Bao18 v Minister for Immigration

[2020] FCCA 2290

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAO18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2290

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority identified erroneous issues – whether the Authority asked itself a wrong question – whether the Authority did not take into account relevant materials – whether the Authority took into account irrelevant materials – whether the Authority misapplied the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: BAO18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2546 of 2019

Judgment of: Judge Street

Hearing date: 19 August 2020

Date of Last Submission: 19 August 2020

Delivered at: Sydney

Delivered on: 19 August 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the First Respondent: Ms A Zinn via Microsoft Teams
Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

Date of order: 19 August 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2546 of 2019

BAO18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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) under pt 7AA of the Act made on 10 September 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil of Hindu religion from a particular area in the Eastern Province of Sri Lanka.

3. In November 2012, the applicant arrived in Australia as an unauthorised maritime arrival. In February 2016, the applicant applied for a Safe Haven Enterprise visa.

4. The applicant claimed, in summary, that he and his family were displaced during the civil war and relocated to a refugee camp. The applicant claimed that he was the subject of a physical and sexual assault during an interrogation. The applicant claimed that he and his family went to live in another location to avoid any further interrogations in the camp. The applicant claimed that, in the location to which he and his family moved, he undertook two study courses and worked in a hotel. The applicant claimed that the authorities continued to ask his parents where he was living and that his mother made a complaint to the Human Rights Commission. The applicant claimed to fear harm due to perceived links to the Liberation Tigers of Tamil Eelam (“LTTE”), an alleged assault in Sri Lanka, an alleged assault in his workplace here in Australia and having departed Sri Lanka illegally.

5. On 6 February 2017, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

6. On 9 February 2017, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. On 7 August 2017, a differently constituted Authority affirmed the Delegate’s decision. On 17 November 2017, that decision was set aside. On 7 February 2018, a differently constituted Authority again affirmed the decision of the Delegate. On 20 June 2019, the Federal Court of Australia granted writs quashing that decision and remitted the matter to the Authority. On 25 July 2019, the current constitution of the Authority wrote to the applicant identifying that the matter had been remitted for reconsideration.

7. The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application.

8. The Authority identified having regard to the material given by the Secretary under s 473CB of the Act.

9. The Authority referred to the submission from the applicant’s former representative attaching a letter from the applicant’s father dated 5 February 2017. The Authority found that there were exceptional circumstances to justify considering this new information.

10. The Authority also took into account an updated Department of Foreign Affairs and Trade (“DFAT”) country information report dated 23 May 2018.

11. The Authority summarised the applicant’s claims for protection.

12. The Authority identified the relevant law, including in an attachment of applicable law incorporated by pagination to the Authority’s reasons.

13. The Authority referred to the applicant being injured by shrapnel during a shelling attack. The Authority accepted that this happened to the applicant.

14. The Authority referred to the applicant’s claims in relation to being detained, interrogated and the subject of a sexual assault in 2006. The Authority considered that the applicant had exaggerated the interrogation at the camp but accepted that he was the subject of the alleged sexual assault in 2006.

15. The Authority found that the applicant avoided further harm by staying in the new location and not returning to the camp. The Authority found that the applicant was never detained or questioned again in the more than six years before he left Sri Lanka. The Authority took into account that the applicant was only detained on one occasion, was not sent to a rehabilitation camp and that there was no evidence that he was suspected of being an LTTE member or active supporter of the LTTE.

16. The Authority referred to the complaint made by the applicant’s mother. The Authority accepted as plausible that, in the two years after the end of the war, someone might have questioned the applicant’s mother about a relative. The Authority referred to the complaint made by the applicant’s mother concerning a step-brother being asked about first and then the applicant. The Authority took into account that the threats were not carried out, that there was no evidence that any money was paid by the applicant’s mother and that there was no mention of recurring visits as claimed by the applicant. The Authority also took into account that the applicant’s mother’s address was very close to where the applicant claimed he lived from 2010 to 2012 and that if the applicant was of adverse interest he could easily have been found. The Authority gave some weight to the mother’s complaint that some unknown men asked on one occasion about the applicant’s cousin and the applicant in 2011.

17. The Authority referred to the letter dated 5 February 2017 from the applicant’s father. The Authority identified the implausibility in relation to the assertions in that letter and gave the letter from the applicant’s father no weight.

18. The Authority did not accept that the applicant was of ongoing adverse interest to the Sri Lankan authorities. The Authority took into account that the applicant was never questioned or detained after 2006 and that the Sri Lankan authorities could have found the applicant if he was of interest. The Authority found that the applicant’s claims that the Sri Lankan authorities had been looking for him since he left Sri Lanka is an embellishment.

