BHP17 v Minister for Immigration and Anor (No.2)
[2020] FCCA 1726
•15 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHP17 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 1726 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – application for an extension of time – reinstatement application – whether the Authority applied the relevant law – whether the Authority took into account relevant considerations – whether the interests of the administration of justice warrant a reinstatement of the proceedings – application for reinstatement dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 477 |
| Applicant: | BHP17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3037 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 26 June 2020 |
| Date of Last Submission: | 26 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2020 |
REPRESENTATION
The Applicant appeared in person via Microsoft Teams
| Solicitors for the First Respondent: | Ms S Lloyd via Microsoft Teams HWL Ebsworth |
ORDERS
The application in a case dated 10 June 2020 is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3037 of 2019
| BHP17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application in a case for the reinstatement of proceedings which were dismissed on 15 May 2020 under r 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth). The application in a case for the reinstatement of proceedings was filed on 10 June 2020.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing in respect of the reinstatement proceedings as explained by the Court.
The first respondent accepted that there was a sufficiently satisfactory explanation for the applicant’s failure to appear on 15 May 2020 in the circumstances. The first respondent submitted that there would be no utility in reinstating the proceedings as the applicant did not have a sufficiently arguable case to warrant an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) in circumstances where the substantive application was filed 27 days outside the 35-day period. The first respondent submitted that, at an impressionistic level, the four grounds lacked sufficient merit to identify an arguable case of relevant error and that there was an inadequate explanation for the delay in the commencement of the substantive proceedings.
The applicant was found by the Authority to be a citizen of Sri Lanka and his claims were assessed that country. The applicant was found to be a Tamil from a particular district in the Eastern Province who departed Sri Lanka illegally and arrived in Australia as an unauthorised maritime arrival in October 2012.
In July 2016, the applicant applied for a Safe Haven Enterprise visa. The applicant claimed to fear harm, in summary, by reason of his Tamil ethnicity, his illegal departure from Sri Lanka, by reason of being part of a court case and the Sri Lankan government being aware that the applicant applied for asylum.
On 29 December 2016, a delegate of the first respondent (“the Delegate”) found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
On 10 January 2017, a differently-constituted Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the differently-constituted Authority for review. That letter attached a fact sheet and practice direction, providing the applicant an opportunity to put on new information and submissions.
On 27 February 2017, that differently-constituted Authority delivered its decision. That decision was the subject of proceedings which gave rise the matter being remitted to the Authority for reconsideration by orders made in the Federal Court of Australia on 8 August 2019. The basis for that order concerned the overlooking or otherwise failing to consider the applicant’s post-interview submission dated 3 January 2017.
On 12 September 2019, the reconstituted Authority wrote to the applicant explaining that the matter had been remitted for reconsideration before the Authority. On 19 September 2019, the applicant provided further submissions and new information.
The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act.
The Authority’s reasons expressly refer to the submissions of 3 January 2017 and identified considering the same. The Authority also identified in the submissions of 3 January 2017 new information. The Authority was not satisfied that there were exceptional circumstances to justify considering the new information. The Authority’s reasons reflect taking into account the whole of the provisions of s 473DD of the Act.
The Authority also referred to the further submissions dated 19 September 2019 and identified new information in that regard. The Authority was not satisfied that there were exceptional circumstances to justify considering that new information. The Authority’s reasons again reflect the Authority taking into account the whole of the provisions of s 473DD of the Act.
The Authority also identified country information, including a report dated 23 July 2018. The Authority was satisfied that there were exceptional circumstances to justify considering that new information.
The Authority summarised the applicant’s claims, including referring to the applicant having had a court action in Australia that prevented his return to Sri Lanka and alleging that the Sri Lankan Government was aware of the events.
The Authority correctly identified the relevant law, including in an attachment of applicable law incorporated by pagination in the Authority’s reasons.
The Authority expressly referred to and had an active intellectual engagement with the report dated 23 July 2018. The Authority also took into account recent Department of Foreign Affairs and Trade (“DFAT”) country information dated 23 May 2018.
The Authority was not satisfied that the applicant faced a real chance of harm now or in the reasonably foreseeable future at the hands of the Karuna Group or any rival group or the Sri Lankan authorities for any reason arising from questioning by the Karuna Group.
The Authority did not accept that the applicant or his brother had been tortured by the Tamil Makkal Viduthalai Pulikal (“TMVP”). The Authority found that the applicant had embellished this aspect of his claim.
