Azq17 v Minister for Immigration

[2021] FCCA 577

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZQ17 v MINISTER FOR IMMIGRATION & ANOR [2021] FCCA 577

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

ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that the IAA failed to consider all of the applicant’s claims.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473BB, 473CA, 474

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum

Legacy Caseload) Act 2014, sch.4

Cases cited:

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

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Applicant: AZQ17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 696 of 2017

Judgment of: Judge Cameron

Hearing date: 16 March 2021

Date of Last Submission: 16 March 2021

Delivered at: Sydney

Delivered on: 25 March 2021

REPRESENTATION

Counsel for the Applicant: Mr G. Foster

Solicitors for the Applicant: Sentil Solicitor

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 696 of 2017

AZQ17

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 the Cocos Islands on 14 October 2012 without a visa permitting him to enter and stay in Australia.  He subsequently lodged an application for a Safe Haven Enterprise Visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity, the imputation to him of a political opinion supportive of the Liberation Tigers of Tamil Eelam (“LTTE”), his illegal departure from Sri Lanka and his asylum application abroad.  On 31 August 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 this judicial review proceeding 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 IAA’s decision will be dismissed.

FAST TRACK REVIEW LEGISLATIVE FRAMEWORK

1. On 18 April 2015 the 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. 

Definitions

1. Section 5(1) of the Act relevantly defines a “fast track applicant” as 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. The applicant is a fast track applicant.

3. 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.

Fast Track Process and Procedures

1. Part 7AA of the Act sets out the IAA fast track process and procedures.

2. Section 473CA is found in pt.7AA 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.

STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA

1. Since 18 April 2015, the Act has prescribed the criteria for the grant of a protection visa relevantly in the following terms:

   36 Protection visas—criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   …

   (2A)  A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

   5H Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

   (a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)the real chance of persecution relates to all areas of a receiving country.

   …

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   …

   (b)the persecution must involve serious harm to the person; and

   …

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   …

BACKGROUND FACTS

Protection visa claims

1. As summarised by the Minister in his written submissions, the applicant relevantly made the following claims:

   3.The applicant claimed he was born in Jaffna in northern Sri Lanka, an area formerly controlled by the Liberation Tigers of Tamil Eelam (LTTE).  The applicant’s father had a farm in Jaffna and was required to provide the LTTE with food.  While the applicant was still young, his family was displaced from Jaffna by the civil war.  They moved to the Vanni district where the LTTE made them stay and continue to farm and supply food to the LTTE.  When the applicant was old enough he assisted his father.  He was also required to cook food and dig bunkers for the LTTE, and assist them with setting up ‘Heroes Day’ celebrations. From 2002 the applicant’s family moved a number of times to avoid the worst of the civil war, but always resided in LTTE controlled areas.

   4.In around 2009 the applicant’s mother and a brother were killed by shelling, and the applicant’s wife injured.  The applicant and his family then lived in a camp for displaced people. While in the camp the Sri Lankan Army (SLA) interrogated all the Tamils about their involvement with the LTTE.  The SLA told the applicant that they were aware that he had been involved in providing assistance to the LTTE, but the applicant denied that this had occurred.

   5.When the applicant and his family returned to their land in late 2009 they found that the SLA had built a camp there.  The SLA kicked them, and ordered them to live on another piece of land.  In around 2011, the applicant began working for a Sinhalese employer who refused to pay him and threatened to accuse the applicant of LTTE involvement if he did not continue to work for [it]. The applicant was too fearful to continue to work there, so in August 2012 he tried to get his land back from the SLA. The SLA detained and beat the applicant.  The SLA released the applicant with an order that he report to the SLA camp every day. When the applicant attended the camp the following day, the SLA showed him to Tamil detainees and then informed him that these detainees had identified him as an LTTE member.  The applicant was then taken to a Tamil militant for questioning.  The applicant was able to bribe the Tamil militant and the militant helped him to escape the camp and told him to flee Sri Lanka to avoid being killed by the SLA. 

   6.The applicant then made arrangements to flee Sri Lanka for Australia. Since the applicant has been in Australia, the SLA has beaten the applicant’s wife and she has been blackmailed by a Tamil militant with respect to the applicant’s illegal departure from Sri Lanka.  She has moved to another area to escape.

