ARN17 v Minister for Immigration

[2017] FCCA 2551

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARN17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2551

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – the Authority complied with its statutory obligations in the conduct of the review – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: ARN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 485 of 2017

Judgment of: Judge Street

Hearing date: 20 October 2017

Date of Last Submission: 20 October 2017

Delivered at: Sydney

Delivered on: 2551

REPRESENTATION

Solicitors for the Applicant: The applicant appeared in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 485 of 2017

ARN17

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 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 18 January 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa (SHEV). 

2. The applicant arrived in Australia as an irregular maritime arrival on 28 August 2012. On 24 November 2015, the applicant lodged a valid application for a SHEV. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant is of Tamil ethnicity and a Hindu. The applicant claimed to fear harm due to his ethnicity, his religion and imputed political opinions as a supporter of the Liberation Tigers Tamil of Eelam (LTTE), his past involvement with the Tamil National Alliance (TNA) and his membership of a particular social group, being failed asylum seekers who departed Sri Lanka illegally. On 28 November 2016, a delegate found the applicant failed to meet the criteria for the grant of the visa under the Act.

The Authority’s decision

1. On 1 December 2016, the Authority wrote to the applicant identifying that the application had been referred to the Authority for review. The Authority’s letter explained that there were only limited circumstances in which the Authority could receive 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.  The applicant’s representative made submissions on 14 December 2016 that were identified and considered in the Authority’s reasons.

Information before the Authority

1. The Authority identified the background to the visa application and identified having regard to the material referred by the Secretary under s 473CB of the Act. The Authority referred to the written submissions received on 14 December 2016 and identified that to the extent the submissions referred to and challenged the delegate’s decision and the issues that were before the delegate, the Authority was satisfied that this was not new information and had regard to the same. 

2. The Authority referred to a media report dated 1 November 2016 referring to torture in Sri Lanka. The Authority noted that this predates the delegate’s decision. The Authority noted that the report does not contain any information that is contrary to country information already before the Authority. The Authority made reference to the requirements of s 473DD of the Act. The Authority was not satisfied that there were exceptional circumstances and did not have regard to the media report dated 1 November 2016. A fair reading of the Authority’s decision in relation to the submissions and the media report identifies the Authority taking into account both limbs of s 473DD of the Act. There is no basis to infer that the Authority adopted an erroneous narrow construction of exceptional circumstances in the present case.

Assessment of Refugee Convention criteria

1. The Authority identified the applicant’s claims and set out the relevant law. The Authority accepted part of the applicant’s claims in relation to his family home having been burnt down by local Muslims and his family having to relocate to a displaced persons camp. The Authority noted that the family home was later rebuilt and the family returned to it and that the applicant’s mother and brothers remain in that family home now. 

2. The Authority referred to the alleged support for the LTTE. The Authority was satisfied the applicant’s support to the LTTE was low-level and not out of the ordinary for any other Tamil civilian in that area at the time. The Authority found that the low-level assistance the applicant gave the LTTE would not be sufficient to impute him with any support for the LTTE now or in the reasonably foreseeable future.  The Authority was not satisfied the Sri Lanka authorities would consider the applicant to be a person of interest or suspicion on the basis of a real or imputed support to the LTTE. The Authority was not satisfied the applicant faced a real chance of harm on the basis of a real or imputed political opinion, support for or sympathy for the LTTE. 

3. The Authority referred to the applicant’s concerns in relation to involvement with the TNA. The Authority was prepared to accept that the applicant is a low-level supporter of the TNA and has assisted it at the local level in his village but does not accept that the applicant has any other profile of the TNA. The Authority referred to an incident that occurred in 2011 and was satisfied that this occurred in the context of the 2011 local government election campaign and that the applicant has not claimed any further contact with or assaults by that person or that that person has shown any further interest in the applicant. The Authority found that the applicant does not face a real chance of further assaults or intimidation by that particular person.

4. The Authority accepted that the applicant may have been threatened and assaulted as claimed on 14 July 2012 when a white van came to his home. The Authority took into account the country information.  The Authority was satisfied that the threats and assaults claimed by the applicant occurred in the context of the generalised election violence.  The Authority was not satisfied the applicant will face a real chance of serious harm for reason of his support for the TNA on the basis of his past activities or any future support for the TNA.

5. The Authority was not satisfied the applicant would be at risk of a white van abduction by reason of his real or imputed political profile, as either a sympathiser or supporter of the LTTE or as a member of the TNA. The Authority made reference to the applicant’s claim that unidentified people came to his house on one occasion looking for him.  The Authority noted that the applicant has not reported any further visits since that one occasion. The Authority noted that the applicant has not claimed that any other members of his family have been questioned or contacted about him or his whereabouts. 

