Aso18 v Minister for Home Affairs
[2019] FCCA 1403
•24 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASO18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1403 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misunderstood the well-founded fear test – whether the Authority made an unfounded assumption – whether the Authority’s decision was legally unreasonable as a result of new country information – whether the Authority failed to properly consider the applicant’s familial link with the LTTE – whether the Authority failed to properly consider the applicant’s fear of being imprisoned in Sri Lanka – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: ARK16 v Minister for Immigration [2017] FCCA 3087 Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 CJS17 v Minister for Immigration and Anor [2019] FCCA 440 DHK16 v Minister for Immigration and Anor [2017] FCCA 3228 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 |
| Applicant: | ASO18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 424 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 24 May 2019 |
| Date of Last Submission: | 24 May 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 24 May 2019 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondents: | Ms Evans, Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5000.00.
DATE OF ORDERS: 24 May 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 424 of 2018
| ASO18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR EXTEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant is a Hindu Tamil from the eastern province of Sri Lanka. The applicant entered Australia as an unauthorised maritime arrival on 14 November 2012. On 8 June 2016, the applicant was invited to make an application for a Safe Haven Enterprise visa (“protection visa”). That application was made on 6 December 2016. On 5 May 2017, a delegate of the Minister refused the applicant’s application. The applicant then sought review by the Immigration Assessment Authority (“the Authority”). On 8 February 2018, the Authority affirmed the delegate's decision to refuse the protection visa. The applicant now seeks judicial review of the Authority’s decision.
An initial application for review was filed, which contained two grounds of appeal. This application was dated 19 February 2018. Subsequently, on 23 May 2019, an amended application containing five new grounds was emailed to the Court. The filing of such a late application is very unsatisfactory. The applicant had over 12 months in which he could file documentation and failed to comply with multiple orders of the Court. Ms Evans who appeared on behalf of the first respondent, indicated to the Court that, notwithstanding the fact that she had been taken at very short notice, she was able to respond to the additional grounds of appeal contained within the amended application. In those circumstances, given that there appeared to be no prejudice to the first respondent, leave was granted to rely upon the additional grounds of appeal contained within the applicant’s amended application.
The Court acknowledges and thanks Ms Evans for her work in preparing the matter. The only alternative would have been for the matter to be adjourned. This is a very busy Court with a migration list that runs to some 5,000 matters. It is crucial that matters are dealt with and determined in the most expeditious manner possible. Accordingly, I have determined to hear the matter to conclusion.
Background
The applicant's claims for refugee protection are set out in paragraph 5 of the Authority’s decision. They may be summarised as follows:
a)The applicant's grandfather was a Liberation Tigers of Tamil Eelam (LTTE) combatant and was killed in 1990 during the civil war. This was five years prior to the applicant's birth in 1995.
b)Following the death of the applicant’s grandfather, his paternal uncle who was referred to as J, lived with the applicant's family. J subsequently became the financial officer or treasurer of the LTTE in the Batticaloa district. In 2011, following the cessation of the civil war in 2009, the applicant reported that the Criminal Investigation Department or CID visited his home looking for J. The applicant's father, who was the older brother of J, was threatened by the CID.
c)In February 2012, the CID again came to the applicant's house and searched it looking for J, weapons and money. The applicant stated his father was assaulted by the CID, taken into custody and then removed to a Sri Lankan army camp nearby. The applicant’s father returned the next day badly beaten. The CID also interrogated the applicant, threatened to kill him and his father. I note that at this point in time the applicant was only 17 years of age. There is no suggestion the applicant had been an LTTE combatant or that he had any association with the LTTE other than through his familial connection with his grandfather, who was deceased, and being the nephew of J.
d)In May 2012, the CID again attended the applicant's home. The applicant claims that he was interrogated and mistreated, but was released after several hours.
e)The applicant claims he then fled to Colombo and lived with his mother’s friend where he stayed inside the house for five months. The applicant claims that on the one occasion he left the house in Colombo, the CID came to the house looking for him. The applicant fled by boat to Australia in late October 2012. The applicant claims the CID have gone to his former home on two occasions subsequent to his leaving, looking for him.
f)The applicant fears that the Sri Lankan authorities, upon his return, will detain him, interrogate him, torture or kill him.
