Axx18 v Minister for Home Affairs

[2019] FCCA 1373

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXX18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1373

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made findings that were unfair – whether the authority failed to give proper., realistic and genuine consideration to the applicant’s claims – whether the Authority came to the wrong conclusion that the applicant was not considered a refugee – whether the Authority came to the wrong conclusion that the applicant is not a person in respect of whom Australia has protection obligations – whether the Authority was bias – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17

SZGUP v Minister for Immigration and Anor (2008) 100 ALD 518

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

Applicant: AXX18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 519 of 2018

Judgment of: Judge Humphreys

Hearing date: 22 May 2019

Date of Last Submission: 22 May 2019

Delivered at: Parramatta

Delivered on: 22 May 2019

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondents: Ms Lloyd, HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The issue of costs is adjourned until 9:30am on 24 May 2019.

DATE OF ORDERS: 22 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 519 of 2018

AXX18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant seeks judicial review of the decision of the Immigration Assessment Authority (“the Authority”) dated 24 January 2018, which affirmed a decision of a delegate of the Minister to not grant the applicant a Safe Haven Enterprise visa. I firstly note that this matter was adjourned from a previous occasion to allow the applicant to have access to the Court book and a copy of the first respondent’s submissions.

Background

1. The applicant is a male citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 12 October 2012. The applicant is approximately 26 years old as at today. The applicant’s claims for protection are summarised in an affidavit sworn on 21 February 2018, which reflect the applicant’s claims made in the application process.

2. The applicant claims that a number of close relatives were cadre in the Liberation Tigers of Tamil Eelam (“LTTE”), including two aunts who died during the conflict in Sri Lanka and an uncle who was a senior LTTE cadre who now resides in Germany. The applicant’s father was a member of the LTTE border force and also worked as a cook at an LTTE base. The applicant’s father died in 2008.

3. While the applicant was at school, he became friends with the son of a senior LTTE cadre. The applicant attended tutoring at an LTTE-controlled house with his friend and other children. The applicant was known to, and visited, his friend’s house and was known to his friend’s father, who was given the pseudonym VM, who, as I indicated, was an LTTE Cadre. In 2008, the LTTE tried to recruit the applicant, but his mother convinced them not to take him.

4. Following the end of the conflict in April 2009, the applicant was detained in an Internally Displaced Persons (“IDP”) camp until April 2010. Following the applicant’s release, he was questioned by the Criminal Investigation Department (“CID”) about his friend’s father, VM, and required to report to a nearby CID office.

5. The applicant left Sri Lanka in September 2012. The applicant says this was due to fears of an imputed LTTE involvement on the applicant’s part. Since leaving Sri Lanka, the applicant has been advised that his brother was detained for four days and questioned about the applicant’s whereabouts and the applicant’s LTTE involvement. The applicant states he also has fears due to his illegal departure from Sri Lanka.

The Authority Decision

1. The Authority, in its decision, accepted the applicant’s identity and background at paragraph 11. It accepted that in 1994/1995 the applicant moved to an LTTE-controlled area. It accepted that the applicant has relatives who are LTTE cadres. The Authority accepted his father worked as an LTTE cook and was a member of the LTTE border force. The Authority accepted the applicant was good friends with the son of a senior LTTE cadre, VM, and the applicant spent time with his friend and his friend’s father.

2. The Authority accepted that the applicant attended LTTE martyr day ceremonies with his friend and VM. The Authority accepted that the applicant and his family were detained in an IDP camp from April 2009 to approximately April 2010. It is clear that the delegate and the Authority accepted many of the applicant’s claims. The Authority did not find, however, that the applicant was identified during the screening process at the IDP camp, as a person of interest for LTTE connections.

3. The Authority noted in paragraph 20, that the applicant was not an LTTE fighter and that he was not held in detention as a person having LTTE connections and, thus, has no imputed LTTE connections. At paragraph 22, the Authority accepted that the applicant was questioned by CID men at his home in August 2012 and that he was questioned as to whether or not he was an LTTE member.

