Bdu17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 69

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BDU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 69

File number(s):

SYG 820 of 2017

Judgment of:

JUDGE STREET

Date of judgment:

24 September 2021

Catchwords:

MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Subclass 790 Visa (SHEV) – whether the Authority’s decision was affected by jurisdictional error – whether the Authority arbitrarily preferred some country information over other country information – whether the Authority erred in not considering a psychological report provided by the applicant – whether the Authority failed to consider relevant evidence - whether the Authority could remit the decision to the Department for rehearing – consider relevant new information – no jurisdictional error – amended application dismissed  

Legislation:

 Migration Act1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa), 473CB, 473CC(2)(b), 473DD, 476

Migration Regulations 1994 (Cth) reg 4.43

Cases cited:

 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Number of paragraphs:

65

Date of hearing:

22 July 2021

Place:

Sydney

Counsel for the applicant:

Mr B Zipser

Counsel for the respondent:

Mr T Reilly

Solicitors for the respondent:

Sparke Helmore

ORDERS

SYG 820 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BDU17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	24 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The amended application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”). The application is in respect of an Immigration Assessment Authority (“the Authority”) decision made on 23 February 2017, affirming a decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Safe Haven Enterprise, Subclass 790, Visa (“the Visa”).

   BACKGROUND AND APPLICANT’S CLAIMS

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

3. The applicant arrived in Australia in October 2012. On 3 November 2015, the applicant applied for the Visa.

4. In summary, the applicant claimed to fear harm on the basis of his Tamil ethnicity, his political opinion relating to both his and his mother’s actual involvement in the Llankiai Tamil Arusau Kadchi (“the ITAK”), being part of the National Tamil Alliance (“the TNA”), the applicant’s imputed support for the Liberation Tigers of Tamil Elam (“the LTTE”), and on the basis of his illegal departure from Sri Lanka.

5. On 9 September 2016, the delegate found that the applicant failed to meet the criteria for the grant of the Visa.

   DECISION OF THE AUTHORITY

6. On 16 September 2016, the Authority wrote to the applicant explaining that it would conduct a review of the application for the Visa. The letter attached a factsheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions that were identified in the Authority’s reasons. 

7. The Authority identified the background to the applicant’s application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act. The Authority identified receipt of the submission, found that it was not new information and identified having considered it.

8. The Authority then turned to identifying new information. Relevantly, the Authority found that there were exceptional circumstances to have regard to the new information other than a psychologist assessment report, dated 9 July 2015, from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”), and certain country information. 

9. However, the Authority was not satisfied that this information could not have been provided before the delegate’s decision. The Authority also found that the information was about the population or Tamil population in general, and did not contain credible personal information.

10. The Authority then summarised the applicant’s claims. The Authority accepted that the applicant spent most of his life having been born in a particular district of the Eastern Province, and that he lived and worked in Qatar from February 2007 until February 2009. The Authority also found that the applicant lived in Iraq from October 2009 until July 2010. 

11. The Authority referred to the applicant having lived with his mother, and his mother being politically active with the ITAK, which formed part of the TNA. The Authority referred to the applicant’s eldest brother being taken by the Sri Lankan Army (“the SLA”) in 1990 and never being seen again. The Authority also referred to the applicant’s second brother having lived in a particular district and being estranged from the family because of the mother’s politics, that the fourth brother lives overseas and that the fifth and sixth brothers live in different areas due to the mother’s involvement in politics. The Authority also referred to the applicant’s youngest brother, who lives in the district in which the applicant was born. 

12. The Authority accepted the applicant’s claims in relation to his older brother. The Authority also accepted that the applicant’s father was taken by the SLA in 1984 and interrogated and tortured. The Authority accepted that the applicant was taken by the SLA on two occasions in late 2006 and early 2007, interrogated about being with the LTTE and tortured. The Authority accepted that this prompted the applicant to travel to Qatar, where he lived and worked for two years, before returning to his home district to spend time with his father before he passed away. 

13. The Authority identified that these claims were consistent with country information. The Authority accepted that the events occurred to the applicant and his family because they are Tamils, and because they were suspected of having links with the LTTE.

14. The Authority referred to the applicant’s claim that his father was detained and tortured because his mother stood for election in 1994 as a candidate with the ITAK, and accepted that this would be a contributing factor to the detention and the abuse of the applicant’s father at that time. 