The Authority was not satisfied that the TMVP or any other group or organisation has visited a particular person or any member of the applicant’s family enquiring about the applicant or that it has threatened to kill the applicant should he return to Sri Lanka.
The Authority was not satisfied that the applicant faced a real chance of harm from the Sri Lankan government in relation to the renewal of his passport.
The Authority was not satisfied that the applicant has an adverse profile with the Sri Lankan authorities for any reason arising from his previous interactions with the TMVP, Tamil National Alliance (“TNA”) or the Karuna Group.
The Authority referred to the applicant’s brother having been involved in the Liberation Tigers of Tamil Eelam (“LTTE”) prior to 2005 and that the applicant was approached by the LTTE but declined to join the movement. The Authority was not satisfied that the applicant will be marked out as different from any other Tamil male from the East who has no adverse profile. The Authority was not satisfied on the evidence before it that the applicant was of adverse interest to any political or paramilitary groups or that he will be reported on by informers, falsely or otherwise. The Authority was not satisfied that the applicant will come to the adverse attention of the authorities or that he faces a real chance of harm at the hands of the authorities, including arrest or detention under the Prevention of Terrorism Act (Sri Lanka) as a Tamil or as a Tamil male from the East. The Authority was not satisfied the applicant faced a real chance of harm as a Tamil or a Tamil male from the East.
The Authority referred to the applicant to be returning as a Tamil asylum-seeker with no other profile and taking into account other country information. The Authority was not satisfied that the applicant faced a real chance of serious harm as a returned asylum‑seeker.
The Authority referred to the applicant having departed Sri Lanka illegally in contravention of the Immigrants and Emigrants Act (Sri Lanka) and referred to country information that indicated that all returnees are treated the same, regardless of their background. The Authority referred to returnees, if they plead guilty, being fined, which may be paid by instalments, and being free to go, and that, if they plead not guilty, they are granted bail immediately on the basis of a personal surety or a guarantee by a family member.
The Authority accepted that the applicant would more than likely be subject to questioning and possible short-term detention and a fine. The Authority did not accept that the processes and penalties described give rise to what may constitute serious harm as contemplated by s 5J(4)(b) and sub-s (5) of the Act. The Authority found that the imposition of the provisions in the Immigrants and Emigrants Act (Sri Lanka) does not constitute persecution within the meaning of s 5J(4)(c) of the Act.
The Authority was not satisfied that the applicant has a well-founded fear of persecution in Sri Lanka now or in the reasonably foreseeable future. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.
The Authority in relation to complementary protection referred to the findings in relation to the processes to which the applicant may be subject, including being questioned and held in an airport holding cell for potentially up to two days. The Authority was not satisfied that these processes or the penalties imposed amount to significant harm.
The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.
Accordingly, the Authority affirmed the decision under review.
Before the Court
The applicant submitted orally that the Authority had made the same error that had been identified by the Federal Court of Australia. There is no basis for that proposition. The Authority’s reasons reflect an active and intellectual engagement with the document that gave rise to the finding of error in respect of the differently-constituted Authority’s decision. No argument or case of relevant error is disclosed by reasons of the applicant’s reference to the earlier decision of the Federal Court of Australia.
The applicant also referred to having suffered an injury. It is correct that, at page 196 in the Court Book, the applicant sent an email on 18 September 2019 in which he alleged that he is a disabled person due to a recent accident in Sydney. Subsequent to that email, the applicant provided written submissions in support of the applicant’s claims in response to the notification of the reconstituted Authority. Those submissions, which commence at page 199 in the Court Book, make no reference to the applicant having any claim to fear harm by reason of that accident.
The Authority in its reasons referred to the absence of any medical or other evidence to support that the applicant is suffering from any mental or other health conditions, undergoing any treatment or that his health is otherwise affected.
The Court does not accept that there was a claim or an integer of a claim that fairly rose on the material before the Authority concerning the applicant’s reference to the accident sent in the email dated 18 September 2019. The claim did not fairly arise on the material before the Authority. No arguable case of jurisdictional error arises by reason of the applicant’s reference to the accident and alleged disability.
The applicant also referred to having been a party to substantive court proceedings. Those proceedings were expressly referred to in the second last dot point in paragraph 16 of the Authority’s reasons and were the subject of an adverse finding beginning at paragraph 45 of the Authority’s reasons. No arguable case of jurisdictional error arises by reason of the applicant’s reference to the proceedings in which he was a party with others.
