BHW17 v Minister for Immigration

[2020] FCCA 799

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHW17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 799

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority asked itself a wrong question – whether the Authority misapplied the relevant law – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 473CB, 473DD, 476

Applicant: BHW17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 173 of 2017

Judgment of: Judge Street

Hearing date: 7 April 2020

Date of Last Submission: 7 April 2020

Delivered at: Sydney

Delivered on: 7 April 2020

REPRESENTATION

Counsel for the Applicant: Mr M Guo via Microsoft Teams

Solicitors for the Applicant: Estrin Saul

Counsel for the Respondents: Mr G Johnson via Microsoft Teams

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The hearing will be recorded by Microsoft on Microsoft Teams and by Auscript on the Judge’s microphone and no other recording of the hearing is to be made.

3. A link to the Microsoft Teams recording will be uploaded to the “Transcript” folder on the Electronic Court File and may be made available to the parties upon request.

4. Leave is granted to the applicant to rely upon the amended application filed on 24 March 2020.

5. The amended application is dismissed.

6. The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

DATE OF ORDER: 7 April 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 173 of 2017

BHW17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 10 March 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil Hindu from a particular district in the Eastern Province of Sri Lanka. The applicant left Sri Lanka illegally by boat in September 2012 and arrived in the Coco Islands in October 2012.

3. On 18 March 2016, the applicant lodged a valid application for a Safe Haven Enterprise visa. The applicant, in summary, claimed to fear harm on the basis of his race, ethnicity, an imputed association with the Liberation Tigers of Tamil Eelam (“LTTE”), his support for the Tamil National Alliance (“TNA”), his former position in a workers’ union and being a returned asylum seeker who left Sri Lanka illegally.

4. On 1 September 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 15 September 2016, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction, providing the applicant an opportunity to put on new information and submissions.

6. The applicant put on submissions dated 11 October 2016 and new information, to which the Authority expressly referred in its reasons. Relevantly, in those submissions, the applicant’s representative had two paragraphs under a heading “New Information” on page 168 which are set out as follows:

   Despite accepting the Applicant’s ‘highly credibly’ evidence that ‘[s]ince [he] came to Australia [the CID and SLA] have been to [his] house looking for [him]’ and that ‘[s]ince 2012 [the CID and SLA] have also called [his] wife’s mobile looking for [him]’, the Delegate erroneously found that there was ‘no information to indicate the [A]pplicant is the subject of any current investigation’. The Applicant now provides information which was not before Delegate at the time of the Decision which includes copies of documents he has only obtained after the Decision was finalised. This information includes two letters from the Applicant’s niece,…, to the Australian High Commission in Sri Lanka (see annexures “C” and “D”) (received by the Australian High Commission on 29 July 2016 and 22 August 2016) and a letter from the Australian High Commission dated 25 August 2016 (see annexure “E”) confirming receipt of these letters. In the letters, the Applicant’s niece explains that there are ‘unknown people’ enquiring about the Applicant (currently in Australia) and his sister (who has been granted asylum in Belgium).

   This information could not have been provided to the Delegate at the time of the Decision because it was not in the Applicant’s possession at the time of the Decision. Further, it has been obtained by the Applicant in response to the information provided in the Decision (namely, the Delegate’s incorrect finding that that there was ‘no information to indicate the [A]pplicant is the subject of any current investigation’). This information is directly relevant to assessing whether the Applicant satisfies the requirements for the grant of this visa and as such, the IAA should find that there are exceptional circumstances to justify considering this new information.

7. 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.

8. The Authority identified that, insofar as the applicant’s submissions engaged with the Delegate’s decision, it was not new information and had regard to the same.

9. The Authority identified two letters relating to harassment of the applicant’s family in Sri Lanka in 2016 and correctly identified that as being new information.

10. The Authority referred to having considered an audio recording of the interview in July 2016. The Authority was satisfied that the applicant did claim that the authorities had called his wife’s mobile looking for him and that, since the applicant came to Australia, they had gone to his house looking for him. The Authority noted that the Delegate told the applicant that he needed more detail on the applicant’s fear of returning to Sri Lanka. The Authority noted that the applicant did not expand on his statement that people had come looking for him.

11. The Authority referred to the Delegate finding that there was no information to indicate that the applicant is the subject of any current investigation in relation to any imputed or previously imputed link to the LTTE. The Authority also referred to the Delegate noting that the applicant conceded that his previous association with the TNA and his previous role as a union leader would “probably no longer cause problems” for him in Sri Lanka.

12. The Authority then referred to the applicant’s submission that, until the decision of the Delegate was received, he did not realise that the Delegate had an alleged erroneous belief that there was no information suggesting that the applicant remained a person of interest. The Authority summarised that the applicant submitted that this is why he was unable to provide the information before the decision.

13. The Authority noted that both letters post-dated the interview and referred to incidents alleged to have occurred in 2016 and that both letters pre-date the decision.

14. The Authority took into account that the applicant was unrepresented but was satisfied that the Delegate carefully explained to the applicant the requirement to provide full and complete claims and gave the applicant a number of opportunities to provide further information. The Authority also noted that the Delegate clearly explained that he was trying to determine what profile the applicant might hold in Sri Lanka now.

15. The Authority was satisfied that the applicant was given sufficient indication that his present circumstances, including any evidence relating to threats against him or his family since his departure, would be critical to the decision.