15. The Authority took into account that the war in Sri Lanka ended in May 2009. The Authority also took into account that 20 years have passed since the applicant’s father’s detention and the brother’s disappearance, and 10 years have passed since the applicant’s detention and mistreatment. Further, the Authority took into account that the applicant was always released without charge, and that he has never been charged with an offence under the Emergency Regulations or the Prevention of Terrorism Act (“PTA”). 

16. The Authority also referred to the change of government in Sri Lanka since the applicant’s departure and that the election in 2015 indicated that the Tamil vote was significant in the particular person’s victory. The Authority referred to that campaign being one of democratic reform, good governance and anti-corruption. The Authority referred to country information that, under the new government, forced registration of Tamils no longer occurs, most checkpoints have been removed and that monitoring and harassment of Tamils in their day to day life has generally ceased.

17. The Authority also referred to the fact that, whilst there have been improvements since the end of the war including in the Eastern Province where the applicant lived, there is country information which indicates that human rights abuses continue to occur. The Authority referred to various country information facts, indicating that the current government is vigilant to ensure there is no resurgence of the LTTE or activism towards a separate Tamil state. As such, monitoring and harassment of Tamils continues, although at a reduced level.

18. It was in these circumstances the Authority found that it was satisfied that the chance of the applicant facing serious harm in the reasonably foreseeable future in Sri Lanka was remote, despite his and his family’s experiences as accepted by the Authority, his Tamil ethnicity, and associated imputed political opinion as a supporter of the LTTE is remote. The Authority found that the applicant’s fears of persecution in this regard were not well-founded. 

19. The Authority then turned to the applicant’s claims in relation to his mother’s involvement as a political candidate for the ITAK. The Authority also considered that the applicant was a candidate of the ITAK in 1984, and that the applicant was an ITAK in the local elections in 2011. The applicant contended that his mother stood again for election in 2015 as the ITAK candidate, and that she is the president of a particular group in a particular district. The Authority referred to evidence provided by the applicant in support of those claims.

20. The Authority referred to the Visa interview, in which the applicant clarified that he had no political involvement prior to his return to Sri Lanka from Iraq in July 2010. In this regard, the Authority referred to the applicant not speaking knowledgeably about the history of the ITAK, being confused about the president and the TNA president, and speaking in general terms.

21. The Authority then referred to the conduct of the interview with the delegate. Whilst having some doubts about the veracity of the applicant’s claims that he stood for election in 2011, the Authority was prepared to give the applicant the benefit of the doubt and accept his claim that he did so.

22. The applicant claimed that, as soon as it became known that he was an ITAK candidate, he was threatened with harm by unknown persons and pressured to withdraw his candidacy. The applicant clarified that he was not physically attacked during the election, however threats to harm him continued after the election. The applicant claimed that, on two occasions, people came to his home at night and harmed his mother, and wanted to know his whereabouts. The applicant alleges his mother complained to the police and to the Human Rights Commission. The Authority accepted that, during the election campaign, the applicant was threatened with harm by unknown men and found those claims were supported by country information.

23. The Authority turned to considering whether the applicant faced a real chance of serious harm in the future. The Authority referred to the applicant’s information in his application, which claimed that after returning from Iraq in July 2010, he lived at his home address until October 2012, when he departed Sri Lanka. The applicant also clarified that, in the 11 months from the time of the election to the date of his departure, he was not harmed. 

24. The applicant claimed that he was not harmed because he hid in the bushes beside his home, and then in the rice paddy area. The Authority noted that, at the Visa interview, the applicant stated that he worked in his mother’s shops and that his mother’s shops are still functioning. The Authority found that the applicant continued to work at his mother’s shop and was at home until about 6 pm every night, and then hid in the nearby areas. In these circumstances, the Authority was satisfied that if unknown armed men generally intended to harm the applicant, they would have been able to do so. 

25. The Authority also took into account that the applicant’s mother continues to live in the family home and continues to be politically active. The Authority took into account that the applicant’s mother claims that she is still being harassed by armed men, but took into account that she has not been harmed. The Authority also found that more than six years had passed since the applicant served as a candidate for the ITAK. 

