BFQ19 v Minister for Immigration

[2019] FCCA 3599

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFQ19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3599

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 65, 414, 415, 473CC, 473DD, 499

Cases cited:

AYY17 v Minister for Immigration [2018] FCAFC 89

BDE17 v Minister for Immigration [2019] FCA 338

BDE17 v Minister for Immigration & Anor [2018] FCCA 2476

DCP16 v Minister for Immigration [2019] FCAFC 91

Applicant: BFQ19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 706 of 2019

Judgment of: Judge Driver

Hearing date: 10 December 2019

Delivered at: Sydney

Delivered on: 10 December 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr S Valliappan of DLA Piper

INTERLOCUTORY ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 706 of 2019

BFQ19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 1 March 2019.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts concerning the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed on 3 December 2019. 

3. The applicant is a citizen of Sri Lanka who arrived in Australia at Cocos Islands[1] on 3 October 2012 by boat as an unauthorised maritime arrival.

   [1] Court Book (CB) 41

4. On 14 March 2017, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV) on the basis of the following claims[2] which were summarised by the Authority at [4] of its reasons:

   a)the applicant is from northern Sri Lanka and a Sunni Muslim.  In 1992, his family were forced by the LTTE[3] on the basis of their religion to move to Putlam, a government controlled area.  He was a tailor and businessman and in September 2009, he secured a permit allowing him to supply fish to a detention camp for civilians who were in LTTE controlled areas.  In the course of his business, he became aware that some detainees disappeared from the camp and that LTTE cadres were hiding in the camp pretending to be civilians, and bribing CID[4] officers to escape;

   b)on 25 December 2010, he, his brother and nephew were stopped by army officers at the checkpoint and taken inside the camp.  The applicant was beaten, blindfolded and taken to a torture chamber.  He was severely assaulted, injured his shoulder, and lost consciousness and later woke up in an army hospital.  About 10 days after he returned home, he was dragged one night out of bed and bundled into a van.  He was told that he was going to die but was let go by one officer who felt sympathetic because he had children;

   c)he then went to his sister’s place and hid there for several weeks before staying with a friend.  The following night, they were approached by several persons in civilian clothing.  The applicant managed to escape but his friend was killed.  He went into hiding in mosques whilst working on construction sites; however, people would make enquiries about anyone who worked there who was from Putlam.  As a consequence, he made arrangements to leave Sri Lanka.  The authorities continued to look for him and spoke to his wife causing her to start moving between places; and

   d)in early 2018, prior to the SHEV interview, the authorities made enquiries about him to the auto driver who drove his children to school.  Since then his wife has stopped sending his children to school.  The authorities also made enquiries with his father and are aware that he is overseas.  The applicant fears harm on the basis that he was a witness to war crimes and to senior CID officers accepting bribes and releasing LTTE members.  Further, he is suspected by the army and CID of aiding and abetting a senior LTTE member, “K”, to escape a detention camp.

   [2] Reasons for claiming protection (CB 52-54), statutory declaration (CB 59-63), submissions to the delegate (CB 176-181), further submissions to the delegate (CB 271-280)

   [3] Liberation Tigers of Tamil Eelam

   [4] Criminal Investigation Department

5. On 29 October 2018, the delegate made a decision to refuse to grant the applicant the visa and so the matter was referred to the Authority for review.[5]

   [5] CB 753-775

6. On 1 March 2019, the Authority affirmed the decision under review.[6]

   [6] CB 809-823

Authority’s decision

1. The Authority noted the applicant’s evidence was consistent in relation to his business and that he had also provided documentation.  Accordingly, it accepted he supplied fish to detainees in September 2009 and had employed K not knowing his LTTE background.[7]  However, it was not persuaded by his explanation regarding why the officers did not kill him the night he was abducted noting that his wife witnessed this and saw one officer was wearing army trousers.[8]  Further, it did not find convincing his evidence that the authorities were still looking for him in circumstances where it did not accept he would have been able to avoid being caught if the authorities were looking for him at his and his sister’s home.[9]

   [7] [6]

   [8] [12]

   [9] [14]