16. It was in the context of that reasoning that the Authority found that, having considered all these factors, it was not satisfied there were exceptional circumstances to justify considering this new information.

17. The Authority summarised the applicant’s claims.

18. The Authority noted that the applicant had not claimed and that there is no evidence that he was identified as a person of interest in relation to being detained for 3 days and then released in 1995. The Authority found that there are no claims or evidence that the applicant or any other member of his family has been detained, arrested, questioned or harassed in relation to a particular person who had stayed with the family and then fled to Belgium since the ending of the conflict. The Authority was satisfied that any profile the applicant may now have remains at a very low level.

19. The Authority found that the applicant does not face a real chance of serious harm on the basis of being a Tamil, a Tamil from the east or a Hindu.

20. The Authority found that the applicant may have faced harassment or mistreatment as a result of his union activities but was not satisfied that this situation will remain if the applicant returns to Sri Lanka.

21. The Authority was satisfied that the applicant does not face any risk of harm from either the Criminal Investigation Division (“CID”) or the Tamil Makkal Viduthalai Pulikal (“TMVP”) in relation to the particular person who fled to Belgium. The Authority found that the harassment that the applicant suffered at the time was due to his role in the union and not for any security or criminal suspicion.

22. The Authority was not satisfied that the applicant will face a real chance of harm at the hands of the TMVP or the CID should he return to Sri Lanka. The Authority was also not satisfied that the applicant will face a real chance of harm for reasons of his support for the TNA.

23. The Authority accepted that the applicant departed Sri Lanka illegally. The Authority found that the fine imposed or requirement for any bail, surety or guarantee would not constitute serious harm. The Authority was satisfied that the fine, detention or questioning of the applicant under the Immigrants and Emigrants Act (Sri Lanka) would not constitute serious harm and would be the exercise of laws of general application that apply to all Sri Lankans equally.

24. The Authority was not satisfied that the applicant will face a real chance of serious harm on the basis of any real or imputed association with the LTTE, at the hands of the TMVP, as a result of his support for the TNA, his role in the workers’ union, his ethnicity or religion, being a Tamil from the east or being a returned asylum seeker who departed Sri Lanka illegally.

25. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

26. 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 will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

27. Accordingly, the Authority affirmed the decision under review.

Grounds in the Amended Application

1. The grounds in the amended application are as follows:

   1. The Immigration Assessment Authority (IAA) erred by constructively asking itself the wrong question in relation to the existence of exceptional circumstances when it concluded that there were none to justify the consideration of two letters written by the Applicant’s niece to the Australian High Commission and the High Commission’s letter in response.

   Particulars

   (a) Reaching a state of satisfaction as to ‘exceptional circumstances’ under s 473DD(a) needed to have been done reasonably and on a correct understanding of the law.

   (b) On a reasonable approach as to the facts before the IAA, and correct understanding of the law, the fact that the letters were not in possession of the Applicant at the time of the delegate’s decision meant that the matters in s 473DD(b)(i) were satisfied, and that should have been but was not considered by the IAA when forming its state of satisfaction as to the matters in s 473DD(a).

   (c) Alternatively, the letters satisfied the matters in s 473DD(b)(ii) and that should have been but was not considered by the IAA when forming its state of satisfaction as to the matters in s 473DD(a).

2. Mr Guo of counsel on behalf of the applicant submitted that the Authority had misunderstood the applicable law in relation to s 473DD of the Act by reason of its reference to the two letters, which post-dated the interview but pre-dated the decision, effectively not being in the possession of the applicant. Mr Guo referred to the same by reference to the submissions that had been put to the Authority as quoted above, as providing information that could not have been provided to the Delegate at the time of the Delegate’s decision because they were not in the applicant’s possession. That submission referred to the documents only being obtained after the decision was finalised and in response to the alleged incorrect finding.

3. It is apparent, on a fair reading of the Authority’s reasons, that the Authority had a real and meaningful engagement with the submissions advanced by the applicant in respect of the new information. The Authority correctly identified the substance of the two letters suggesting the applicant remained a person of interest. There is no basis to find that the Authority misunderstood or misapplied the relevant law in relation to s 473DD of the Act. The applicant’s submissions are, in substance, an invitation to this Court to engage in merits review. On the face of the Authority’s reasons, the Authority correctly understood both limbs of s 473DD of the Act and took into account the whole of the provision.

4. It was submitted by Mr Guo that there was no express reference to the language used in s 473DD(b)(ii) of the Act. That is not a basis to find that the Authority failed to take into account the whole of the provision. Indeed, the reference in the Authority’s reasons at paragraphs 6 and 7 to the opportunities given to the applicant to raise particular matters plainly go to whether or not it was personal, credible information. The Court does not accept that on a fair reading the Authority’s reasons should be confined as going only to the considerations of s 473DD(b)(i) of the Act.

5. Accordingly, the Court is not satisfied that there has been any misunderstanding or misapplication of the relevant law in relation to s 473DD of the Act.

6. Mr Guo expressly informed the Court that he was not arguing that the finding by the Authority in respect of the new information not meeting the criteria under s 473DD of the Act was legally unreasonable. In any event, there would be no basis for such a submission because the Authority provided an evident and intelligible justification for the adverse finding under s 473DD of the Act.

7. No jurisdictional error as alleged in the amended application is made out. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 April 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 27 May 2020