4. The Authority found that the applicant was of no real interest to the CID. If the applicant was of real interest to the CID he would have been subject to questioning earlier than 2012, noting he was released from the IDP camp in 2010. The Authority did not accept that the CID had visited the applicant’s home on several occasions and did not accept, that at the time of his departure, he was of any real interest to security authorities.

5. At paragraph 28 of the decision, the Authority did not accept that the applicant’s older brother was detained for four days and questioned about the applicant and his whereabouts.

6. The Authority accepted that the applicant had attended two LTTE martyr’s day celebrations in Australia, but would not have been personally identified, nor would his presence be noted by Sri Lankan authorities. There was also a comment that the applicant would have felt some compulsion to attend given his aunt’s death during the conflict.

7. At paragraph 33, the Authority noted it has been some five years since the applicant left Sri Lanka and that at the time of its decision, the security situation had improved markedly. At paragraph 37, the Authority found that at the time the applicant left Sri Lanka, Sri Lankan security authorities had no real interest in him.

8. At paragraphs 38 and 39, the Authority considered the applicant’s treatment upon return as an illegal departee from Sri Lanka. The Authority accepted that the applicant may be detained and questioned upon his return and could spend some time, as in days, in a crowded and substandard prison if the applicant was unable to be brought before a magistrate quickly, but once before a magistrate, the applicant would be released with a fine or on bail.

9. At paragraphs 41 and 42, the Authority found there was no real chance of harm upon the applicant’s return and that the applicant did not meet the criteria set out in s 36(2)(a) of the Migration Act 1958 Cth (“the Act”). On a similar basis, the Authority found that the applicant did not meet the requirements in terms of complementary protection under s 36(2)(aa) of the Act. This was considered at paragraphs 43 to 48 of the Authority’s decision.

The Grounds of Appeal

1. The grounds of appeal were drafted by Mr Byron Nazer, a solicitor who was previously acting for the applicant. There are five grounds that are set out in full below.

   Ground 1

   The Immigration Assessment Authority (IAA) claims that because of minor differences in the statement of the Applicant that he embellished his statements and that it is inconsistent.

   Particulars

   At the interview the Delegate for the Minister stated to the applicant that according to his written statement, he claimed that he was too afraid, after two CID officers came to his house, that he would be imputed with the LTTE involvement and left Sri Lanka in September 2012. The Delegate of the Minister stated that the applicant did not mention at his Arrival Interview why he left Sri Lanka. The Delegate of the Minister found the applicant's statements are inconsistent as one statement does not support the other.

   The Delegate of the Minister did not consider that a person, because of his experiences, who was in fear of the authorities in his own country may still feel apprehensive of any authority. He may, therefore, be afraid to speak freely and give a full and accurate account of his case.

   Ground 2

   The IAA failed to give proper, realistic and genuine consideration to the applicant's claim.

   Particulars

   The delegate of the Minister gave excessive weight to what was stated by the applicant during the Arrival Interview and did not consider the following:

   a) Before the applicant and his family became displaced their house was next to an LTTE base;

   b) The CID would threaten and interrogate the applicant;

   c) The applicant's close relatives, were LTTE cadres who served in the LTTE for several years.

   Ground 3

   The IAA drew the wrong conclusion that the applicant is not a refugee.

   Particulars

   Although the situation in Sri Lanka has changed there are continued reports of human rights violations in Sri Lanka, including the use of torture against suspects and the ability of security forces to act with impunity. The Sri Lankan government still takes a hard line against former senior LTTE leaders and cadres who may have slipped through or those who are suspected of trying to revive the LTTE. In 2015 and 2016 a number of returning Tamils, mostly known former LTTE members, including some former LTTE cadres who have gone through the rehabilitation process, have been detained on arrival at Colombo airport.

