BGH17 v Minister for Immigration - [2019] FCCA 1720

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGH17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1720

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority’s findings were open to it – whether Immigration Assessment Authority considered all claims made by the applicant – whether Immigration Assessment Authority ignored relevant material – whether Immigration Assessment Authority relied on irrelevant material – whether Immigration Assessment Authority’s typographical error was a jurisdictional error – no jurisdictional error – application dismissed.

Cases cited:

Applicant:

BGH17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 898 of 2017

Judgment of:

Judge Emmett

Hearing date:

18 June 2019

Date of Last Submission:

18 June 2019

Delivered at:

Sydney

Delivered on:

18 June 2019

REPRESENTATION

Applicant:

Appeared in person with the assistance of an interpreter

Solicitor for the Respondents:

Mr Julian Pinder
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 898 of 2017

BGH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By application filed on 27 March 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority dated 27 February 2017 (“the Authority”). That decision affirmed the decision of a delegate of the first respondent (“the Delegate”) made on 12 December 2016 refusing the application a Safe Haven Enterprise Visa.
The applicant is a citizen of Sri Lanka and of Tamil ethnicity who claims to hear harm from the Tamil Makkal Viduthalai Pulikal (“TMVP”) in Sri Lanka.
The factual background of the matter, the applicant’s claims and the Authority’s decision are accurately summarised in the written submissions of the first respondent, as follows:
“B FACTUAL BACKGROUND
5. The applicant is a citizen of Sri Lanka, who arrived in Australia on 21 October 2012 and is an unauthorised maritime arrival.
6. The Minister exercised his discretion under subsection 46A(2) of the Act, allowing the applicant to make a valid application for a specified visa: CB19–24.
7. On 15 July 2016 the applicant applied for a SHEV: CB31–80.
8. On 12 December 2016, a delegate of the Minister (the delegate) refused to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1720
Decision Date: 18 June 2019

CaseChat Overview and Summary

The applicant, a citizen of Sri Lanka and an unauthorised maritime arrival, sought judicial review of a decision by the Immigration Assessment Authority (IAA) affirming the refusal of a Safe Haven Enterprise Visa (SHEV). The Minister had exercised discretion to allow the applicant to make a valid visa application. The applicant claimed to fear harm due to his Tamil ethnicity, support for the Tamil National Alliance, and his status as a failed asylum seeker who had departed Sri Lanka illegally.

The central legal issue before the court was whether the IAA erred in law in affirming the delegate's decision to refuse the SHEV. Specifically, the court was required to determine if the IAA had properly considered the applicant's claims of persecution and whether its findings regarding the risk of harm were supported by the evidence and the relevant legislative criteria, including the definitions of 'refugee' and 'complementary protection'.

Emmett J reasoned that the IAA had accepted much of the applicant's account of past harassment and threats, including arrests and threats from paramilitary groups and the TMVP. However, the IAA had concluded that, in light of updated country information, the applicant would not face a real chance of serious harm or a real risk of significant harm on account of his ethnicity, his political affiliations, or his illegal departure and status as a failed asylum seeker. The IAA applied the relevant legislative provisions, including subsections 5H(1) and the complementary protection criterion, and found that the applicant did not meet the requirements for either. The court found no error of law in the IAA's assessment of the evidence or its application of the law.

The application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The factual background of the matter, the applicant’s claims and the Authority’s decision are accurately summarised in the written submissions of the first respondent, as follows:“B FACTUAL BACKGROUND5. The applicant is a citizen of Sri Lanka, who arrived in Australia on 21 October 2012 and is an unauthorised maritime arrival.6. The Minister exercised his discretion under subsection 46A(2) of the Act, allowing the applicant to make a valid application for a specified visa: CB19–24.7. On 15 July 2016 the applicant applied for a SHEV: CB31–80.8. On 12 December 2016, a delegate of the Minister (the delegate) refused to grant the applicant a SHEV: CB122–138; esp. CB126–138.9. The delegate's decision was a fast track reviewable decision and was referred by the Minister to the IAA for review on 15 December 2016: CB140–141.10. The IAA had regard to the review material provided by the Secretary under section 473CB of the Act (CB161 at [3]). The IAA also exercised its discretion to get updated country information that it considered relevant to its decision and found that there were exceptional circumstances for doing so (CB161 at [4]): subsection 473DC(1) and paragraph 473DD(a) of the Act.11. On 27 February 2017, the IAA affirmed the decision under review: CB157–173; esp. CB 160–173.C APPLICANT'S CLAIMS12. The applicant claimed to fear harm on account of his Tamil ethnicity, his support of the Tamil National Alliance (TNA), and as a failed asylum seeker who departed Sri Lanka illegally. In support of those claims, the applicant recounted the following events:(a) in 2001, he moved towns to study and was subject to regular checks, questioning, harassment and was arrested on two occasions;(b) from 2002, he worked for a government agency issuing food coupons and was harassed by paramilitary groups;(c) as a Tamil, he was regularly harassed so he went to study in Singapore from 2006–2009;(d) in 2010, he began working as a reporter for the TNA and, in February 2012, four armed members of the Tamil Makkal Viduthalai Pulikal (TMVP) came to his home and threatened him; and (e) in July and August 2012, he was threatened by TMVP members in two phone calls.D THE IAA DECISION13. The IAA accepted much of the applicant's account but found that his claims did not give rise to a real chance of serious harm or a real risk of significant harm. In particular, the IAA accepted: that the applicant had difficulties living near a conflict zone during the civil war; that he was subject to regular checks, questioning, harassment and was arrested on two occasions while studying; that he was harassed by paramilitary groups while working for a government agency issuing food coupons; and that he was harassed as a Tamil (CB163 at [9]). 14. However, in light of country information, which demonstrated that circumstances in Sri Lanka had changed, the IAA did not accept that the applicant would face harm on account of being Tamil (CB163 at [10]).15. The IAA accepted that the applicant worked as a reporter for the TNA and that he was harassed by members of the TMVP as a result. However, in light of country information which demonstrated the TMVP was no longer in power nor had the same influence it had in the past, the IAA did not accept the applicant would face harm for this reason (CB163 at [11]). 16. In relation to the applicant's illegal departure, the IAA found that any experiences or penalties on return would not amount to serious harm and that the applicant would face a ‘law of general application’ (CB165–166 at [19]–[21]). The IAA also found that the applicant would not face harm as a failed asylum seeker (CB166 at [22]).17. For those reasons, the IAA rejected the applicant's claims and found that he did not meet the requirements of the definition of 'refugee' in subsection 5H(1) of the Act, and thus did not meet the refugee criterion (CB166 at [23]–[24]). For the same reasons, the IAA found that the applicant did not satisfy the complementary protection criterion (CB167 at [27]). In this context, the IAA also made specific findings to the effect that the applicant would not face significant harm on account his illegal departure (CB167 at [28]–[29]) or as a failed asylum seeker (CB167 at [30]).”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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