26. The Authority also took into account the role of the TNA, of which the ITAK was a member, in securing 10 seats. The Authority accepted that politically motivated violence around election time occurs in Sri Lanka but, taking into account the stronger position of the ITAK and TNA in the east of Sri Lanka and the six years that has passed, found that the applicant does not face a real chance of serious harm in Sri Lanka because of his previous political involvement as a candidate for the ITAK in Local Government elections in 2011. 

27. The Authority then turned to the applicant’s mother’s claimed political involvement. The Authority identified the document provided, purporting to be a message from the Sri Lankan Police or Criminal Investigation Department (“CID”) to the applicant’s mother, requesting her to attend for investigation in August 2016. The Authority identified that it was claimed that the applicant’s mother was interrogated about the whereabouts of the applicant and it was demanded that the applicant be produced for the inquiry. 

28. This is clearly a reference to the submissions provided to the Authority, being part of the content which appears at page 194 of those submissions. The Authority also referred to a copy of a letter dated 15 August 2021, and a letter from the Human Rights Commission acknowledging receipt of the mother’s complaint letter dated 15 August 2016. The Authority did not accept that these documents were genuine.

29. The Authority found it highly irregular that the CID would use a message form to request a person attend an interrogation at their headquarters.  The Authority found it highly questionable that the CID would mention the request in August 2016, that the person attend was a political candidate in a parliamentary election in 2015. The Authority found the document was self-serving and was not genuine evidence of the applicant’s mother’s interrogation in August 2016 by the CID. The Authority did not accept that the complaint to the Human Rights Commission and acknowledgement were genuine documents, and found that they were not genuine evidence of the applicant’s mother being interrogated by the CID in August 2016 as claimed. 

30. Regarding the August 2016 investigation of the applicant’s mother, the Authority also referred to a letter purporting to be from a Member of Parliament, dated 15 September 2016. That information was consistent with the third last paragraph of the letter that appears at page 205 of the Court Book. The Authority accepted that the letter may be a genuine letter written at the request of the applicant’s mother. It was in these circumstances that the Authority accepted that the applicant’s mother is a politically active person and may have been subjected to harm in the past. 

31. The Authority referred to injuries to the applicant’s mother’s knees relating to past violence. However, the Authority identified that, for the reasons outlined in paragraph 37 of its decision, it did not accept that the applicant’s mother was interrogated by the CID in August 2016. The Authority did not accept that the CID had any adverse interest in the applicant or the applicant’s mother. The Authority also took into account the applicant’s mother has not been harmed as a result of her ongoing political involvement. 

32. The Authority found the chance of the applicant being perceived as a supporter of the LTTE because of his mother’s political involvement with the ITAK/TNA was remote. The Authority found that the chance of the applicant being harmed because of his mother’s political involvement was remote. The Authority was satisfied that the applicant’s fear of persecution is not well founded.

33. The Authority referred to the applicant’s illegal departure and being a failed Tamil asylum seeker. The Authority identified the process to which the applicant would be exposed on return and found that there was no evidence the applicant would be unable to pay the fine or bail imposed in relation to his illegal departure. The Authority was satisfied the applicant does not have a profile with anti-government activists or Tamil separatists. The Authority found that the applicant does not have links to the LTTE, and did not accept that he would be perceived as having links to the LTTE. 

34. The Authority was satisfied that the applicant would not be detained for a lengthy period of time, or subject to serious harm or significant harm on arriving back in Sri Lanka as a person who departed illegally, and as a person returning as a failed Sri Lankan Tamil asylum seeker. The Authority found that the applicant would undergo routine processing and was satisfied that the treatment of the applicant in relation to being charged, convicted and fined does not amount to serious harm. 

35. The Authority took into account the applicant’s claims cumulatively, and was not satisfied that there was a real chance that the applicant would face serious harm now or in the reasonably foreseeable future in Sri Lanka. The Authority found that the applicant’s fears of persecution were not well-founded.

36. The Authority found that the applicant did not meet the requirements or definition in s 5H(1) of the Act and does not meet the criterion in s 36(2)(a) of the Act.

37. The Authority also considered whether the applicant met the criteria in respect of complementary protection and found that there were not substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, that there was a real risk the applicant would suffer significant harm. 

38. The Authority found the applicant does not meet the criterion in s 36(2)(aa) of the Act and affirmed the decision of the delegate under review. 