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 summarised by the Minister in his written submissions in the following terms:

   9.As well as the material provided by the Secretary under s 473CB of the Migration Act 1958 (the Act), the IAA obtained a new country report from the Department of Foreign Affairs and Trade (DFAT) and received a submission from the applicant on 29 September 2016, attaching 3 reports containing country information.

   10.To the extent that the submission provided the applicant’s response to the delegate’s decision, the IAA considered that it was not new information and could be considered.

   11.With respect to the country information attached to the applicant’s submission, the IAA found that a report from the Commission for Justice and Peace, which post-dated the delegate’s decision, could be considered: s 473DD(a) of the Act. It was not satisfied that a report from Amnesty International could not have been provided to the delegate or that it was credible personal information, and so did not consider it: s 473DD(b). The IAA was also not satisfied that an article from TamilNet contained any relevant information that should be considered.

   12.The IAA considered that there were exceptional circumstances for considering a DFAT report dated 24 January 2017, which updated the DFAT report relied upon by the delegate.

   13.The IAA considered the applicant’s evidence provided during his entry interview in 2012, his SHEV application and at interview with the delegate.  It also considered the applicant’s explanation as to why there were inconsistencies in that evidence.  While the IAA accepted that the applicant may have feared mentioning the assistance he had provided to the LTTE during his entry interview, it was not satisfied that this explanation accounted for the discrepancies in the applicant’s account.  The IAA considered that the inconsistencies and discrepancies in the applicant’s evidence were significant, and undermined his credibility.

   14.The IAA considered it implausible that the applicant only came to the attention of the SLA as an imputed LTTE member in August 2012, given that he claimed to live next to the camp for 3 years prior.  It did not accept that the applicant’s land had been occupied by the SLA or that he came to the adverse attention of the SLA, or Tamil paramilitary, as a result.  It also rejected the applicant’s associated claim that his wife had been the subject of attention from either group since the applicant had departed Sri Lanka.

   15.On the basis of country information, the IAA considered it plausible that the applicant and his family were displaced during the civil war, and that the applicant had at times been forced to assist the LTTE in various ways.  The IAA was satisfied that the applicant’s mother and brother had been killed in 2009 and that his wife had been injured.  The IAA also accepted that the applicant may have been subject to poor working conditions in 2011, but noted that the applicant had not claimed that any adverse attention from the SLA resulted from this.

   16.The IAA accepted that the applicant had departed Sri Lanka illegally, and that if he returned he would do so as a failed asylum seeker from Australia.  The IAA accepted that the applicant would face charges for having departed Sri Lanka illegally.  It was not satisfied that the applicant had a profile that would raise concern with the Sri Lankan authorities upon his return, and found that the applicant would most likely be fined.  The IAA was satisfied that the relevant laws and penalties were of general application and not applied in a discriminatory manner or selectively enforced. 

   17.On the basis of country information, the IAA was not satisfied that the applicant would be subject to a degree of societal discrimination amounting to serious harm on the basis of his Tamil ethnicity.  It concluded that the applicant did not face a real chance of serious harm by virtue of his Tamil ethnicity, for any actual or imputed LTTE connections or by reason of the events claimed to have occurred between 2009-2012. 

   18.Also on the basis of country information, the IAA was not satisfied that there was a real chance the applicant would be harmed by Sri Lankan authorities by reason of being a failed asylum seeker.

   19.The IAA was not satisfied that the applicant faced a real chance of serious harm due to any brief time spent in detention as a result of being charged with departing Sri Lanka illegally.  The IAA was satisfied that any penalty the applicant may face would not constitute persecution and found that the applicant did not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia or any other reason.

   20.The applicant was found not to have a well-founded fear of persecution or to meet the requirements of s 36(2)(a) of the Act.

   21.Having found the applicant did not satisfy the refugee criterion, the IAA assessed the applicant under the complementary protection provisions of the Act.

   22.On the basis of its previous findings, the IAA found that the applicant did not face a real risk of significant harm by reason of previous adverse attention from the SLA, Tamil militants or any other group due to imputed links to the LTTE.

   23.While it accepted that there was some risk that the applicant would face societal discrimination as a Tamil male from northern Sri Lanka, the IAA was not satisfied that the applicant faced significant harm on this basis.