   Ground 4

   The IAA’s conclusion that the applicant is not a person in respect of whom Australia has protection obligations were illogical or irrational, manifested a misunderstanding or misconception of the Convention test or arose out of a failure to take relevant information into account.

   Particulars

   The IAA was not satisfied that the applicant is a refugee as defined by s 5H(1) of the Act. The IAA found that the applicant does not satisfy the criterion set out in paragraph 36 (2) (a) of the Migration Act for a protection visa.

   Ground 5

   The IAA was biased in its decision to affirm the decision of the Department of Immigration and Border Protection.

   Particulars

   The IAA only considered what they perceived to be discrepancies and did not consider the real issues. They did not consider whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka. The IAA did not consider whether 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 will suffer significant harm.

Considerations

1. Ground 1 is that the Authority claims that because of minor differences in the statement of the applicant, that he embellished all of his statements and that his claims are inconsistent. Reference is made here to his arrival interview and subsequent statements. This, in my view, is not a proper ground for review by this Court. It simply disputes the findings of the Authority and invites the Court to engage in merits review. This is not the function of this Court as per SZGUP v Minister for Immigration and Anor (2008) 100 ALD 518.

2. Ground 2 alleges that the Authority failed to give proper, realistic and genuine consideration to the applicant’s claims. I am satisfied the various particulars set out within the grounds, are merely findings of fact. I am satisfied that the Authority did consider these matters. I have set out above, the various findings that the Authority made and I am satisfied that the Authority did consider each of the matters outlined in the particulars.

3. The Authority did accept that the applicant had three close relatives who were LTTE cadres. The Authority quoted from the applicant’s statements at arrival that his house was next to a LTTE base. The Authority considered the questioning of the applicant and concluded it was based on the applicant’s family home being located near VM’s house.

4. The Authority accepted that the applicant was questioned in August 2012 by two men from the CID about VM and whether the applicant was an LTTE member. However, at paragraph 25, the Authority found that this did not suggest that the applicant was of any real interest to security authorities. I am not satisfied that Ground 2 reveals any jurisdictional error on behalf of the Authority.

5. Ground 3 simply states that the Authority drew the wrong conclusion that the applicant is not a refugee and then provides some further particulars. I am satisfied that Ground 3 simply disputes the findings of the Authority and again invites merits review by this Court, which is simply impermissible. Ground 3 cannot be sustained.

6. Ground 4 is that the Authority’s conclusion, that the applicant was not a person in respect of whom Australia has protection obligations, was illogical or irrational, manifested a misunderstanding or misconception of the convention test or arose out of a failure to take relevant information into account. The particulars for this ground simply state that the Authority was not satisfied that the applicant was a refugee and that he did not satisfy the criterion set out in s 36(2)(a) or s36(2)(aa) of the Act.

7. The alleged particulars are not particulars, in my view, at all. It simply makes a comment and offer no explanation as to how the findings were illogical or irrational. I am not satisfied that Ground 4 reveals any jurisdictional error. I am also satisfied that the failure to particularise the alleged inconsistencies is sufficient, of itself, to dismiss this ground and in this regard see WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

8. Ground 5 alleges bias in the Authority’s decision to affirm the decision of the delegate. The particulars indicate that the Authority only considered what they perceived to be discrepancies and did not consider the real issues. They state that the Authority did not consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk he will suffer significant harm.

9. The particulars do not indicate any basis of alleged bias. Bias is either apprehended or real. There is nothing in the particulars that indicate that either there was actual bias on behalf of the Authority or that there were any basis upon which a reasonable bystander would perceive that the Authority would not bring an open mind to its decision-making process. An allegation of bias must be proven by the applicant in order to be successful. In this regard see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at paragraph 69.

10. In my view, the particulars of Ground 5 do not allege bias at all; rather, they simply dispute the outcome and, again, invite merits review.

Conclusion

1. Accordingly, I am not satisfied that any of the grounds of the application are made out and the application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  17 July 2019