2. The Authority had regard to a news article dated 4 January 2012 which reported the death of a person with the surname of “N”, the same as the applicant’s friend.  However, it noted the article did not state that he was with anyone and recorded the event to have occurred after New Year’s Day contrary to the applicant’s evidence. Given the significance of New Year’s Day, it considered the discrepancy to be significant and did not accept the claim.[10]  In relation to the incident with his brother and nephew, the Authority did not consider it plausible that either were not questioned at all if the applicant was questioned about K’s whereabouts given they all worked together.  It also identified the major discrepancies between the applicant’s family’s evidence and afforded their letters little weight.[11]

   [10] [18]

   [11] [20]-[21]

3. The Authority accepted the applicant, his brother and nephew were questioned in December 2010 because of the disappearance of K who had been assisting them.  Further, it accepted that when he was transferred to the camp the applicant was mistreated.  However, in light of its earlier findings, it was not satisfied the applicant sustained the shoulder injury in the manner claimed or that he was released from an army hospital.  It accepted that he was detained for two to three days but he was cleared of any involvement in the disappearance of K.  The Authority did not accept that the applicant was abducted in January 2011, that he was with N or in any way related to him.  Further, it was not satisfied he went into hiding after this time, that he was of any interest to the authorities after his release in December 2010, that the authorities made enquiries about him at any stage after his release or that his wife and children have been in hiding and forced to stop going to school.[12]

   [12] [23]

4. The Authority considered the applicant’s evidence regarding the war crimes he witnessed to be vague and unconvincing and did not accept that he had personally witnessed the corruption alleged or K’s abduction.[13]  The Authority noted he did not claim to fear harm on the basis of his religion in his SHEV application and nor did he suggest the December 2010 incident had any connection in that way.[14]  Further, the Authority noted the applicant provided contradictory evidence regarding why his wife and children moved around.  In those circumstances, it was not satisfied he or his family were harmed in the past for reason of their religion.[15]

   [13] [26]

   [14] [27]

   [15] [28]

5. On the basis of country information before it, and its earlier findings, the Authority was not satisfied there would be a real chance that the applicant would on return to Sri Lanka, now or in the reasonably foreseeable future, come to the adverse interest of the authorities or anyone else, because he speaks Tamil, his past experiences including living in the north, having unwittingly employed K and having been arrested and mistreated on suspicion of helping K escape.[16]

   [16] [42]

6. The Authority then went onto consider whether the applicant would be at risk of harm on the basis of his return as a failed asylum seeker who departed Sri Lanka illegally.  It considered there to be no credible evidence to support that the applicant faced a real chance of being subject to monitoring or coming to the adverse attention of the authorities.[17]  Similarly, it considered the evidence before it did not suggest the treatment the applicant may face, including possible stigma and any practical challenge, would amount to serious harm.[18]

   [17] [43]

   [18] [44]

7. Given its finding that the authorities had not expressed interest in the applicant since December 2010, the Authority was satisfied it was very unlikely he would be subject to anything more than administrative screening upon his return.[19]  In relation to the illegal departure, the Authority was not satisfied he would be subject to a custodial sentence as he was merely a passenger and further was not satisfied there was a real chance he would not be able to secure bail.  Finally, it noted that country information did not support that the Immigrants and Emigrants Act was discriminatory or enforced in a discriminatory manner.[20]  Similarly, the Authority did not accept any practical challenges the applicant would experience as a result of returning as a failed asylum seeker or any treatment he would be subject to for his illegal departure would amount to significant harm.[21]

   [19] [45]

   [20] [47]

   [21] [52]-[54]

8. Accordingly, the Authority found that the applicant did not satisfy either s.36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Migration Act) and affirmed the decision of the delegate to refuse to grant him the visa.[22]

   [22] [49], [55]

The current proceedings

1. These proceedings began with a show cause application filed on 25 March 2019.  There are four grounds in it with particulars: 

   1.The IAA's decision is not supported by any evidence and therefore, it is irrational and illogical.