   24.With respect to the applicant’s illegal departure from Sri Lanka, the IAA was not satisfied that the applicant faced a real risk of significant harm during the investigation process or while being held at the airport. While it was accepted that the applicant may be subject to poor prison conditions, it did not consider that this constituted significant harm for the purposes of the Act. Relevantly … the IAA found that in detaining returnees, ‘there is no intention to inflict pain or suffering, severe pain or suffering, or extreme humiliation’. The IAA did not accept that any questioning, imposition of a fine or short period of detention amounted to significant harm.

   25.The applicant was found not to satisfy the requirements of s 36(2)(aa) of the Act. [references omitted]

2. I also adopt that summary.

PROCEEDINGS IN THIS COURT

1. In his amended application the applicant alleged:

   3.The IAA erred when it found the Applicant does not have a well-founded fear of persecution within the meaning of s 5J (IAA decision paragraph 44), or that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm.

   Particulars.

   i.The IAA had regard to a Submission from the Applicant dated 29 September 2016 which responds to issues from the Delegate’s assessment and why the Applicant does not agree with the Delegate’s decision. 

   ii.In the Submission, the Applicant gave explanations concerning various aspects of his claims, and stated inter alia:

   a.      “Please note that if I am returned back to Sri Lanka how could I protect my family or feed my family when my lands are occupied by the security officers who are determined to kill me”;

   b.      “The Sri Lanka government through its security forces are trying to erase any evidence of the genocide by killing people and falsely charging us as LTTE supporters.  There is no livelihood for me or for my family.  Once I am killed l have no idea how my family would survive”;

   c.      “I have no place to live except at the sheds given by the army which sheds are routinely checked by the army for the former LTTE cadres and supporters”.  [‘new claims’]

   iii.The above statements raise the new claims which were not recognised, nor dealt with, as claims and were thus ignored by the IAA. The new claims clearly and squarely fall within those claims capable of requiring protection as set out in S 5J (5) (d), (e) and (f) ‘serious harm’ and also S 36 (2A) (d) and (e) ‘significant harm’ of the Migration Act.

   iv.Accordingly, the failure to consider the new claims amounts to a constructive failure to exercise its jurisdiction, and/or as a result of which the Tribunal came to conclusions that were unreasonable, and so amounts to jurisdictional error.

2. The applicant submitted that although the IAA had turned its mind to various of the issues he had raised in the context of his claims to fear harm in Sri Lanka were he to return, it had failed to consider those three particular claims he had raised in his written submissions of 29 September 2016.  It can be accepted that the IAA did not give those contentions specific or particular attention in its reasons, it saying simply in that connection:

   4.On 29 September 2016 the IAA received a submission (IAA submission) from the applicant. The IAA submission responds to issues arising from the delegate's assessment and why the applicant does not agree with the delegate’s decision.  I do not consider this to be new information and I have had regard to it.

1. In substance, the claims particularised by the applicant in the amended application were to the effect that:

   a)his ability to subsist and to provide for his family was compromised because his land had been taken over by the Sri Lankan Army;

   b)his ability to subsist and to provide for his family would be compromised because he would be accused of being an LTTE supporter;

   c)he would not be able to provide for his family once he was killed for being an LTTE supporter; and

   d)he had nowhere to live other than sheds where he would be detected by the Sri Lankan army.

2. The IAA’s factual findings that were relevant to those matters were:

   a)it had not been demonstrated that the applicant’s land had been taken over by the army as he claimed;  

   b)there was no evidence that indicated that the applicant had experienced or would experience any barriers to accessing employment or government services were he to return to Sri Lanka; and

   c)the applicant did not face a real chance of serious or significant harm by virtue of his Tamil ethnicity, because of any actual or imputed LTTE connections or by reason of the events claimed to have occurred between 2009-2012.  

3. It also should be kept in mind that the matter in issue before the IAA was whether the applicant faced relevant harm on return to Sri Lanka, not whether his family would face deprivation upon his return.

4. The IAA’s findings demonstrate that, as far as it was concerned, there was no factual basis for the contentions to which the applicant now says it should have given particular consideration.  In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 it was said:

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. (at 604 [47])

   Given that the factual premises for the contentions the applicant relies on in this proceeding were rejected by the IAA, and so a discussion of them by the IAA would have been otiose, the absence from the IAA’s reasons for decision of such a discussion does not lead me to infer that it did not consider them.  However, even if that were the case, the IAA’s factual findings mean that a failure by it to consider those arguments would not have been material to the outcome of the review or amount to jurisdictional error:  Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 443 [38].

CONCLUSION

1. Jurisdictional error on the part of the IAA has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:     25 March 2021