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:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875
S14/2002 v Refugee Review Tribunal [2004] FCAFC 171

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

1. 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.

2. 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.

3. 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 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 CLAIMS

   12. 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 DECISION

   13. 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]).”

The proceeding before this Court

1. The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter.

2. The applicant confirmed that he attended a directions hearing before a registrar of this Court on 13 July 2017. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.

3. At the commencement of today’s hearing, the applicant confirmed that he has not filed any Amended Application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

4. The applicant confirmed that he relied on the grounds of his initiating application filed on 27 March 2017, as follows:

   “1. The Immigration Assessment Authority has made an erroneous finding that the Applicant does not face a real chance of harm on the basis of being a minority Tamil   and has disregarded the Applicant's individual circumstances of harassment and threats   by the Sri Lankan authorities. The decision maker has therefore made a jurisdictional error.

   2. The Immigration Assessment Authority has used excessive authority in disregarding the      harm the Applicant would be subject to by the paramilitary groups as a reporter of the TNA if he returned back to Sri Lanka and has therefore made a jurisdictional error.

   3. The Immigration Assessment Authority has disregarded the strong possibility that the Applicant will face indefinite detention if he returns back to Sri Lanka as he was a person of interest to the paramilitary group and Sri Lankan authorities and the decision     maker has therefore made a jurisdictional error.

   4. The Immigration Assessment Authority has ignored relevant material that the Applicant would be perceived incorrectly by the Sri Lanka authorities as an advocate for anti-     government views as a reporter for the TNA and has a real and genuine fear that he will      be harmed if he returns back to Sri Lanka. The decision maker has thus made a jurisdictional error.

   5. The Immigration Assessment Authority has relied on irrelevant material and not taken      into consideration the Applicant's main claim that if he returns to Sri Lanka, he faces a      real chance of serious harm by the Sri Lanka authorities and the paramilitary group due      to his status as a minority Tamil and his involvement with the TNA, thus the decision      maker has made a jurisdictional error.”

5. The applicant was unrepresented before this Court, although he had the assistance of an interpreter.

6. Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

7. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Authority, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Authority was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Authority, unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake.

8. I explained to the applicant that the first respondent in their submissions asserted that the grounds of his application appeared to be no more than a disagreement with the findings and conclusions of the Authority. The applicant agreed with that proposition. 

9. The applicant had nothing further to say in support of any of the grounds of his application.

Ground 1

1. Ground 1 asserts that the Authority made an erroneous finding when it found that the applicant did not face a real chance of harm on the basis of being a minority Tamil, and disregarded the applicant's individual circumstances of harassment and threats by the authorities. 

2. A fair reading of the Authority’s decision record makes clear that the Authority considered in some detail the individual circumstances of the applicant and his claims of harassment and threats by the Sri Lankan authorities. In particular, the Authority accepted that during the civil war the applicant experienced difficulties living near the conflict zone and that he was subject to regular identity checking and was arrested and questioned on two occasions. The Authority accepted that because of that harassment, the applicant ceased his studies after completing only the first year. The Authority accepted that while working for the government, the applicant was harassed by paramilitary groups who demanded that he divert food coupons to people they nominated.  However, the Authority found that the applicant did not experience any harm as a result of refusing to do so. The Authority accepted that in Colombo the applicant was taken from a bus and held for one day and that he was humiliated by that experience.

3. Ultimately, the Authority found that country information before it indicated that the TMVP was no longer in power and did not have the influence that it held in 2012 when the applicant was harassed as a reporter for the Tamil National Alliance (“TNA”). 

4. The Authority was not satisfied that past or present TNA members or those who worked for the TNA in the past would be subject to harm from the TMVP in the foreseeable future. The Authority identified with particularity the country information to which it hard regard in making those findings.

5. It is well settled that the country information to which a decision maker has regard and the weight it gives that information is a matter for the decision maker (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

6. Otherwise, the Authority’s findings were open to it on the evidence and material before it and for the reasons it gave. The Authority’s findings were probative of the issues before the Authority and were not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

7. Accordingly, no jurisdictional error is made out in Ground 1.

Ground 2

1. Ground 2 asserts that the Authority used “excessive authority” in disregarding the harm the applicant would be subject to by the paramilitary groups as a reporter of the TNA if he returned to Sri Lanka. 