19. The Authority found that the applicant does not face a real chance of harm in the reasonably foreseeable future for reason of being a young Tamil male from a particular location.

20. The Authority found that the applicant does not face a real chance of harm in the reasonably foreseeable future as a result of the events that occurred in 2006.

21. The Authority found that the applicant does not face a real chance of harm for reason of his ethnicity as a Tamil in his own area.

22. The Authority referred to the applicant’s illegal departure. The Authority accepted that the applicant may lose his liberty for a short time but found that this does not constitute serious harm as defined by s 5J(5) of the Act. The Authority, taking into account country information, found that the applicant’s fear of harm whilst being detained is not well-founded. The Authority found that the chance of the applicant being tortured or facing other harm whilst being processed or detained for a short period on arrival in Sri Lanka is too remote to amount to a real chance. The Authority found that the applicant would not face a real chance of harm as a returning failed Tamil asylum seeker.

23. The Authority referred to the applicant’s scarring on his left shoulder and a report from a doctor dated 24 January 2017. The Authority found that the chance of the applicant’s scarring being noted during the processing at the airport is remote. The Authority did not accept that the applicant would be suspected of links to the LTTE in the remote chance that the scars come to the attention of the Sri Lankan authorities. The Authority found that the applicant does not have a real chance of harm because of the scarring on his body.

24. The Authority referred to the applicant’s claim of a sexual assault in his workplace in Australia. The Authority did not accept that because the applicant suffered sexual assault whilst being interrogated in 2006 and an incident at work in Australia in 2017 he has a greater vulnerability to further sexual abuse if returned to Sri Lanka. The Authority found that the applicant does not face real chance of harm in the nature of being sexually assaulted or socially ostracised in the reasonably foreseeable future.

25. The Authority referred to the claim that the applicant’s cousin had been granted a protection visa in Australia. The Authority did not accept that the applicant faces a real chance of harm because a cousin has been granted a protection visa.

26. The Authority took into account the applicant’s claims cumulatively and found that the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

27. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

28. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 3 October 2019. On 24 October 2019, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court.

3. The applicant submitted orally that all the documents he provided were truthful and that the Authority had not properly considered the same. It is apparent from the Authority’s reasons that the Authority gave some weight to the applicant’s mother’s complaint, no weight to the applicant’s father’s letter and took into account the doctor’s report. The Authority’s reasons reflected an active intellectual engagement with the applicant’s claims and evidence. It was a matter for the Authority to determine what weight to give to the evidence. The Authority’s adverse findings cannot be said to be illogical or irrational and were open for the reasons given by the Authority. The applicant’s disagreement with the Authority’s adverse findings does not identify any jurisdictional error.

4. The applicant submitted orally that he could not go back to Sri Lanka. The Authority, however, found that the applicant does not face a real chance or real risk of significant harm or serious harm if returned to Sri Lanka in the reasonably foreseeable future. The applicant’s submissions in this regard invite merits review. This Court has no power to review the merits and cannot decide the matter on compassionate or discretionary grounds.

5. The applicant’s oral submissions failed to identify any jurisdictional error.

Grounds in the application

1. The grounds in the application are as follows:

   1. Identifying wrong issues

   2. Asking the wrong questions

   3. Ignoring relevant materials

   4. Relying on irrelevant materials; or

   5. Incorrect interpretation and/or application to the facts applicable law.

2. Without proper particulars, none of the grounds identified are capable of making out any jurisdictional error. Further, in the absence of proper particulars, these grounds reflect no more than a disagreement with the adverse findings by the Authority and in substance invite impermissible merits review.

Ground 1

1. In relation to ground 1, it is apparent that the Authority correctly identified the relevant law, identified the whole of the applicant’s claims and made adverse findings dispositive of the applicant’s claims that were open to the Authority. Further, the Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims. There is no basis to find that the Authority identified erroneous issues. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, given that the Authority correctly identified the relevant law and the applicant’s claims and evidence, there is no basis to find that the Authority asked itself a wrong question. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, there is no material that has been identified that the Authority ignored. It is apparent that the Authority expressly took into account the applicant’s mother’s complaint, the applicant’s father’s letter and the doctor’s report. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, no irrelevant material taken into account by the Authority has been identified. Accordingly, no jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, the Authority correctly identified the relevant law and there is no basis to find that the Authority misapplied the relevant law or incorrectly interpreted the relevant law. No jurisdictional error is made out by ground 5.

1. As the application fails to make out any jurisdictional error and nothing submitted orally by the applicant identifies any jurisdictional error, the application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 19 August 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 13 November 2020