BFF17 v Minister for Immigration

[2017] FCCA 3037

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFF17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3037

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – the Authority complied with its obligations of procedural fairness – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CB, 473DC, 473DD, 473DE

Applicant: BFF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 846 of 2017

Judgment of: Judge Street

Hearing date: 6 December 2017

Date of Last Submission: 6 December 2017

Delivered at: Sydney

Delivered on: 6 December 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr R White
Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 846 of 2017

BFF17

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 made on 8 March 2017 affirming a decision of 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 arrived in Australia as an unauthorised maritime arrival on 25 April 2013.  The applicant lodged an application for a Safe Haven Enterprise visa on 26 July 2016.

3. The applicant claimed that he was a Tamil and that he left Sri Lanka with his parents as a child to avoid the persecution of Tamils in the north of Sri Lanka, where he was born. The applicant claimed his father encountered discrimination as a Tamil and moved the family to India due to civil war. The applicant claimed that he arrived in India at the age of seven and claimed that his parents, wife and children continue to live there. Neither the applicant nor his parents nor siblings had returned to Sri Lanka since they departed around 1990. The applicant claimed he lived in a refugee camp in India for about 23 years but faced harassment by the Indian Q branch Police. The applicant feared returning to Sri Lanka and claimed that he would face significant harm on return under the Immigrants and Emigrants Act. The applicant claimed he would be questioned by the CID and prosecuted for his illegal departure from Sri Lanka and then to Australia from India.

4. The applicant claimed he would face harm as a young Tamil male who originated from the North and a former stronghold of the Liberation Tigers of Tamil Eelam (LTTE). The applicant also claimed he would face physical violence in prison and had no relative, friend or family to assist him obtain bail if he was detained and would face harm as a failed Tamil asylum seeker. On 23 January 2017, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Act. 

The Authority’s decision

1. By letter dated 27 January 2017, the Authority wrote to the applicant identifying the matter had been referred to the Authority for review.  The Authority’s letter identified there were only limited circumstances in which the Authority could consider new information. The Authority’s letter provided an attached factsheet and practice direction, giving the applicant an opportunity to put on new information and submissions.

2. The Authority in its decision dated 8 March 2017 identified the background to the visa application. The Authority referred to having regard to the material referred under s 473CB of the Act. The Authority made reference to the applicant’s submission made on 2 February 2017 and the country information provided with that decision. The Authority found that the information did not constitute new information and had regard to it. The Authority referred to part of the submission indicating the willingness of the applicant to attend an interview and request to be invited to attend an interview. The Authority was not satisfied that an interview was required in the present case, taking into account the statutory regime. This exercise of discretion by the Authority cannot be said to be unreasonable and cannot be said to lack an evident and intelligible justification. The Authority referred to a further report by DFAT, of 24 February 2017 and found that that was new information that the Authority was entitled to take into account under s 473DE(3)(a) of the Act. 

Refugee convention criteria

1. The Authority summarised the applicant’s claims and summarised the relevant law.  The Authority accepted that the applicant was as claimed a Tamil and Hindu and had lived in India for the past 23 years.  The Authority accepted that the applicant was unable to return to India.  The Authority accepted the applicant’s father was subject to harassment and that this was the basis for taking the family to India. 

2. The Authority noted the applicant had left India because he had spent 23 years as a refugee and wished to change his status, but was not satisfied there was information before it of any incidents or activity having occurred while the applicant lived in India or after his arrival in Australia that would give the applicant an adverse profile with the Sri Lankan authorities. The Authority accepted that the applicant’s absence would be noted but was not satisfied that it would attract the adverse attention of Sri Lankan authorities on the basis of country information concerning repatriation of refugees from Tamil Nadu.

3. The Authority accepted that the applicant had no connection with the LTTE through his parents or relatives and that he departed Sri Lanka at the age of seven, and found he had no adverse political or security profile. The Authority considered the applicant’s father’s experience but did not accept the applicant would be imputed with any LTTE connection because of his Tamil ethnicity, being from the North, or having departed the country illegally in 1990.

4. The Authority found the applicant had no profile that would attract the adverse attention of the authorities. The Authority accepted that the applicant departed Sri Lanka illegally and would return as a failed asylum seeker. The Authority expressly relied on earlier findings that the applicant would not be of any interest to Sri Lankan authorities.  The Authority found on the basis of country information, it was not satisfied the applicant would be at risk of adverse attention from authorities when scrutinised on his arrival in Sri Lanka.

5. The Authority referred to country information, accepted the applicant would be questioned by the authorities on his return and could be charged with an offence under Immigrants and Emigrants Act for departing illegally. The Authority found the applicant may be detained and questioned at the airport for up to 24 hours, fined and depending on the availability of a Magistrate, face a short period of imprisonment. 

6. The Authority considered the applicant’s claim that he had no family or friends to bail him out but noted that a Magistrate could release him on his own surety. The Authority found that the questioning of the applicant at the airport on arrival and the imposition of any surety or fine did not constitute serious harm. The Authority found the application of the Immigrants and Emigrants Act to returnees who had departed illegally amounted to the non-discriminatory application of a law that applied to all Sri Lankans and did not constitute persecution for the purposes of s 5H(1) and s 5J(1) of the Act. 