The Authority Decision
At paragraph 8 of the Authority’s decision, the Authority accepted the applicant's identity and nationality as claimed. The Authority accepted the applicant's family connection with the LTTE, the death of his grandfather and the involvement of his uncle J, at paragraph 10, as a financial officer or treasurer of the LTTE. The Authority accepted that the CID visited the applicant’s home on a number of occasions, searched it looking for his uncle J, weapons and money. The Authority accepted the applicant's father was detained and seriously mistreated in January 2012. The Authority accepted at paragraphs 12 and 13 of its decision that threats were made to kill the applicant.
The Authority, however, had serious concerns as to the credibility of the balance of the applicant's claims regarding the disappearance of his father, the sustaining of a scar on his back while in CID custody and that the CID came to the house in Colombo on the one occasion the applicant left it during a five-month period.
At paragraph 20, the Authority weighed up the evidence that the CID threatened to kill the applicant, but concluded that the threats were not serious and were made for the purposes of intimidating the applicant. I infer by that as intimidating the applicant into providing information as to the location of J.
The Authority concluded at paragraph 20, that given the lapse of time since the applicant left Sri Lanka, a period now of six years at the time of the Authority’s decision, that the applicant would not be a person of interest to Sri Lankan authorities. At paragraph 22, the Authority found that the country information did not indicate that Sri Lankan authorities monitored individual Facebook accounts of asylum seekers and was not satisfied that the applicant would be targeted on that basis.
At paragraph 28 of its decision, the Authority concluded that the applicant did not face a real chance of harm if returned to Sri Lanka.
At paragraphs 29 to 38 of its decision, the Authority considered the risks involved with the applicant's return to Sri Lanka as an illegal departee. The Authority concluded that the treatment the applicant would receive upon his return to Sri Lanka did not involve persecution as such. The Authority concluded that the applicant would not face serious harm if detained and questioned upon his arrival in Sri Lanka or even if he was sent to a prison for a short period of time prior to being put before a magistrate as an illegal departee.
At paragraphs 40 to 45, the Authority considered the complimentary protection requirements. For the same reasons as indicated above, the Authority concluded the applicant did not face a risk of significant harm under those protection provisions. The Authority concluded that it was not satisfied that the criteria for the granting of a protection visa under the Migration Act 1958 (Cth) (“the Act”), specifically section 36(2)(a) and section 36(2)(aa) of the Act were enlivened.
The applicant sought leave to rely upon both his original grounds of appeal, as well as the grounds contained within the amended application. No submissions were filed in relation to either the original applications or the amended ones. I will deal with them on the basis of dealing with the initial application first, where there are two grounds. I will then deal with the amended application, of which there are some five grounds.
The Grounds
Ground 1 of the initial application was:
The IAA made a jurisdictional error by misunderstanding the well-founded fear test.
The applicant, in the particulars, claimed that he was threatened and beaten up by authorities because his father and uncle were associated with the LTTE. The Authority concluded that the applicant faced mere intimidation. The Authority failed to recognise intimidation as constituting a fear of persecution. I agree with the first respondent’s written submission where in Ground 1, the applicant claims that a finding of intimidation should constitute serious harm for the purposes of s.36(2)(aa) of the Act and that this was not properly considered by the Authority.
At paragraph 28 of its decision, the Authority considered all of the evidence, but came to the conclusion that the applicant did not face a real chance of harm, notwithstanding its factual findings, which included the applicant’s previous interactions with the CID. As I have indicated above, the Authority accepted that the applicant may have been threatened, but these threats were not real. Rather, they were made for the purpose of enticing the applicant to give information in relation to the whereabouts of J. This is a factual finding that was open to the Authority to make. I find no jurisdictional error in relation to this matter.