    BEFORE THE COURT

39. On 20 March 2017, the Court listed these proceedings.

40. The Court granted leave to the applicant to rely upon the amended application and dispensed with the requirement for filing of the same.

    THE GROUNDS

41. The amended application raised the following four grounds:

    Ground 1

    1.The Immigration Assessment Authority (“the IAA”) in paragraph 11 of its decision dated 23 February 2017 erred in its finding under s 473DD of the Migration Act not to consider a psychological assessment report provided by the applicant to the IAA.

    Ground 2

    2.The applicant’s agent submitted to the IAA that the applicant was not given a fair hearing by the Minister’s delegate and asked the IAA to remit the matter to the Department for re-hearing.  The IAA failed to deal with this request in its decision.  This is a jurisdictional error.

    Ground 3

    3.There was conflicting country information before the IAA concerning the risk of harm to Tamils in Sri Lanka.  The IAA, in paragraphs 26 and 27 of its decision, preferred one set of country information (which referred to the improved situation for Tamils and that “the monitoring and harassment of Tamils in their daily life has generally ceased”) over the other (which stated that human rights abuses continue to occur” and “monitoring and harassment of Tamils continues”).  The IAA did not give reasons for its preference.  In the circumstances, the IAA arbitrarily chose one set of country information over the other.  This is a jurisdictional error.

    Ground 4

    4.The IAA found in paragraph 39 of its decision that it did not accept that the applicant’s mother was interrogated by the CID in August 2016.  The IAA fell into jurisdictional error in making this finding.  First, the IAA stated that “for reasons outlined in paragraph 37, I do not accept that the applicant’s mother was interrogated by the CID in August 2016”.  But the IAA in paragraph 37 did not make a finding, or give reasons in support of a finding, rejecting the August 2016 interrogation claim.  Second, the IAA overlooked evidence in a letter from a Member of Parliament before the IAA, which the IAA accepted as genuine, in support of the August 2016 interrogation claim.

    GROUND 1

1. In relation to Ground 1, Mr Zipser, who appeared on behalf of the applicant, took the Court to paragraph 11 of the Authority’s findings. Mr Zipser contended that the STARTTS psychological report was material. In particular, Mr Zipser took the Court to page 212 of the court book, which contained the report, where there is a reference to the applicant explaining that his family had been persecuted because of his mother’s political activities, that this had a significant effect on the family and that most of the family members had been seriously affected by the violence inflicted on them.

2. It is apparent from the Authority’s decision, as summarised above, that the Authority did accept that the applicant’s mother had been a politically active person and did accept she may have been subjected to harm in the past. The STARTTS report was composed by a psychologist who identified the significant impact on the applicant’s psychological and emotional wellbeing, and the improvement that may be provided with further psychological treatment to manage his symptoms of PTSD, anxiety, depression and prevent the further deterioration of his mental health. 

3. The Court does not accept that the passage in the STARTTS report that has been referred to by Mr Zipser can be said to be material to the applicant’s claims. It was simply reciting history in relation to the applicant’s mother’s political activities, which political activity was accepted by the Authority. 

4. The Court accepts the first respondent’s submission that, even if there had been any error in relation to s 473DD of the Act concerning the STARTTS report, it could not be said to be material as required by MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at 39.

5. The STARTTS report is not one in respect of which it may possibly have affected the decision had it not been excluded. The Court is satisfied that the report could not realistically have given rise to a different outcome even if it had been taken into account by the Authority.

6. Further, the Authority’s reasons must be read as a whole. The paragraph that is the subject of the challenge by Ground 1 immediately follows paragraph 10, which refers to the second limb of s 473DD(ii) of the Act, and immediately preceding the paragraph which referred to, relevantly, the first limb of s 473DD(i) of the Act. 

7. It is apparent from the Authority’s reasons in paragraph 11 that it has expressly taken into account s 473DD(i) of the Act. Reading the reasons as a whole and taking into account the immediately preceding references, there is no proper basis to find that the Authority did not take into account the whole of the provisions of s 473DD(b) of the Act in finding that there are not exceptional circumstances to justify consideration of the STARTTS psychological assessment report dated 9 July 2015. 

