BHF17 v Minister for Immigration

[2020] FCCA 3142

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHF17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3142

Catchwords:

MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that a critical finding was unsupported by evidence and the decision was unreasonable as a result.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473BB, 473CA, 473CB, 473DA,

473DB, 473GA, 473GB, 474.

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: BHF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 916 of 2017

Judgment of: Judge Cameron

Hearing date: 10 November 2020

Date of Last Submission: 10 November 2020

Delivered at: Sydney

Delivered on: 20 November 2020

REPRESENTATION

Counsel for the Applicant: Mr G. Foster

Solicitors for the Applicant: Sentil Solicitors

Solicitor for the Respondents: Ms S. Roberts of Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 916 of 2017

BHF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived by boat at the Cocos Islands on 26 October 2012 without a visa permitting him to enter and stay in Australia.  On 9 March 2016 he lodged an application for a Safe Haven Enterprise Visa (“SHEV”) with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka.  On 14 September 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and his matter was referred to the second respondent (“IAA”) for review.  The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.

2. In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the IAA’s decision will be dismissed.

FAST TRACK REVIEW LEGISLATIVE FRAMEWORK

1. On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. 

Definitions

1. Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:

   (i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)who has made a valid application for a protection visa in accordance with the determination;…

2. The applicant is a fast track applicant.

3. Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.

Fast Track Process and Procedures

1. Part 7AA of the Act sets out the IAA fast track process and procedures.

2. Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review. Section 473CB relevantly provides:

   473CB  Material to be provided to Immigration Assessment Authority

   (1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (a)    a statement that:

   (i)     sets out the findings of fact made by the person who made the decision; and

   (ii)    refers to the evidence on which those findings were based; and

   (iii)   gives the reasons for the decision;

   (b)material provided by the referred applicant to the person making the decision before the decision was made;

   (c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; …

3. Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. Section 473DB relevantly provides:

   473DB       Immigration Assessment Authority to review decisions on the papers

   (1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

   (a)    without accepting or requesting new information; and

   (b)    without interviewing the referred applicant.

   …

STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA

1. Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:

   36 Protection visas—criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   …

   (2A)  A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

   5H Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

   (a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)the real chance of persecution relates to all areas of a receiving country.

   …

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   …

   (b)the persecution must involve serious harm to the person; and

   …

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   …

BACKGROUND FACTS

Protection visa claims

1. The applicant’s written claims for protection were made in his SHEV application and in submissions to the Department on 22 June 2016.  The applicant also gave oral evidence at an entry interview on 27 January 2013 and a departmental interview on 8 June 2016.  As summarised by the Minister in his written submissions, the applicant relevantly made the following claims:

   3.The applicant is a male citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 26 October 2012.

   4.On 27 January 2013, the applicant participated in an entry interview, where his reasons for leaving Sri Lanka were first recorded.  The applicant claimed that in September 2012, members of the paramilitary working for the Sri Lankan government had threatened to kill him because he had been working for [a political party].  The applicant also claimed that he had been forced to work for the Liberation Tigers of Tamil Eelam (LTTE) for four months in 2005, during which time he worked cutting down trees before he escaped.  He stated that he had not received training and had not fought for the LTTE.

   5.On 9 March 2016, the applicant applied for a SHEV.  The applicant’s claims were set out in a statement provided with the application.  In summary:

   a.The applicant claimed to fear harm because of his Tamil ethnicity and his imputed political opinion as a supporter of the LTTE, because of his support for [a political party] and because of his membership of political social groups, being “Sri Lankans who have illegally departed from Sri Lanka” and “Sri Lankans who have sought asylum abroad”.

   b.The applicant described being forcibly taken to an LTTE training camp in July 2004 after being stopped by the LTTE at a [village] checkpoint….  The applicant stated he had not received any military or weapons training and that he had worked as a labourer while in the camp.  The applicant claimed to have escaped after approximately three and a half months, and that after this his family was threatened by the LTTE that the applicant should hand himself over to them.

   c.The applicant claimed that during his escape, he was caught by the Sri Lankan Army at a checkpoint and taken to the Army Camp, where the police came to pick him up.  The applicant claimed that he spent one night at the police station and was released by the Court the next morning.

   d.The applicant claimed that during the September 2012 election he was a supporter of the opposition party....  The applicant claimed that he was well known in his community, and that his community followed him in supporting the [opposition party].  The applicant claimed that a meeting between the ruling party and the [opposition party] was held on 2 September 2012, which the applicant attended.  During this meeting most people who attended supported the [opposition party], which angered the ruling party and caused them to start inquiring into people involved in gathering supporters for the [opposition party].

   e.The applicant claimed he was of interest to the ruling party for this reason, and two days after the meeting the applicant received an anonymous call threatening him.  A person identifying himself as … ([the] candidate for the ruling party) went to the applicant’s mother’s home and made threats that the applicant would be killed if he did not stop his activities.  The applicant claimed that [this candidate] lost the election, and one week later the applicant received a threatening telephone call from a person he believed to be [the candidate].