7. The Authority was not satisfied the applicant faced a real chance of persecution on the basis of being a failed Tamil asylum seeker who had departed Sri Lanka illegally. Having considered the applicant’s claims cumulatively, the Authority was not satisfied the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

Complementary protection assessment

1. The Authority accepted that the applicant might face some initial difficulties due to his prolonged absence but was not satisfied this discrimination amounted to significant harm as defined by s 36(2A) and s 5 of the Act. The Authority relied on its earlier finding that the applicant did not face a real chance of harm due to any links to the LTTE, as a person who had no relatives or as a Tamil failed asylum seeker. The Authority was not satisfied the applicant faced a real chance of significant harm for these reasons.

2. The Authority accepted that the applicant may be questioned and subjected to poor prison conditions during any brief period of detention and required to pay a surety or fine, but did not accept, on the basis of the country information, that this constituted significant harm. The Authority was not satisfied there was an intention to inflict severe pain or suffering or cause extreme humiliation under the Immigrants and Emigrants Act. The Authority found the applicant did not meet the complementary criteria under s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. The grounds in the amended application are as follows:

   The Immigration Assessing Authority has committed a jurisdictional error in my case as it declined to exercise jurisdiction as the factual precedent for its jurisdiction does exist.

   My ground: Jurisdictional error

   Particulars of my grounds:

   I am a Hindu Tamil, born in 1983 in Velikulam Vavuniya in the Northern Province of Sri Lanka. In 1990, at about age 7, I moved with his family to Tamil Nadu where I resided until his departure from India in March 2013. While in India, I completed schooling to Year 6 level at the government school. Since competing school, I worked as a labourer. My parents, his wife and children and siblings continue to reside in the refugee camp in Tamil Nadu and I have no extended family residing in Sri Lanka. Neither I nor any members of my family have been back to Sri Lanka to visit since 1990. Prior to leaving Sri Lanka, my family was not involved in political or pro-LTTE activities. My father experienced harassment and ill-treatment from the army on two occasions while walking down the street. On 10 March 2013 I departed India and travelled to Australia. I cannot return to India as he has been removed from the list of welfare recipients and he fears action by the Q Branch. I fear returning to Sri Lanka as I would be questioned on arrival by the CID and prosecuted for my illegal departure. There is a possibility of ill-treatment during the questioning process and I have no family members, close relatives or friends to vouch for me and bail me if detained. I fear harm from the authorities being Tamil from the Northern Province and imputed LTTE association.

   There is evidence and country information on Sri Lanka before the IAA to substantiate that a Tamil in my similar circumstances is still risk of serious harm at the hands of Sri Lankan authorities in Sri Lanka, especially on my arrival, but the IAA has declined to exercise its jurisdiction on central refugee claims.

   The IAA's decision/reasoning seems to be mere speculation and there is country information before the IAA that I am still at risk of harm on my arrival. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs. 

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

4. Pursuant to orders of the Court made on 28 April 2017, the applicant had an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an amended application, as identified above, and made oral submissions from the bar table. 

The applicant’s submissions from the bar table

1. The applicant maintained that he left Sri Lanka illegally and that he had no family there to assist him obtain bail, and that he would be detained and tortured. It is apparent on the face of the Authority’s reasons that the Authority took into account the absence of family by the applicant in Sri Lanka and made findings adverse to the applicant in relation to his alleged fear of significant harm by reason of his illegal departure, being a failed asylum seeker and in relation to his short detention. The Authority found that the applicant would be able to be released on his own surety. 

2. Those adverse findings by the Authority were open on the material before the Authority and cannot be said lacking an evident and intelligible justification. The applicant’s submissions, in substance invited this Court to engage in impermissible merits review.  This Court does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error. 

Consideration of the grounds in the amended application

1. The Authority’s reasons were not mere speculation, but were findings open to the Authority for the reasons given by the Authority. It was up to the Authority to determine what country information to accept. The applicant’s disagreement with the adverse finding does not identify any jurisdictional error. 

2. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Authority complied with its obligations of procedural fairness by giving the applicant an opportunity to put on new information and submissions and by taking the same into account subject to the statutory requirements under s 473DC and s 473DD of the Act. 

3. On the face of material before the Court, the Authority comprehensively considered the applicant’s claims and made dispositive findings that were open to the Authority.  In substance, the grounds in the application invite the Court to engage in impermissible merits review. The Court does not have power to do so.  Nothing in the grounds in the amended application makes out any jurisdictional error. 

4. The written submissions in substance, repeat the applicant’s disagreement with the adverse findings. The applicant also makes reference to his concern in relation to being a failed asylum seeker who will be detained which was the subject of consideration and findings that were open to the Authority. In substance, the applicant’s submissions invite the Court to engage in impermissible merits review. Nothing in the written submissions identifies any jurisdictional error by the Authority. 

5. As the amended application fails to make out any jurisdictional error, the amended application is dismissed. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 December 2017