   Particulars

   The IAA noted in its decision in para 26 that the applicant is not a witness of war crimes. It is respectfully submitted that the applicant in his statement and submission noted that he realised the he was taken to a torture chamber inside the camp and further stated that there were two other person who were lying on the floor groaning in pain and two soldiers escorted him into the torture chamber and went back. It clearly shows that the applicant has submitted that he has seen torture victims by his own eyes while in detention. It is respectfully submitted that Geneva Convention provides the meaning of War crimes and states that torture or inhuman treatment and wilfully causing great suffering or serious injury to body or health would amount to War crimes. Since the applicant has seen torture victims that means that he has seen victims of torture or inhuman treatment while in detention which means that he has seen war crimes and the perpetrators of the war crimes. The IAA failed to consider the meaning of War Crimes under the international law and formed the view that the applicant is not a witness of war crimes. Therefore, it is respectfully submitted that the IAA conclusion and decision is not supported any evidence and legal principles and therefore, it is infected by legal error.

   2.The IAA decision is infected with a legal error because its decision is unreasonable.

   Particulars

   The IAA noted in para 47 of the decision:

   As noted above, detainees are not subject to mistreatment during processing at the airport. According to DFAT, a guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. On the information before me, while a fine from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670) may be imposed (which can be paid by instalment), I am not satisfied there is a real chance that the applicant will be subject to a custodial sentence for departing Sri Lanka illegally, merely as a passenger. If the applicant pleads guilty, he would then free to go. Should the applicant plead not guilty, I am also not satisfied there is a real chance that the applicant would not be able to secure bail on personal surety or guarantee by a family member (if such matters arise), as bail is usually granted.

   It is submitted that the IAA made assumptions in its decision and failed to provide any evidence in support of that.

   The IAA noted that the if the applicant plead guilty that he would be fined which can be paid by instalment. There is no evidence or assessment before or by the IAA to conclude that the applicant has the means to pay fine even by instalment.

   In addition, the IAA noted that if the applicant does not plead guilty then he would be granted a bail on personal surety or guarantee by a family member. The IAA failed to mention what is the definition of family member under the Sri Lankan law and who can be a family member in respect of the Immigration and Emigration Act to provide surety or guarantee. The Tribunal made assumptions in relation to the meaning of family member and concluded that a family member would be able to provide guarantee to bail him out. It is respectfully submitted that assumption is unreasonable and not legal.

   3.The IAA's decision in infected with a legal error for its failure to mention and consider its Direction 56 issued under section 499 of the Migration Act 1958 which the IAA is legally obliged to consider.

   4.The IAA failed to consider and assess relevant consideration of the applicant's claims.

   Particulars

   a.The applicant submitted that he is a wealthy businessman and the IAA failed to consider applicant's claim when assessing his application for a protection visa.

   b.The IAA failed to consider applicant's particular situation as a Tamil Muslim from Jaffna

   (applicant’s emphasis retained and errors in original)

2. The applicant continues to rely upon that application.  The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 19 June 2019 and a copy of Ministerial Direction No. 56, which became exhibit R1. 

3. Only the Minister provided written submissions in advance of today’s hearing.  I invited oral submissions from the applicant this afternoon.  His submissions addressed the merits of the Authority decision, in particular having regard to political developments in Sri Lanka since the Authority decision. 

4. The applicant mentioned, in particular, a submission made to the Authority following the referral of the matter to the Authority.  In that submission, the applicant places stress on the threat he believes is posed by former Defence Secretary Rajapaksa and the applicant’s fear of Mr Rajapaksa returning to power.[23]  The Authority dealt with that submission at [3] of its reasons.[24]  The Authority addresses the detail of the applicant’s brief submission and notes that to some extent the applicant was merely reiterating his previously expressed fears.  However, the Authority identified some new information, namely, assertions about the influence of Mr Rajapaksa and his brother, and the Authority found there were no exceptional circumstances to justify considering that new information.

   [23] See CB 806

   [24] CB 810

5. The Authority decision was made, as I have noted above, on 1 March 2019.  The recent election of former Defence Secretary Gotabaya Rajapaksa as President, and the appointment of his brother, former President Mahinda Rajapaksa, as Prime Minister are obviously significant developments which might have been foreseeable at the time of the Authority decision.  To the extent that decisions of the Authority are based upon the absence of the Rajapaksa brothers from government, and the existence of the former Sirisena government, questions arise whether the relevant decision is a safe one.  In the absence of a jurisdictional error by the Authority, however, that question is a question for the Minister and his Department rather than this Court. 