6. The Authority was not satisfied that the visit occurred as claimed. The Authority was not satisfied there is a real chance of any such visits occurring in the future. The Authority found the applicant will not face a real chance of harm in connection with the claimed visit should he return to Sri Lanka. The Authority referred to the applicant’s claim that a Buddhist monk had been inciting tension and violence between Sinhalese and Tamils in his area. The Authority was satisfied on the country information that the chance that the applicant will face a real chance of harm for this reason is remote. The Authority was not satisfied there is a real risk of chance of serious harm on this basis. 

7. The Authority referred to the applicant’s claims of harm due to being a Tamil and a Hindu. The Authority found that while Sri Lankan Tamils and Hindus may continue to face difficulties, the levels of difficulty and disadvantages have decreased and continue to do so. The Authority found that any such difficulties are not of a level to constitute serious harm. The Authority found the applicant does not face a real chance of serious harm on the basis of being a Tamil, a Tamil male from the east or a Hindu. 

8. The Authority referred to the applicant’s mental health issues. The Authority was not satisfied the applicant will face a chance of harm arising from his mental health issues. 

9. The Authority referred to the applicant’s illegal departure from Sri Lanka and the Authority found the applicant has no profile and there is not a real chance that he would be harmed or mistreated because he is a returning asylum seeker. The Authority found that the imposition of a fine, requirement for bail, surety or guarantee as a result of breach of the Immigrants and Emigrants Act would not constitute serious harm.   The Authority was not satisfied the applicant will face a risk of serious harm if detained, notwithstanding his mental health issues. The Authority found to the extent the applicant may be fined, detained or questioned under the Immigrants and Emigrants Act, the Authority was satisfied this would not constitute serious harm and would be the exercise of laws of general application that apply to all Sri Lankans equally. The Authority was not satisfied that the applicant will face a real chance of serious harm on the basis of his ethnicity, religion, his real or imputed political opinion being support or sympathy for the LTTE and/or support for the TNA, his mental health issues or being a returned asylum seeker who departed Sri Lanka illegally should he return to Sri Lanka. 

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

11. The Authority found there are 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 the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. On 8 June 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

2. At the commencement of the hearing today, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was effected by relevant legal error. The Court explained that the relevant legal error had to either be 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. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further review.  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 that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel from the first respondent and then hear submissions from the applicant 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 indicated that he wanted to stay here and the Court explained to the applicant that it had no power to determine the matter on compassionate grounds and that the Court had no power to revisit the merits. The Court explained that it could only grant relief if satisfied that the findings or reasons of the Authority were illogical or unreasonable and/or the Authority had misunderstood the statutory powers and/or the applicant had been denied a fair process in the review.

2. The applicant maintained that he was a supporter of the LTTE and that there were still problems in his country. The applicant maintained that there was a person who had harmed him who lived nearby and he would harm him again in the future. The applicant’s submissions from the bar table invited the Court to engage in an impermissible merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error. 

3. The grounds in the application are as follows:

   IAA made a jurisdictional error.

   These are the relevant factors which Immigration Dept, do not take into consideration.

   1. IAA did not consider the frequent visit by Sri Lankan Authority looking for the applicant.

   2. IAA did not consideration applicant active member of Militant Group (TMVP)

   3. IAA did not consider he was previously assaulted and beaten.

   4. IAA did not consider criminal investigation division looking for him.

Ground 1

1. In relation to ground 1, the bare assertion of a jurisdictional error does not make out any error. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the applicant complied with its obligations of procedural fairness by the sending of the letter to the applicant in relation to the review and giving the applicant an opportunity to put on new information and submissions and taking those submissions into account, subject to the provisions of Part 7AA. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the assertion that there are relevant factors that the Authority did not consider does not of itself identify any relevant matter that was not taken into account. The matters identified by the applicant from the bar table in relation to his friend and the LTTE were the matters of adverse findings by the Authority that were open on the material before the Authority and cannot be said to lack an evident  and intelligible justification. No jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, the Authority did accept part of the applicant’s evidence in relation to his family but did not accept the applicant’s claims as to continuing interest by the Sri Lankan authorities in the applicant. The adverse findings by the Authority were open and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 3. 

Ground 4

1. In relation to ground 4, no issue of being involved with the TMVP was raised by the applicant. An issue not raised before the Authority and not fairly arising on the material is not capable of giving rise to any jurisdictional error. Ground 4 fails to make out any jurisdictional error. 

Ground 5

1. In relation to ground 5, the Authority did take into account the applicant’s alleged incident in which he was assaulted and beaten but made an adverse finding in relation to the circumstances in which that occurred. That finding was open. The adverse findings by the Authority in relation to future real risk or real chance were logical and reasonable. No jurisdictional error is made out by ground 5. 

Ground 6

1. In relation to ground 6, the applicant did not identify any claim that the CID was looking for him. To the extent that the applicant would be the subject of questioning as a result of having illegally departed Sri Lanka, that was the subject of adverse findings by the Authority. No jurisdictional error is made out by a claim that was not made by the applicant and does not fairly arise on material. Accordingly, no jurisdictional error is made out by ground 6.

2. As the application fails to make out any jurisdictional error, the 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: 2 November 2017