Ground 2 is as follows:
The IAA made jurisdictional error. The IAA failed to find that the applicant will be imputed with an LTTE opinion.
This ground asserts that the Authority failed to find that the applicant would be imputed with such an opinion. It is clear, however, that the Authority did consider this, but came to the conclusion that that would not be the case and there was no risk of serious harm. In particular, I refer to the findings at paragraph 28 of the decision. I concur with the first respondent’s submission that the Court is being invited in this ground to engage in impermissible merits review. I find no jurisdictional error arises as a result of Ground 2.
I now turn to the applicant’s amended application. There are five grounds.
Ground 1
The Immigration Assessment Authority (hereinafter referred as 'IAA') erred in its finding at [paragraph 35] without evidence that the applicant has the support of his family to assist him with any fine that is imposed which is an unfounded assumption and is a jurisdictional error.
Particulars:
Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [41] (in considering whether there had been a denial of procedural fairness in that case), "the circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance" of a substantial kind.
The IAA said [at paragraph 35] of its decision "If the applicant pleads not guilty, he will be released on his own personal surety. I note in some cases a family member is required to collect illegal departees who are released, or to act as a guarantor if personal surety is not granted. There is no evidence before me to suggest a member of the applicant's family would not be available to go to Colombo, or act as guarantor, if this is indeed required."
The applicant states the IAA's finding and assertion is ludicrous to state that the applicant's impecunious family members could act as guarantors or pay the fines to enable the applicant's release which is an unfounded assumption.
The findings and the conclusion reached by the IAA at [paragraph 35] involved an unfounded factual assumption about the nature and extent of support that the applicant was able to obtain from his family members in Sri Lanka. (See DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353).
Ground 2
The change of government and the new information of the country information the Immigration Assessment Authority's decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).
Particulars:
a) The delegate's decision was dated 9 October 2018 claimed that "I have been to Sri Lanka and there was no problem" during the interview on 17 September 2018. The applicant in his Statutory Declaration [at paragraph 12] dated 29 October 2018 complained about this which was submitted to the Immigration Assessment Authority.
b) The political situation was drastically changed on 26 October 2018 and the return of the Mahinda Rajapaksa which was not taken to consideration by the delegate. Rajapaksa's administration was accused of serious human rights violations during the final stages of the conflict between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). It is a matter of record that the Sri Lankan military indiscriminately attacked civilians, hospitals and schools, executed prisoners and interned thousands of Tamils with widespread use of torture and sexual violence. Thousands of Tamils and other minorities with links to the Tigers were also forcibly disappeared. For a beleaguered Tamil population in the north and east of the country, the concern will be that history could repeat itself with the threat of further discrimination and violence looming. With no real accountability processes for previous crimes committed, Rajapaksa's return could see Tamil activists and perceived dissidents targeted once again. Rajapaksa is the leader of the opposition and opposes any move to grant rights or to address the grievance of the Tamils.
c) The new Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emmerson Report) in support of the applicants' protection claims in Australia.
d) According to the 2018 Emerson report, Tamils also experience pervasive and insidious forms of stigmatization." at [para 55] of the said report.
e) The Special Rapporteur was told about the surveillance of Tamil civil society, including women's groups and of fear of reporting alleged human rights violations and sexual violence to the authorities. [para 55] of the said report.
f) The Special Rapporteur said "When viewed side by side with the figures that show that Tamils have been, and still are, overwhelmingly and disproportionately affected by the operation of the Act (PTA), a figure emerges of widespread institutional stigmatisation of a single community. [para 56] of the said report.
g) The Special Rapporteur said in his conclusion "The Tamil community remains stigmatised and disfranchised, while the trust of other minority communities is being steadily eroded.”
h) In 2017, the Supreme Court of Sri Lanka ordered the State to pay over Rs. 2 million each to the parents of two Tamil youths tortured and killed in police custody by Batticaloa police, following the filing of a Fundamental Rights case. In this case the petitioners cited the former OIC of Batticaloa Police and four others as respondents. The petitioners stated that their deceased sons' arrest, detention is wrongful and illegal and that they were subjected to torture and killed that their fundamental rights guaranteed by Article 11, 13(1), 13(4) and 17 of the Constitution was violated by the respondents. The applicant is also from Batticaloa in Sri Lanka.
i) According the above new information as there is a material change in the applicants' circumstances which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the referred applicants' country of claimed of protection, such as a change in the political and/or security landscape.
