Ben17 v Minister for Immigration

[2019] FCCA 421

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEN17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 421

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority complied with its statutory obligations – whether the Authority identified the relevant law – whether the Authority brought an independent and impartial mind to the determination of the matter on its merits – whether the Authority’s adverse findings were open to it – invitation to this Court to engage in merits review – no jurisdictional error made out – application dismissed.  

Legislation:

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

Applicant: BEN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 161 of 2017

Judgment of: Judge Street

Hearing date: 22 February 2019

Date of Last Submission: 22 February 2019

Delivered at: Perth

Delivered on: 22 February 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Jackson
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 22 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 161 of 2017

BEN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 Part 7AA of the Act made on 22 February 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven class visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 1 September 2012 as an unauthorised maritime arrival. The applicant was found to be a Tamil Hindu from the Kilinochchi District in the Northern Province of Sri Lanka. The applicant claimed to fear harm from the Sri Lankan army and the Criminal Investigation Department (“CID”) due to his Tamil ethnicity and imputed association with Liberation Tigers of Tamil Eelam (“LTTE”), volunteering in local community groups, supporting the Tamil National Alliance (“TNA”), and his illegal departure.

3. On 5 January 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 11 January 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and Practice Direction giving the applicant an opportunity to provide new information and submissions. No submissions were provided.

5. The Authority in its reasons identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority also took into account updated Department of Foreign Affairs (“DFAT”) country information dated 24 January 2017.

6. The Authority summarised the applicant’s claims and evidence. The Authority accepted the applicant was detained and considered the short periods of detention and release of the applicant in the absence of arrest and formal charging, indicating that the CID did not consider the applicant was involved with the LTTE.

7. The Authority, having regard to the material before it, including country information, found the applicant’s claim the Sri Lankan army approached him in 2010 and sought to be present at any political meetings of the local community groups VDB or RDS to be credible. The Authority did not accept the applicant’s claim that he was a prominent speaker at political meetings. The Authority did not accept on the information before the Authority that the applicant occupied a position of influence. The Authority found the level and nature of assistance provided by the applicant to be characteristic of being a low-level supporter, with ties to the local community and through local groups that may have assisted in the particular person’s campaign.

8. The Authority did not accept the applicant was ever subject to degree of monitoring and harassment by the CID as claimed in 2011 to 2012. The Authority found it implausible that the Sri Lankan army would not apprehend the applicant when they had the chance if he was being actively pursued and, on this basis, did not accept that the authorities were searching for the applicant or had an ongoing interest in his activities.

9. The Authority was not satisfied the CID officers were searching for the applicant or had an ongoing interest in his activities, including after his departure from Sri Lanka. The Authority found the applicant does not have a profile that would prompt the attention of the authorities on return to Sri Lanka that would give rise to a chance of serious harm. The Authority found that there is no information to suggest that since 2012 the applicant has continued to be politically engaged or indicated a desire to engage in any political activities should he return to Sri Lanka.

10. The Authority was not satisfied the applicant faces a real chance of serious harm on the basis of his Tamil ethnicity and/or because he originates from the Kilinochchi District in the Northern Province.

11. The Authority was not satisfied on the evidence that the detention arrangements for the purpose of being charged under the Immigrants and Emigrants Act 1949 (Sri Lanka) and the penalties that may be imposed upon a plea of guilty are applied in a discriminatory manner. The Authority was not satisfied a short period of detention would amount to serious harm for the applicant. The Authority found the detention for the purpose of being charged with offences under the Immigrants and Emigrants Act 1949 (Sri Lanka) and the imposition of a fine following a plea would not give rise to a real chance of serious harm.

12. The Authority found the applicant would not face a real chance of serious harm on the basis of being a returned asylum seeker and/or illegal departee. The Authority considered the applicant’s claims cumulatively and found they did not give rise to a real chance of harm.

13. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

14. The Authority found there were not substantial grounds for believing that, as a necessary foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 20 March 2017. On 25 May 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

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

3. From the bar table, the applicant indicated he provided the relevant documents to the Tribunal and maintained that what he had said was true and that the decision was unfair. The applicant’s submissions from the bar table, in substance, reflect disagreement with the adverse finding by the Tribunal and do not identify any relevant error. The submissions in substance invited this Court to engage in merits review. This Court has no power to review the merits. The adverse findings by the Authority were open for the reasons given by the Authority as summarised above. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. Jurisdictional error.

   2. Bias based on conscious or unconscious prejudice by ignoring relevant material.

   3. Identifying a wrong issue on a wrong question.

Ground 1

1. In relation to ground 1, the bare assertion of jurisdictional error is not capable of making out relevant error in its unparticularised form. On the face of the Authority’s reasons, the Authority complied with its statutory obligations in the conduct of the review. No jurisdictional error as asserted in ground 1 is made out.

Ground 2

1. In relation to ground 2, bias must be clearly alleged and properly proved. The generalised assertion of bias unparticularised is not capable of making out any relevant error. There is no relevant material that has been identified that the Authority failed to take into account. The adverse findings by the Authority are not conduct by reason of which a fair-minded layperson might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits.

2. On the face of the material before the Court, the Authority conducted the review with an open mind reasonably capable of persuasion as to the merits. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, no wrong issue or wrong question has been identified and this ground, on its face, fails to make out any jurisdictional error. On the face of the Authority’s reasons, the Authority correctly identified the relevant law and made dispositive findings in respect of the applicant’s claims that were open to the Authority for the reasons given by the Authority. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 March 2019