“DFAT”) country information report which was before the Authority (“the 2015 DFAT report”) and a DFAT country information report dated shortly before delivery of the Authority’s reasons (“the 2017 DFAT report”).

  2. The affidavit annexing the 2017 DFAT report included an email sent from DFAT identifying that the date on the 2017 DFAT report, being 24 January 2017, is the same date that it was released to decision makers at the Department of Home Affairs and the Administrative Appeals Tribunal and made publicly available.

  3. 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.

  4. From the bar table, the applicant identified that he could not go back to Sri Lanka, that he would be harassed and that he had a fear of the SLA. It is apparent that the applicant’s claims in relation to a fear of the SLA were considered by the Authority in the context of the applicant’s ethnicity, origin and the incidents which the applicant alleged. The Authority made adverse findings which were open to the Authority and dispositive of the applicant’s claims. The applicant’s submissions from the bar table were, in substance, an invitation to the Court to engage in merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

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

    Ground 1

    The Immigration Assessment Authority’s decision was vitiated by a constructive failure to exercise jurisdiction in that the Authority did not form the state of satisfaction (one way or another) required for the purposes of the review in respect of the criterion in subsection 36(2)(a) or (aa), because the Authority did not evaluate at all the latest iteration of the country information report.

    Particulars

    1.1 The Authority’s decision was made on 30 January 2017

    1.2 DFAT published and made available to the Authority the 2017 Department of Foreign Affairs and Trade (DFAT)country report on Sri Lanka on 24 January 2017

    1.3 The Authority informed itself by reference to the 2015 DFAT country report on Sri Lanka to the exclusion of the latest iteration

    Ground 2

    Further or alternatively to Ground 1, the Authority’s decision was vitiated by a constructive failure to exercise jurisdiction by not ‘getting', or not considering whether to ‘get’, under 473DC, the 2017 DFAT country information report on Sri Lanka, which failure disabled the Authority from fulfilling its statutory task and was unreasonable.

    Particulars

    2.1 The Particulars to Ground 1 are repeated.

Ground 1

  1. In relation to ground 1, it is alleged that the Authority did not evaluate country information being the 2017 DFAT report. Whilst the Court accepts that there may have been available the 2017 DFAT report via the internet that does not mean the Authority was entitled to have access to the same and take it into account. The provisions of Part 7AA of the Act relevantly include s.473DB of the Act which requires the Authority to review the delegate’s decision on the basis of review material referred to it under s.473CB of the Act. In these circumstances, subject to the issue raised by the second ground, no jurisdictional error arises by reason of the Authority not evaluating a report that was not before the Authority. Accordingly, no jurisdictional error as alleged in ground 1 is made out.

Ground 2

  1. In relation to ground 2, the applicant seeks to advance that the Authority acted legally unreasonably in failing to expressly consider the 2017 DFAT report or exercising the power under s.473DC of the Act in respect of the 2017 DFAT report.

  2. It is apparent that the Authority wrote to the applicant on 11 October 2016 in relation to the review under Part 7AA of the Act and that the review was required under those provisions to be conducted expeditiously. The applicant provided submissions to the Authority on 6 November 2016 and it is apparent on the face of the Authority’s reasons that the Authority had an active intellectual engagement with those submissions.

  3. The date of the 2017 DFAT report being effectively six days before the delivery of the Authority’s reasons is of itself an evident and intelligible justification for the absence of expressed consideration by the Authority of the powers under s.473DC of the Act. This is not a case where the Authority was invited to await the publication, nor was any step taken to provide the publication to the Authority or inviting the Authority to exercise its powers under s.473DC of the Act.

  4. Accordingly, the Court finds that there is no legally unreasonable failure by the Authority to consider exercising its powers under s.473DC of the Act. In these circumstances, it is not necessary for the Court to determine whether the 2017 DFAT report would, in any event, have met the requirement of materiality to give rise to jurisdictional error. No jurisdictional error as alleged in ground 2 is made out.

  5. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  17 January 2020

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