The applicant’s oral submissions otherwise invited the Court to engage in impermissible merits review.
Nothing said by the applicant orally identified any arguable case of jurisdictional error.
Proposed grounds in the application
The proposed grounds in the application are as follows:
1. The Immigration Assessment Authority (hereinafter referred as ‘the Authority’) erred in its finding at [paragraph 50] without evidence that the impecunious applicant’s family member could act as personal surety or a guarantee or pay the fine and costs associated with court visits which is an unfounded assumption and is a jurisdictional error.
Particulars:
a. Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [41] in considering whether there had been a denial of procedural fairness in that case, “the circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance” of a substantial kind.
b. Applicant’s father died on 23 November 2017. The applicant’s elder brother … met with a train accident on 3 November 2005 where both of his legs were severed and as a result he became totally disabled and have no income. Applicant’s elder sister … was born blind. Applicant’s mother is a widow and have no income and struggling to survive. Therefore, the applicant has no way to recourse to financial assistance or to act as his personal surety or a guarantee from his family members.
c. The findings and the conclusion reached by the Authority at [paragraph 50] involved an unfounded factual assumption about the nature and extent of support that the applicant was able to obtain from his family members in Sri Lanka. (See: DHKJ 6 v Minister for Immigration and Border Protection [2018] FCA 1353).
2. The change of government and the new information of the country the Authority’s decision has become legally unreasonable. (See: Australian Retailers Association v Reserve Bank 1707 at [457]-[459]).
Particulars:
a. The delegate’s decision was dated 30 December 2016 when the political situation was drastically changed in Sri Lanka on 17 November 2019 and the arrival of the Mahinda Rajapaksa’s younger brother Gotabaya Rajapaksa (also known as “the Terminator”) as President of Sri Lanka who was the former Defence Secretary under his elder brother Mahinda Rajapaksa who was the President of Sri Lanka at that time which was not taken to consideration by the delegate. Rajapaksa’s administration was accused of serious human rights violations during the final stages of the conflict between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE).
b. It is a matter of record that the Sri Lankan military indiscriminately attacked civilians, hospitals and schools, executed prisoners and interned thousands of Tamils with widespread use of torture and sexual violence. Thousands of Tamils and other minorities with links to the Tigers were also forcibly disappeared. For a beleaguered Tamil population in the north and east of the country, the concern will be that history could repeat itself with the threat of further discrimination and violence looming. With no real accountability processes for previous crimes committed, Gotabaya Rajapaksa’s (The Terminator) becoming President of Sri Lanka could see Tamil activists and perceived dissidents targeted once again. Gotabaya’s elder brother Mahinda Rajapaksa is the Leader of the opposition and opposes any move to grant rights or to address the grievance of the Tamils.
3. The Authority failed to consider societal discrimination enunciated by the Report of the UN Rapporteur … dated 23 July 2018 (… Report) superimposed by the DFAT report 23 May 2018.
Particulars:
a. The Authority erred in its finding at [paragraph 48] “In more general terms, the applicant has family in the East and he has not claimed that he will be unable to engage with them. The information before me does not indicate that the applicant will be prevented from obtaining, or be unable to obtain, employment education or access to services because he is a returned asylum seeker.”
b. The applicant reiterates the particulars in Ground 1 above.
c. The new Report of the UN Rapporteur … dated 23 July 2018 (… Report) in support of the applicants’ protection claims in Australia.
d. According to the 2018 … report, Tamils also experience pervasive and insidious of stigmatisation.” at [para 55] of the said report.
e. The Special Rapporteur was told about the surveillance of Tamil civil society, including women’s groups and of fear of reporting alleged human rights violations and sexual violence to the authorities. [para 55] of the said report.
f. The Special Rapporteur said “When viewed side by side with the figures that show that Tamils have been, and still are, overwhelmingly and disproportionately affected by the operation of the Act (PTA), a figure emerges of widespread institutional stigmatisation of a single community. [para 56] of the said report.
g. The Special Rapporteur said in his conclusion “The Tamil community remains stigmatised and disfranchised, while the trust of other minority communities is being steadily eroded.