8. For these reasons, no jurisdictional error as alleged in Ground 1 is made out. 

   GROUND 2

9. In relation to Ground 2, Mr Zipser took the Court to the submissions advanced on behalf of the applicant to the Authority and, in particular, to page 193 of the court book. There was a reference to an alleged unfair hearing and there was a reference to the delegate identifying that he was racing against time. The submissions also made reference to trying to give documents to the delegate, complaining that the applicant did not have a fair hearing, and alleging apprehended bias by the delegate. The submissions ultimately requested that the matter be remitted to the Department for a rehearing.

10. It is apparent from the Authority’s reasons at paragraph 4, that the Authority expressly identified having considered these submissions. Further, as Mr Zipser properly pointed out, it is apparent in relation to paragraph 29 of the Authority’s reasons that the substance of the submissions were taken into account. In that paragraph, the Authority gave the applicant the benefit of the doubt in relation to him having been a candidate for the ITAK in the 2011 Local Government elections. 

11. In these circumstances, there is no basis to find that the Authority did not have a genuine intellectual engagement with the applicant’s submissions. The Authority was not required to make findings in respect of the alleged procedural deficiency or alleged bias by the delegate.  That is because it is apparent the Authority took into account those submissions in evaluating the applicant’s claims and evidence.

12. Further, the Court accepts the first respondent’s submission that the Authority is not entitled to remit the matter to the delegate for a rehearing as that is not one of the permitted directions within s 473CC(2)(b) of the Act and reg 4.43 of the Migration Regulations 1994 (Cth) (“the Regulations”).

13. Mr Zipser referred to the breadth of the language in s 473CC(2)(b) of the Act as to directions or recommendations. However, it is not a recommendation that the applicant has raised, but rather a direction for a rehearing which is not one of the directions identified in reg 4.43 of the Regulations. It was not necessary for the Authority to expressly address the applicant’s request because it was not material.

14. Accordingly, for this further reason, no jurisdictional error as alleged in Ground 2 is made out.

    GROUND 3

15. In relation to the third Ground, Mr Zipser contended that the Authority had arbitrarily chosen one piece of country information over another. Mr Zipser, referring to  paragraphs 25 and 26 of the Authority’s reasons, identified that monitoring and harassment of Tamils in their daily life has generally ceased, as referred to at the end of paragraph 25, and referred to the proposition that monitoring and harassment of Tamils continues although at a reduced level as stated at the commencement of paragraph 26.

16. The Court does not accept the premise in Mr Zipser’s submission that the Authority arbitrarily chose one piece of country information over the other. The Court accepts the first respondent’s submission that the Authority took into account the country information, as identified in both paragraph 25 and paragraph 26 of its decision. Accordingly, there was no preference of one source of country information over another, nor was there any arbitrary selection of country information.

17. The Court accepts the proposition that the latter statement in paragraph 26 of the Authority’s reasons was made in the context of the resurgence of the LTTE, and that the paragraphs are ones to which regard can be had to both. The paragraphs were not inconsistent and the Authority’s reasons should not be construed as preferring one source of country information over the other.  Further it was a matter for the Authority as to what country information it accepted and in reality this ground invites impermissible merits review.

18. For these reasons, the Court finds that no jurisdictional error as alleged in Ground 3 is made out. 

19. GROUND 4

20. In relation to Ground 4, Mr Zipser contended that the Authority’s reasons at paragraph 39 of its decision for not accepting that the mother was interrogated by the CID in 2016 were legally unreasonable. In that regard, Mr Zipser relied upon the reference by the Authority, accepting that the letter dated 15 September 2016 from a Member of Parliament may be genuine and that the letter made a reference to the August 2016 CID investigation of the applicant’s mother. 

21. Given the clear identification of the content of that matter, it cannot be said that the Authority failed to give proper, genuine and realistic consideration to the letter from the parliamentarian. The reasoning for rejecting that the applicant was interrogated by the CID in August 2016 referred to the provision of information which the Authority found to be self-serving and not genuine evidence in respect of the mother’s interrogation in August 2016 by the CID. That provides an evident and intelligible justification for the adverse finding. 

22. The adverse finding in relation to the mother’s alleged interrogation by the CID in August 2016 being rejected was not legally unreasonable. 

23. No jurisdictional error as alleged in Ground 4 is made out. 

24. Accordingly, the applicant’s amended application is dismissed. 

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       24 September 2021