   (references omitted)

2. I adopt that summary.

The IAA’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The IAA’s findings were summarised by the Minister in his written submissions in the following terms which I also adopt:

   13.On 28 February 2017, the Authority affirmed the decision not to grant the applicant a SHEV

   14.The Authority accepted that applicant had been detained by the LTTE and had been forced to live and work for the LTTE for approximately four months in 2005.  However, the Authority also found that the applicant did not claim to have had adverse experiences with the Sri Lankan government as a result of his experiences with the LTTE.  Specifically, the Authority found that: the applicant had given evidence that he was not involved in weapons or combat training with the LTTE, that he had obtained a Sri Lankan passport without difficulty, and that he had been employed in a government department without difficulty from November 2009 to October 2012.  The Authority concluded that the applicant was not regarded by the Sri Lankan government as a person with links to the LTTE and that his experience with the LTTE in 2005 did not give rise to a real chance of serious harm.  For the same reasons, the Authority found that the applicant was not at risk of significant harm due to his involvement with the LTTE.

   15.The Authority considered the applicant’s claim to fear harm due to his Tamil ethnicity as part of its consideration of the applicant’s risk of harm due to his involvement with the LTTE.  The Authority had regard to country information regarding the treatment of Tamils in Sri Lanka, to the effect that the monitoring and harassment of Tamils had generally ceased and the government’s focus was on preventing a resurgence of the LTTE and any movement towards a separate Tamil state.  The Authority cited country information which stated that Tamils are not in need of international protection solely because they come from an area previously controlled by the LTTE, and that a person is not in need of protection unless they are perceived to have a role in post-conflict Tamil separatism or they appear on a stop list at the airport.  The Authority found that the applicant did not claim to have been involved in any Tamil organisations in Australia.  The Authority found that the applicant was not regarded by the authorities as a person who had links to the LTTE.  The Authority did not accept that the applicant faced a real chance of serious harm or real risk of significant harm because of his Tamil ethnicity.

   16.The Authority accepted the applicant’s claims to have supported the [opposition party] and his involvement in the meeting in September 2012.  The Authority accepted that the applicant had received threatening telephone calls during and after the election, including from a ruling party candidate, and accepted that the ruling party candidate made a threatening visit to the applicant’s mother.  However, the Authority found that the [opposition party] was a member of the Tamil National Alliance (TNA), and that the TNA was the most successful party in the north and east of Sri Lanka.  The Authority found that the strong position of the [opposition party] and TNA in the east of Sri Lanka, and the more than four years which had passed since the applicant’s involvement in politics, led it to conclude that the applicant did not face a real chance of serious harm due to his previous support for the [opposition party] in 2012.  For the same reasons, the Authority found that the applicant was not at risk of significant harm due to his involvement with the [opposition party].

   17.The Authority found, on the basis of country information, that on the applicant’s return to Sri Lanka he would be questioned at the airport and would undergo identification, character and security checks.  The Authority found that the applicant would be arrested and charged under the I&E Act in relation to his illegal departure, would be held on remand, released on bail, and ultimately fined.  The Authority found that this treatment did not amount to serious harm or significant harm.

   18.The Authority accepted that the applicant would be identified as a failed asylum seeker, and on the basis of country information found that he was not at risk of harm as a result of this.

   (references omitted)

PROCEEDING IN THIS COURT

1. The applicant’s amended application alleged:

   2.The IAA erred when it stated at paragraph 19 [CB197]:  ‘Whilst I accept that politically motivated violence, particularly around election time, occurs in Sri Lanka, the evidence indicates that it is greatly reduced in recent elections.’

   Particulars

   iThere was no evidence or material referred to by the IAA in support of the IAA’s statement above;

   iiThe IAA considered that the ‘greatly reduced’ politically motivated violence particularly around election time, was significant, stating at paragraph 19 [CB197]:  ‘This, combined with the strong position of the [opposition party] and the TNA in the east of Sri Lanka, and the more than four years that have passed since the applicant was politically involved, leads me to find that the applicant does not face a real chance of serious harm…’;

   iiiAccordingly the IAA misunderstood and/or relied the upon [sic] material that was before it, and/or came to a conclusion that was otherwise illogical and irrational, or unreasonable.

