Aro17 v Minister for Immigration

[2020] FCCA 631

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARO17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 631

Catchwords:
MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the IAA’s decision was unreasonable and consequently affected by jurisdictional error.

Legislation:

Migration Act 1958, ss.5, 36, 473BB, 473CA, 473CB, 473DA, 473GA, 473GB, 474

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: ARO17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 486 of 2017

Judgment of: Judge Cameron

Hearing date: 3 March 2020

Date of Last Submission: 3 March 2020

Delivered at: Sydney

Delivered on: 3 March 2020

REPRESENTATION

Counsel for the Applicant: Mr O. Jones

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 486 of 2017

ARO17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived by boat at Christmas Island on 13 October 2012 without a visa permitting him to enter and stay in Australia.  On 5 May 2016 he lodged an application for a Safe Haven Enterprise Visa (“SHEV”) with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity, religion, an imputed political opinion as a supporter of the Liberation Tigers of Tamil Eealam (“LTTE”), his past detention and torture and his membership of a particular social group, namely, returned failed asylum seekers who departed Sri Lanka illegally.  On 16 December 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”).  The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

FAST TRACK REVIEW LEGISLATIVE FRAMEWORK

1. On 18 April 2015 the Migration Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 5(1) of the Act relevantly defines a “fast track applicant” as:

   (a)    a person:

   (i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)who has made a valid application for a protection visa in accordance with the determination;…

2. Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.

3. Part 7AA of the Act sets out the IAA fast track process. Section 473CA is found in that part and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review. Section 473CB relevantly provides:

   473CB  Material to be provided to Immigration Assessment Authority

   (1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (a)    a statement that:

   (i)     sets out the findings of fact made by the person who made the decision; and

   (ii)    refers to the evidence on which those findings were based; and

   (iii)   gives the reasons for the decision;

   (b)material provided by the referred applicant to the person making the decision before the decision was made;

   (c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; …

4. Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews.

BACKGROUND FACTS

Protection visa claims

1. The applicant’s written claims for protection were made in his SHEV application dated 5 May 2016.  The applicant also gave oral evidence at an entry interview on 24 January 2013 as well as to the Department.  On 13 December 2016 the applicant provided submissions to the department.  As summarised by the Minister in his written submissions, the applicant relevantly made the following claims:

   3.The applicant claimed to fear harm due to his ethnicity, religion, imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), his past detention and torture, and his membership of the particular social group (PSG) of returned failed asylum seekers who departed Sri Lanka illegally.

   4.Specifically, the applicant claimed that between 1996 and 1998 the applicant and his brother were Tamil businessmen running a bakery in [in a particular location] and the Sinhalese (the majority population) were jealous of them as they were the only Tamil run bakery enjoying some success.  A Sinhalese person arranged for the Sri Lankan Army (SLA) to beat him and his brother – the SLA destroyed part of the bakery and warned the applicant to leave or be killed.  He reported this to the police who said they could not do anything as they had not seen the incident.  He left out of fear and purchased a grocery shop in [a different location] in 2004 with a guest house on the top floor.

   5. In 2005, the police came and took the guests from his guest house and took him to the police station where he was interrogated and detained for 28 days, then released and warned without charge.

   6. In 2007, he was interrogated in his shop by 4 people, blindfolded and beaten on the floor of a van.  The interrogators kept asking him about his connections with the LTTE.  He was abandoned, locked in a room and severely tortured including having teeth knocked out.  He escaped and sought treatment…

   7.His wife saw people loitering outside his shop, and they told neighbours that the applicant was working with the LTTE, after which the neighbours started throwing rocks at the house.  The wife and children moved to stay with her aunt.

   8.The applicant travelled to India, and his wife was subjected to harassment by the Criminal Investigation Division (CID) and had to flee Sri Lanka.  He left India for Australia in 2012.  The CID has since visited his mother in law asking for him, spoke to his daughter and obtained a photograph of him.

   9.On 16 December 2016, the delegate refused the visa: CB 171-193. The delegate believed the claims in relation to the incident[s] in 1998 and 2005, but due to inconsistencies in accounts, disbelieved the claims in relation to incidents occurring in 2007 and the visits by unknown people in 2016.  The delegate accepted that the applicant departed Sri Lanka illegally.  After considering the claims separately and cumulatively, the delegate found that he did not face serious or significant harm on return to Sri Lanka.