4. The Authority erred in law in failing to respond to the appellant’s claim to fear of significant harm in Sri Lanka prisons by reason of being imprisoned on pre-trial remand for up to two weeks.
a. The Authority said that “The applicant has not claimed one way or the other as to how he would plead; however, I accept that he will more likely be subject to questioning, possible short-term detention and a fine.” at [paragraph 51].
b. The fact that the applicant is a part of a group of 56 Sri Lank.an asylum seekers who in December 2012 obtained a High Court Injunction to prevent their removal from Australia. The Sri Lank government is aware of this decision and the details of the persons at [paragraph 4] of the decision of the Authority in its previous decision dated 27 February 2017 and the delegate’s decision dated 29 December 2016 at [page 3] mentioned “23 people including the applicant were prevented from being returned to Sri Lanka and the Sri Lankan government is aware of their status as asylum-seekers.” This information would increase the chance of harm for the applicant such that there would be a real chance of harm. This information was not considered by the Authority in its present decision dated 20 September 2019.
c. The Authority’s findings in respect of the applicant’s claim for a protection visa on the complementary protection ground in s 36(2)(aa) of the Migration Act 1958 (Cth) in contrast to the Refugees Convention ground in s 36(2)(a). The Authority did not deal with the applicant’s case of torture whilst in remand detention under the complementary protection provisions.
d. The Authority also did not properly deal with the Pre-Trial Remand Claim in considering the applicant’s claim for a protection visa on the complementary protection ground. Where the Tribunal fails to deal with a claim expressly articulated by an applicant, this is a jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs 144 FCR 1 at [55]-[63]. Therefore, the Authority committed a jurisdictional error.
Proposed ground 1
In relation to proposed ground 1, this is not a case where the Authority found that a family member could act as a personal surety or guarantor. The Authority made findings in relation to the applicant’s illegal departure in paragraphs 50, 51 and 56 of its reasons, which reflect a correct consideration of the criteria under the 1951 Refugee Convention and in relation to complementary protection. The adverse findings were open for the reasons given by the Authority as summarised above. There was no assumption by the Authority of the kind alleged in proposed ground 1. No arguable case of relevant error is disclosed by proposed ground 1.
Proposed ground 2
In relation to proposed ground 2, it is apparent that the Authority had an active intellectual engagement with the applicant’s claims and made adverse findings taking into account country information that were open for the reasons given by the Authority. The weight to give country information was a matter for the Authority and not every piece of evidence must be referred to in the Authority’s reasons. The change in government that occurred after the Authority’s decision and change in the political situation taking place in November 2019 is an event subsequent to the Authority’s decision and, as such, is not capable of giving rise to any arguable case of jurisdictional error. It is apparent that the Authority did consider country information, including the DFAT report dated 23 May 2018. It was open to the Authority to decide what country information it accepted. The outcome of the Authority’s reasons is not shown to be such that no reasonable decision maker could decide. The Authority’s reasons as summarised above provide an evident and intelligible basis for the adverse findings. No arguable case of legal unreasonableness is disclosed. No arguable case of relevant error is disclosed by proposed ground 2.
Proposed ground 3
In relation to proposed ground 3, it is apparent that the Authority did consider the report dated 23 July 2018 and had an active intellectual engagement with the same and made adverse findings that were open and the Authority expressly took into account the Prevention of Terrorism Act (Sri Lanka). No arguable case of relevant error is disclosed by proposed ground 3.
Proposed ground 4
In relation to proposed ground 4, this, in substance, reflects a disagreement with the adverse findings by the Authority. The Authority did not accept that the applicant would be held on remand for up to two weeks, but rather made a finding that the detention would be short term and that the holding in a cell at the airport may be up to two days. The Authority’s reasons reflect the making of dispositive findings in respect of the applicant’s claim that were open for the reasons summarised above. No arguable case of jurisdictional error is disclosed by proposed ground 4.
Accordingly, even if the Court were to accept the applicant as having a satisfactory explanation for the delay at an impressionistic level under s 477 of the Act, there is no sufficiently arguable case for the Court to find that it is necessary in the interests of the administrative of justice to make an order under s 477 of the Act.
Returning to the merits of the application for reinstatement, the Court is satisfied there would be no utility in reinstating the proceedings as the proceedings lack a sufficiently arguable prospect of success to make necessary an extension of time necessary in the interests of the administration of justice. The Court is satisfied that the application fails to disclose a reasonably arguable case of relevant error.
The Court is satisfied that the interests of the administration of justice do not warrant a reinstatement of the proceedings in the circumstances of the present case, given that there is no reasonably arguable case of relevant error by the Authority and no reasonable prospect of an extension of time under s 477 of the Act. Accordingly, the application in a case dated 10 June 2020 is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 15 July 2020
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