Ground 3
The change of security and human rights and the prevailing violence due to the recent bomb attacks in Sri Lanka and the new information of the country information the Immigration Assessment Authority's decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).
Particulars:
a) The Sri Lankan Police and the Armed Forces are totally engaged in the operation against the Islamic subversive elements in a continuing battle in the whole of the Sri Lankan Island and it is unrealistic to believe the Sri Lankan Police would give protection to the applicant at present or in the near future.
b) Unwillingness to seek protection will be justified for the purposes of Article 1A(2) where the state fails to meet the level of protection which citizens are entitled to expect according to international standards" (See MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27] [29]).
c) The joint judgment in S152/2003 refers to the obligation of the state to take reasonable measures" to protect the lives and safety of its citizens, including an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system or a reasonably effective police force and a reasonably impartial system of justice, indicating that the appropriate level of protection is to be determined by ,,international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245.
d) According the above new information as there is a material change in the applicants' circumstances which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the referred applicant’s country of claimed of protection, such as a change in the political and/or security landscape. Failing to consider the material change in the applicant’s claims if he were to return to Sri Lanka which is a jurisdictional error.
Ground 4
The IAA failed to give due consideration based on the applicant's familial with the LTTE particularly of his uncle J which is a jurisdictional error.
Particulars:
a) The IAA said at [paragraph 11] "I accept in June 2011 the CID came to the applicant' s family home searching for Uncle J, and that when the applicant's father told them he did not know where Uncle J was, the CID threatened him............"
b) The IAA also accepted several of the applicant's claims in [paragraph 12].
Ground 5
The IAA erred in law in failing to respond to the appellant's claim to fear of significant harm in Sri Lanka prisons by reason of being imprisoned on pre-trial remand.
Particulars:
a) The IAA’s findings in respect of the applicant’s claim for a protection visa on the complementary protection ground in s 36(2)(aa) of the Migration Act 1958 (Cth) in contrast to the Refugees Convention ground in s 36(2)(a). The IAA did not deal with the applicant's case of torture whilst in remand detention under the complementary protection provisions.
b) The IAA also did not properly deal with the Pre-Trial Remand Claim in considering the applicant's claim for a protection visa on the complementary protection ground. Where the Tribunal fails to deal with a claim expressly articulated by an applicant, this is a jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs 144 FCR 1 at [55]-[63]. Therefore, the IAA committed a jurisdictional error.
Ground 1 claims that the Authority erred in its finding at paragraph 35, without evidence, that the applicant has the support of his family to assist the applicant with any fine that is imposed, which the applicant claims is an unfounded assumption and jurisdictional error. The first respondent has referred me to a decision of CJS17 v Minister for Immigration and Anor [2019] FCCA 440 (”CJS17”). This is a decision of my brother Driver J. As is the case in many of these migration matters, the grounds of appeal are identical. In this case, however, Ground 1 of this application is Ground 2 in CJS17.
Driver J dismissed the claim that there is jurisdictional error on the basis that it proceeds at least partially on a false premise and misapprehends the finding made the Authority. I adopt his Honour’s reasoning, which is set out at paragraphs 28 through to 34 of the Authority’s decision.
Ground 2, the no evidence ground of review, was explained in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26. It can be summarised as this, that where a finding has been made by inference, no error of law has been made as long as there was some basis for the inference. A tribunal cannot proceed on speculation or suspicion and a finding of fact will not be assailable unless the finding was not reasonably open on the evidence.