   10.The applicant’s case was then automatically referred to the IAA.

   11.On 31 December 2016, 4 and 12 January 2017, the applicant provided the following documents to the IAA:

   •A medical report of … dated 16 November 2016: CB 218-219

   •A letter from the Tamil Refugee Association Incorporated dated 28 December 2016 attaching country information: CB 220-225

   •A media report dated 17 November 2016: CB 226-227

   •A statutory declaration of the applicant dated 31 December 2016: CB 206-210

   •Medical report of … dated 12 January 2017 attaching 2 photographs: CB 232-235

2. I adopt that summary.

The IAA’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The IAA’s findings were also summarised by the Minister in his written submissions in the following terms, which I also adopt:

   13.The IAA found that the Tamil Refugee Association letter and the Applicant’s claim to have assisted LTTE prisoners were new information and found that there were not exceptional circumstances to justify their consideration pursuant to s 473DD(a) of the Migration Act 1958 (the Act).  It was satisfied there were exceptional circumstances to justify consideration of the medical reports.

   14.In relation to the applicant’s claims of past harm, the IAA found the assault in 1998 occurred as claimed and by reason of the applicant’s Tamil ethnicity, but that it occurred 20 years ago and was a single event.

   15.The IAA accepted that the interrogation in 2005 occurred as claimed and that the applicant accepted he was not mistreated on that occasion.  As he was released without charge or follow up, he was not then or subsequently imputed with any support for or connection to the LTTE arising from that incident.

   16.Unlike the delegate, the IAA found the claims concerning the 2007 incident to be credible and after considering the medical evidence was not satisfied that the applicant was simply ‘retelling a learned story’.  It accepted that the applicant was detained and suffered severe physical mistreatment at the hands of the Sri Lankan authorities and that the reason for this was his ethnicity and/or an ‘at least’ imputed connection with the LTTE.  It also accepted that the applicant escaped and that given what he had just experienced, he was in fear of returning home.  The IAA accepted that the applicant had a genuine subjective fear for his safety and that this was the reason he went to India, but because of a lack of response to his escape, it was not satisfied that the applicant was a person of significant interest to the authorities.

   17.The IAA did not accept that the authorities had visited his mother in law 10 years later, and found this aspect of his claim was embellished or fabricated.

   18.It found that as any previous imputed LTTE involvement by the applicant was as nothing more than as a low level supporter, and given the cessation of hostilities and changing situation in Sri Lanka, the authorities will not now have an adverse interest in him.

   19.The IAA found that difficulties facing Sri Lankan Tamils are not of a level to constitute serious harm.  Similarly, based on DFAT reports, most members of religious groups are able to practise their faith freely.  The applicant does not face a real chance of serious harm on the basis of being a Tamil, a Tamil male from the south east or a Catholic.

   20.The IAA considered whether the applicant’s mental health issues (post-traumatic stress disorder) would give rise to a claim, even though that was not a claim made by the applicant.  The IAA found that there was nothing in the information before it to confirm that he would be unable to access or be denied access to appropriate care and concluded that he will not face harm arising from this.

   21.The IAA found that the applicant may be questioned on return as an illegal departee /failed asylum seeker, however, because of his low profile, he would not be at risk. There is a real chance he would be charged and fined under generally applicable law, but any fine imposed or requirement for any bail, surety or guarantee, or short period of detention, would not constitute serious harm.

   22.In considering complementary protection, for similar reasons, the IAA concluded that the applicant was also not at risk of significant harm.

   23.Having found that the applicant did not satisfy the requirements of ss 36(2)(a) or (aa) of the Act, the IAA affirmed the decision under review. (References omitted)

PROCEEDINGS IN THIS COURT

1. In his amended application the applicant alleged:

   1.The Immigration Assessment Authority (Hereinafter referred as “the Authority”) made a jurisdictional error in relation to the applicant’s escape from custody.