2. The paragraph in the IAA’s decision record in which the complained of passage appears states in full:

   19I also note that in the 2015 Presidential election [opposition party] extended full support to Mr. Sirisena; the TNA was the most successful party in the north and east of Sri Lanka; and [opposition party] secured … seats.  Whilst I accept that politically motivated violence, particularly around election time, occurs in Sri Lanka, the evidence indicates that it is greatly reduced in recent elections.  This, combined with the strong position of the [opposition party] and the TNA in the east of Sri Lanka, and the more than four years that have passed since the applicant was politically involved, leads me to find that the applicant does not face a real chance of serious harm from paramilitaries and/or the Sri Lankan government because of his previous active support for [opposition party] in 2012.  I am satisfied that the applicant’s fears of persecution in this regard are not well-founded. (emphasis added)

3. The applicant pointed out that the statement that election-related violence had “greatly reduced” was unsupported by a footnote citing the evidence on which it was based whereas the IAA had given references for saying in para.17 of its reasons that:

   The applicant’s claims in this regard [about him and his mother having been threatened before and after the 2012 provincial elections] are supported by country information which indicates that the 2012 elections were marred by violence, particularly in the Eastern Province.  However the reports indicate that police and security forces were present to minimise violence and protect voters.

   The applicant sought to draw a distinction between those two passages, describing the second sentence of the IAA’s para.19 as an “unsupported assertion”.  Specifically, he submitted:

   … the unsupported assertion that politically motivated violence, particularly around election time is greatly reduced in recent elections, enabled the IAA to make a dispositive finding against the Applicant …

1. However, that is not what the IAA said. The IAA’s reference to a reduction in politically related violence was limited to violence associated with elections. 

2. Secondly, and more importantly, the IAA’s statement in para.19 of its reasons concerning a reduction in election time violence was not unsupported by the evidence as the applicant contended.  Earlier in its reasons, at para.12, the IAA had referred to then-recent political developments in Sri Lanka, saying:

   As stated by the delegate, since the applicant’s departure from Sri Lanka there has been a change of government.  “On 8 January 2015, Maithripala Sirisena defeated President Mahinda Rajapaksa in the presidential election winning 51.3 per cent of the vote, with a historically high voter turnout of 81.5 per cent.  Analysis of the election indicated that the Tamil vote was significant in Sirisena’s victory.  Sirisena campaigned on a platform of democratic reform, good governance and anti-corruption.”  According to DFAT, under the new government of Maithripala Sirisena the forced registration of Tamils no longer occurs, most checkpoints have been removed, and the monitoring and harassment of Tamils in their day to day life has generally ceased.

   The quotation in that passage comes from para.2.2 of the “DFAT Country Information Report - Sri Lanka” of 18 December 2015 which states:

   2.2On 8 January 2015, Maithripala Sirisena defeated President Mahinda Rajapaksa in the presidential election winning 51.3 per cent of the vote, with a historically high voter turnout of 81.5 per cent.  Analysis of the election indicated that the Tamil vote was significant in Sirisena’s victory.  Sirisena campaigned on a platform of democratic reform, good governance and anti-corruption.  A peaceful parliamentary election on 17 August 2015 reinforced the outcomes of the presidential election and ushered in a ‘national unity government’ of major parties.  The Tamil National Alliance (TNA) now formally leads the opposition.(emphasis added)

   It must be inferred from the IAA’s quotation of the first two sentences of that paragraph that it had read and was aware of the third sentence too.

3. Paragraph 3.26 of the DFAT report also stated:

   3.26The Presidential election on 8 January 2015 was relatively peaceful and orderly and the parliamentary election held on 17 August 2015 was described by the Commonwealth Observer Group as ‘credible, met the key criteria for democratic elections, and the outcome reflected the will of the people’.

   The contextual evidence of the IAA’s awareness of this passage is not as strong as that in relation to the third sentence of para.2.2 quoted earlier.  However, it is not unreasonable to infer that the IAA read the whole of the DFAT report and was aware of what its para.3.26 said.  I conclude that it was.

4. Those passages from the DFAT report provide evidentiary support for the IAA’s statement that although:

   … politically motivated violence, particularly around election time, occurs in Sri Lanka, the evidence indicates that it is greatly reduced in recent elections …

   Consequently, and contrary to the applicant’s submissions, the IAA did not:

   … [misunderstand] and/or [rely] the upon material that was not before it, and/or came to a conclusion that was otherwise illogical and irrational, or unreasonable.

5. The allegation advanced in the amended application has not been made out.

CONCLUSION

1. Jurisdictional error on the part of the IAA has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date: 20 November 2020