6. The applicant has not in his application alleged any error by the Authority in considering new information. The Authority’s brief discussion of the equally brief submission made by the applicant was, in my view, adequate to discharge the Authority’s obligations for the purposes of s.473DD of the Migration Act. The applicant’s other submissions go directly to his current fears of returning to Sri Lanka, which are beyond the scope of these proceedings.

Ground 1

1. Ground 1 complains that the Authority’s finding at [26] of its reasons that the applicant was not a witness of war crimes in relation to his claim of being taken to a torture chamber was irrational and illogical and that it had failed to consider the meaning of war crimes under international law.

2. In this ground of review, the applicant first asserts that the Authority decision is not supported by evidence and is therefore irrational or illogical.  That contention cannot be sustained, for the reasons advanced by the Minister, which I agree with.  It is true that the Authority did not expressly deal with the applicant’s claims of having seen a torture chamber in the camp to which he was taken.  However, the Authority’s finding that he was released from the camp because the authorities had no further interest in the applicant would, in my view, take into account whatever the applicant might have seen while he was in the camp. 

3. The applicant’s claims regarding being taken to a torture chamber and witnessing others lying on the floor groaning in pain is found at [34]-[36][25] of his statutory declaration.  The applicant does not expressly refer to this as having witnessed a war crime.  The Authority noted at [26] of its reasons that when questioned at his SHEV interview about the war crimes he witnessed, the applicant gave evidence regarding K’s abduction and the corruption of CID officers.  Further, in his further submissions to the delegate, the applicant at [1.1][26] again refers to the witnessing of war crimes in terms of CID officers accepted bribes and the escape of K.

   [25] CB 60

   [26] CB 271

4. Accordingly, the applicant’s claim as put before the Authority is not accurately reflected in the particulars to the ground.  The Authority was only required to consider claims which were the subject of substantial, clearly articulated argument, relying on established facts; or which clearly emerged from the materials also on the basis of established facts.[27]  The Authority found the applicant’s overall evidence regarding corrupt CID officers to be vague and not convincing. The Minister submits that [26] shows that the Authority considered the applicant’s claims regarding witnessing war crimes as presented before it.

   [27] See AYY17 v Minister for Immigration [2018] FCAFC 89 at [17]-[21]

1. In light of its factual findings, the Authority was not required to consider the meaning of “war crimes” by reference to international law and conventions as is asserted by the applicant in the particulars to Ground 1.  The Authority did not accept that the applicant was a witness of the corruption he alleged or that he was of further interest regarding K’s escape after his initial questioning and mistreatment.  Accordingly, it did not accept the factual basis of the claim that he would be at risk of harm on the basis of witnessing war crimes and so in those circumstances the ground cannot succeed.

Ground 2

1. Ground 2 deals with the applicant’s status as a returnee.  The Minister’s submissions deal with that issue comprehensively.  I agree with those submissions.

2. The applicant in Ground 2 contends that the Authority acted unreasonably by making an assumption without evidence, namely, when it found that the applicant had the means to pay a fine if he were to plead guilty of departing Sri Lanka illegally or that he would be granted bail if he plead not guilty on the basis of a personal surety or guarantee by a family member.

3. The ground as put forward by the applicant and the reasons of the Authority are similar to those considered by the Full Federal Court in DCP16 v Minister for Immigration.[28]  For the reasons that follow, the ground cannot succeed.

   [28] [2019] FCAFC 91

4. The Authority found that if the applicant pleaded guilty he would be fined and released.  It then set out the usual quantum of such a fine and had noted that it could be paid by instalments.[29]  In DCP16, the Full Federal Court found that similar findings showed that the Authority had “clearly and cogently addressed the appellant’s financial capacity to pay a fine”.[30]  In relation to the Authority’s findings whereby the applicant may plead not guilty, contrary to the applicant’s submission, the Authority did not make any assumption that a family member would act as guarantor.  The country information was that if such matters arose, a family member could provide a guarantee to secure bail.  The question of whether a family member would act as guarantor was not critical to the Authority’s decision.[31]

   [29] [47]

   [30] See [90]-[96]

   [31] See DCP16 at [97]