   a.The Authority under the law of legal unreasonableness could not make a finding fact for which there was no evident and intelligible justification (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [82]) and which was material to the Authority’s decision (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]);

   b.Proper, genuine and realistic consideration required the Authority to engage in an active intellectual process directed towards the Applicant’s case (see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45]; Minister for Home Affairs v Omar [2019] FCAFC 188 at [36]-[43]);

   c.The “what if I am wrong test laid down in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 required the Authority, in the event that a finding of fact was reached without sufficient certainty, to consider the consequences in the event that the finding was wrong;

   d.The Authority was required not to impose an arbitrary standard of conduct on or in relation to the applicant: BWC16 v Minister for Home Affairs [2018] FCA 1375 at [59] per Thawley J;

   e.The Authority found at [paragraph 24] of its decision that the Applicant had possibly been allowed to escape by the two men on humanitarian grounds but found it to be equally possible that the Applicant had been authorised to depart by the two men as he was no longer required for custody;

   f.The Authority did not consider whether, in the event that the equal possibility was incorrect, the Applicant had indeed escaped from a continuing custody and was therefore of significant interest to the authorities;

   g.The Authority found at [paragraph 24] of its decision that had the Applicant escaped from custody his family’s and associate’s properties would have been searched and further found that the questioning of the Applicant’s wife was consistent with the authorities seeking the applicant;

   h.The Authority thereby imposed an arbitrary standard of conduct upon the authorities without regard to their particular circumstances and pressures in relation to persons of significant interest or otherwise did not properly consider the significance of the fact that the Applicant’s wife was contact by the authorities.

CONSIDERATION

1. The case turns on paragraph 24 of the IAA’s decision, which states:

   24.There is no evidence to satisfy me that the authorities considered the applicant to have escaped from custody.  I am prepared to accept that the applicant believes that the two men assisted his escape and it is possible that they did so for humanitarian reasons, but it is equally possible that the authorities had no further interest in the applicant and the two men simply allowed him to leave, even if they told him he was “escaping”.  I have considered country information about the treatment of suspected LTTE supporters at this time.  While the claim that the applicant’s wife was contacted by the authorities in the days after the “escape” is consistent with the authorities seeking the applicant, there is no evidence of any more intensive searching or investigation by the authorities.  If the applicant was seen as a person of significant interest who had escaped, I would have expected a more intensive response including searching his family’s and associate’s properties.  On this basis, although I accept that the applicant had a genuine subjective fear for his safety and that this was the reason he went to India, I am satisfied that the applicant was not a person of significant interest to the authorities.  I am satisfied that he did not and does not face a real chance of harm for this reason.

2. The applicant says that that paragraph reveals two matters justifying a finding of jurisdictional error.  The first is that the paragraph discloses an unreasonable application of a binary choice reflected in the use of the words “equal possibility” and the second is arbitrarily choosing one option over the other. 

3. The first point overstates what is really no more than a discussion which sets the scene for the IAA’s reasoning concerning the matter truly in issue, which was whether the applicant was of sufficient interest to the Sri Lankan authorities to justify a fear of persecution.  Whether or not the applicant was allowed to escape with the actual or tacit consent of the authorities was a matter of no substantive consequence.  What did matter was what happened after he had.  That is to say the IAA’s speculation as to what the circumstances of the applicant’s escape might reveal of the authorities’ attitude towards him did no more than provide a background setting for the decision which followed concerning the authorities’ subsequent inquiries into his whereabouts which did form the basis of the Tribunal’s reasoning and conclusion on the issue of his interest to authorities.

4. The argument based on the question, “What if I am wrong” does not take the matter any further because it depended on the materiality of the contended-for binary choice, which I have rejected, and the supposed weakness of a finding based on it. 

5. The applicant’s second point was that the IAA’s statement in the sentence:

   If the applicant was seen as a person of significant interest who had escaped, I would have expected a more intensive response including searching his family’s and associates’ properties,

   manifested the imposition of an arbitrary standard concerning what the Sri Lankan authorities could have been expected to have done if the applicant had been of genuine interest to them.

6. The imposition of an arbitrary standard is a form of unreasonableness in that a purportedly objective criterion or test is imposed without it being demonstrated that it is appropriate to the circumstances.  There was no arbitrary standard employed in this case, albeit that the IAA’s choice of words might give that impression.  What was expressed by the IAA in this case was a counterfactual hypothesis, not a standard.  Once the applicant escaped all that happened was that his wife was contacted, nothing more.  It was the gap between what might have happened and what did happen that cast a shadow over the applicant’s claim to have a well-founded fear of persecution at the hands of the Sri Lankan authorities.

CONCLUSION

1. Jurisdictional error on the part of the IAA has not been demonstrated.  Consequently, the application be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  19 March 2020