2. The Authority accepted that the applicant worked for the TNA as a reporter and was harassed by the TMVP in 2012 for that reason.  However, again, the Authority referred to country information before it which revealed that the TMVP was no longer in power or had the same influence it held in 2012 when the applicant left Sri Lanka.

3. Accordingly and as stated above, the Authority found that TNA members past and present, or those who worked for the TNA in the past, would not be subject to harm from the TMVP in the foreseeable future based on the country information before it. 

4. Accordingly, no jurisdictional error is identified out in Ground 2.

Ground 3

1. Ground 3 asserts that the Authority disregarded the strong possibility that the applicant would face indefinite detention if the applicant returned to Sri Lanka as he was a person of interest to the paramilitary groups.

2. However, the Authority had not accepted that the applicant would be of interest in the future to the TMVP and did not find that the applicant would be subjected to indefinite detention. In fact, the Authority found that the applicant would face only a brief period in detention pursuant to the law of universal application in the Immigrants and Emigrants Act. Further, it was open to the Authority to find that the definition of significant harm was not satisfied in the absence of an 'actual subjective intention’ (see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362).

3. Accordingly, no jurisdictional error is identified in Ground 3.

Ground 4

1. Ground 4 asserts that the Authority ignored relevant material, that the applicant would be perceived as an advocate for anti-government views as a reporter for the TNA.

2. However, as referred to above, the Authority considered the risk of harm to the applicant if he was to return to Sri Lanka at the time of the Authority's decision and assessed the applicant not to be subject to harm from the TMVP in the foreseeable future. 

3. As stated above, that finding was based on country information before the Authority and in circumstances where the Authority accepted the difficulties that the applicant claimed to have had in the past. 

4. Otherwise, the applicant did not identify any other material that the applicant alleges the Authority ignored and none is apparent on a fair reading of the material before this Court. 

5. Accordingly, no jurisdictional error is identified out in Ground 4.

Ground 5

1. Ground 5 asserts that the Authority relied on irrelevant material and did not consider the applicant's main claim that if he returned to Sri Lanka he faced a real chance of serious harm by Sri Lankan authorities and the paramilitary group due to his status as a minority Tamil and his involvement with the TNA. 

2. The applicant has not identified any particular irrelevant material relied on by the Authority, and again none is apparent on the face of the Authority’s decision record.

3. Otherwise, the Authority considered in detail the applicant's claims, which as stated above it accepted, but found that the applicant was not at risk of harm if returned to Sri Lanka based on the country information identified by the Authority. 

4. It is well established that the Authority is not bound to accept uncritically all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). As stated above, the Authority accepted the applicant's claims of past harm but did not accept that the applicant continued to be at risk based on the country information before it.

5. As stated above, the Authority's findings were open to it on the evidence and material before it and for the reasons it gave. The findings of the Authority were probative of the issues before the Authority and were not without an intelligible justification.

6. Otherwise the applicant's claims, as conceded by the applicant, are more in the nature of a disagreement with the findings and conclusions of the Authority. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Wu Shan Liang at 272 above).

7. Accordingly, no jurisdictional error is identified out in Ground 5.

Typographical Error

1. Whilst not raised by the applicant, the first respondent raised the issue of a possible typographical error in the Authority's decision.

2. In the course of considering the applicant's claims and accepting those claims, the Authority accepted that the applicant was harassed by paramilitary groups while working for a government agency issuing food coupons but found “…that he did experience any harm as a result of refusing to do so”.

3. The first respondent contends that there is a "not" omitted accidentally from that sentence in that it should read, “…that he did not experience any harm as a result of refusing to do so.”

4. I accept that read in context, and noting the grammatical construction of this sentence, the “not” was accidentally omitted. Whilst I accept that to insert the word “not” into a sentence is a major radical step as a matter of construction, it is apparent from the reasons as a whole and the context of the particular part of the reasons in which this sentence occurred, that the Authority intended the word “not” to form part of that sentence.  The sentence without the "not" is otherwise comprehensively inconsistent with the Authority's finding that the applicant did not face past harm (see Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 at [48] per Marshall J and S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 at [28] – [32] per Carr J.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.

1. The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date:  24 June 2019