The Authority clearly considered the situation as to whether or not a fine would be payable or if the applicant was put before a magistrate in Sri Lanka as an illegal departee and pleaded guilty or if the applicant pleaded not guilty. The Authority also considered if there would be a requirement for a bond to be posted by a relative if the applicant pleaded not guilty to being an illegal departee. It is the situation that both the applicant’s mother and father, either one or both of them, or other extended family could act as a guarantor if required. There was no certainty that a guarantor would be required however. The Authority noted that on many occasions people are released, where they pleaded not guilty, on their own recognisance.
If the applicant pleaded guilty, he would be released with a fine. It is noted that the applicant’s mother and father assisted him in his travel to Australia and there was no reason to believe that his family could not assist him if he returned to Sri Lanka with the payment of any bond or fine. This is not a matter which is in the circumstances of ARK16 v Minister for Immigration [2017] FCCA 3087 or DHK16 v Minister for Immigration and Anor [2017] FCCA 3228, where the applicant advanced substantial grounds regarding his family’s impecuniosity and that his family would not be in a position to assist him in those circumstances. I am of the view that this ground invites the Court to engage in merits review and I find no jurisdictional error. This ground must fail.
Ground 2 of the amended application asserts that as a result of the change of government in Sri Lanka and the new information contained within the country information, this has impacted the Authority’s decision so that it has now become legally unreasonable. It is suggested that the previous country information is no longer relevant, as the situation has changed dramatically following the proposed return of Mahinda Rajapaksa. I note that even that assertion is no longer correct, as the Supreme Court of Sri Lanka found in favour of Prime Minister Wickremesinghe and he is now continuing to govern as Prime Minister of Sri Lanka.
I do note, however, that the security situation in Sri Lanka has changed enormously following the bombings and subsequent civil unrest caused as a direct result. These are, however, not matters that this Court can take into account. Australian Retailers Association v Reserve Bankof Australia [2005] FCA 1707, makes reference to the fact that a decision may become legally unreasonable subsequent to the decision being made.
The current situation, however, can be clearly distinguished from that decision. The discretion of the Court has been exceedingly curtailed as a result of the legislative scheme that has been put in place for ‘fast track applicants’. The Court cannot engage in a review of the decision on a merits review basis. Any factual matters are frozen in time as to the matters that were before the original delegate. Any new information which meets a restricted statutory test as ‘new information’ and at the discretion of the Authority should be admitted pending a review by the Authority.
Whilst acknowledging the significantly changed security situation within Sri Lanka, these are not matters the Court can take into account. Accordingly, there is no jurisdictional error revealed in Ground 2 of the amended application.
Ground 3 of the amended application again refers to the change in security, human rights and the prevailing violence due to the recent bomb attacks in Sri Lanka. For the reasons as indicated above, no jurisdictional error is revealed.
Ground 4 asserts that the Authority failed to give due consideration, based on the applicant’s familial connections with the LTTE, particularly with his Uncle J. The Authority asserts this is jurisdictional error. Ground 4 must fail at a factual level, as the Authority identified and accepted that Uncle J was a member of the LTTE. The Authority gave careful consideration of this connection to the risk of real harm to the applicant, but concluded that his imputed connections with the LTTE would simply not exist. That was on the basis of the applicant’s age and also the time that he had spent out of the Sri Lanka since 2012. No jurisdictional error is apparent.
Ground 5 states that the Authority erred in law in failing to respond to the applicant’s claim to fear significant harm in Sri Lankan prisons based on the risk of being imprisoned for a short period of time on pre-trial remand. Again, this fails at a factual level. At paragraph 44 of its decision, the Authority expressly considered the risks involved in any pre-trial remand under the complementary protection requirements. The Authority came to a view that the applicant did not face a risk of significant harm in terms of s 36(2)(aa) of the Act. I am not satisfied any jurisdictional error has been committed in this regard.
Conclusion
For the reasons set out above, I am not satisfied that the application for relief has been made out. I dismiss the application.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 25 June 2019
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