5. The Full Federal Court addressed the question of the guarantee further at [98] of its reasons:

   On the question of the guarantee, the Authority was dealing with a triply contingent hypothetical. First, the appellant had to plead not guilty. If he pleaded guilty, he would be fined, with the fine able to be paid by instalments; no guarantee question would arise. Second, if he pleaded not guilty, he could be released on his own personal recognizance. In that eventuality, no guarantee would be required. Third, the guarantee question would only arise if he pleaded not guilty and his own personal recognizance was not sufficient. Now in that eventuality, and given that no immediate payment of money would be required from a guarantor, it might be expected that a family member may act as guarantor to secure the appellant’s release. But all of this is in the realm of a hypothetical which the Authority did not need to speculate about or discuss in detail.

6. In those circumstances, the applicant’s argument that the Authority failed to consider the meaning of who could be a family member for the purposes of providing a guarantee falls away.

Ground 3

1. Likewise, I agree with the Minister’s submissions concerning Ministerial Direction No. 56, which was put into evidence. 

2. By this ground the applicant alleges that the Authority erred in failing to consider Ministerial Direction No. 56 issued under s.499 of the Migration Act.

3. I accept that Direction No. 56 is addressed to a person or body performing functions or exercising powers under ss.65, 414 or 415 of the Migration Act. However, the Authority is not so bound in circumstances where its decision-making power arises under s.473CC and not s.65. In those circumstances, there was no legal obligation on the Authority to have regard to, or to apply the provisions of the Department’s Procedures Advice Manual 3 which is a subject of the Direction.[32]  Further, in relation to the May 2018 DFAT[33] report, which was before the delegate, the Authority’s reasons clearly show that it was extensively considered.

   [32] See BDE17 v Minister for Immigration & Anor [2018] FCCA 2476 per Judge Smith at [37]-[38] (upheld on appeal, see BDE17 v Minister for Immigration [2019] FCA 338 per Perram J at [25])

   [33] Department of Foreign Affairs and Trade

Ground 4

1. The final ground, Ground 4, also fails for the reasons advanced by the Minister, which I agree with.

2. The applicant complains that the Authority failed to consider whether he would be at risk of harm on the basis of being a wealthy businessman and as a Tamil Muslim from Jaffna.

3. The applicant did not claim to fear harm on the basis of being a wealthy businessman but rather he claimed that he had a business and was able to go inside Menikfarm camp to sell fish and vegetables and in the process of this, he unintentionally became involved with K, a high ranking LTTE member.  The Authority dealt with that claim.  It accepted that he had a business in Menikfarm and that he was detained and questioned over his dealings with K.  However, it found that upon his release, he was no longer of adverse interest to the authorities for that reason.  Further, at [36], it found that the country information before it did not support that as a Muslim businessman he would face a real chance of serious harm.

4. Similarly, the Authority also considered whether the applicant would be at risk of harm for reason of his religion, ethnicity and previously living in the North.  In relation to his religion, the Authority at [34]-[36] found that overall the weight of country information suggested that the chance or risk of harm faced by Muslims in Sri Lanka was remote.  Further, it did not accept that the applicant or his family had ever faced harm in the past on the basis of their Muslim religion.[34]

   [34] See [27]-[28]

5. The Authority accepted the applicant may be perceived as a Tamil from Northern Sri Lanka.[35]  However, on the basis of its findings regarding the applicant’s profile and the country information considered at [38]-[41] of its reasons, the Authority was not satisfied that if the applicant were to return to Sri Lanka now or in the reasonable foreseeable future, there would be real chance he would come to the adverse interest of the authorities or anyone else because he speaks Tamil or his past presence in Northern Sri Lanka.

   [35] [37]

6. In light of how the claims were articulated before the Authority and its reasons in considering those claims, the ground cannot be made out.

Conclusion

1. The applicant presents as a sympathetic figure.  His fears of returning to Sri Lanka may well be genuine.  The political developments in Sri Lanka recently have certainly exacerbated the applicant’s fears.  These are matters to which the Minister could give further consideration if he were so minded. 

2. I find, however, that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

3. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant indicated a wish to pay by instalments, but did not oppose a costs order in principle. 

4. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:     11 December 2019