BIS18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 776
•26 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 776
File number(s): SYG 745 of 2018 Judgment of: JUDGE CAMERON Date of judgment: 26 August 2024 Catchwords: MIGRATION – Application for a protection visa – Refusal – Review of the Immigration Assessment Authority’s (“IAA”) decision.
ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error – No matter of principle.
Legislation: Migration Act 1958 (Cth), ss 36, 473DD, 474 Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at 614
Division: General Number of paragraphs: 18 Date of hearing: 6 August 2024 Place: Sydney Solicitor for the Applicants: Mr S. Hodges, Hodges Legal Solicitor for the First Respondent: Mr J. Fyfe, MinterEllison Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 745 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIS18
First Applicant
BJH18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
26 AUGUST 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicants are citizens of Sri Lanka who arrived in Australia by boat on 1 May 2013. The second applicant is the daughter of the first applicant (Applicant). On 10 May 2017, the applicants lodged an application for Safe Haven Enterprise (Class XE) (subclass 790) visas (SHEV) with what is now the Department of Home Affairs (Department), alleging that they feared persecution in Sri Lanka from the Criminal Investigation Department (CID) because the Applicant’s deceased wife, the mother of the second applicant, had been suspected of being part of the Liberation Tigers of Tamil Eelam (LTTE) and the Applicant had been detained and questioned because of his perceived connection with the LTTE. On 5 December 2017, the applicants’ application was refused by a delegate (Delegate) of the first respondent (Minister), following which the matter was referred to the Immigration Assessment Authority (IAA), for review. The applicants were unsuccessful before the IAA and have applied to this Court for judicial review of the IAA’s decision.
In this judicial review proceeding the Court cannot rehear the applicants’ application for visas. Its 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 Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Relevantly for this proceeding, the Act provides:
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.
...
BACKGROUND FACTS
The applicants’ claims for protection were made in an arrival interview conducted on 26 June 2013, in undated statements written by each applicant and in an interview conducted by the Department on 16 August 2017.
Those claims were summarised by the Minister in his written submissions as follows:
11. The first applicant claimed to fear harm in Sri Lanka from the Criminal Investigation Department (CID) and the Sri Lankan Army (SLA) on account of his family being targeted for suspected links with the Liberation Tigers of Tamil Eelam (LTTE), and he claimed to fear harm from the Sri Lankan government because he departed the country illegally. In support of those claims, the first applicant recounted the following events:
(a) his brother was killed by the SLA in 1991 because they suspected he was an LTTE soldier;
(b) like other civilians in his home area, he and his family were caught in the middle of a conflict between the LTTE and the SLA in 2009;
(c) his home area …was LTTE controlled and they were displaced and forced to live in a tent community in Mullaithivu. During that time, he refused the approaches of the LTTE to join the group;
(d) a shell blast on 20 March 2009 killed his wife and injured one of his daughters;
(e) in May 2009 he and his family were taken to, and detained in, a refugee camp in Vavuniya until the end of 2011;
(f) the SLA suspected his wife died as an LTTE soldier and, as a result, he was taken for questioning and threatened about her involvement on two occasions, first by the SLA and then by the CID. On both occasions he was threatened, interrogated and told he would be separated from his children and put in jail if he did not tell the truth;
(g) during 2012, on about five or six occasions the SLA approached and questioned his children about their mother's involvement in the LTTE and were threatened that the SLA would take their father away and hurt him if they did not give the answers the SLA wanted; and
(h) since leaving Sri Lanka, the CID and the SLA have approached his relatives many times and have asked about the whereabouts of him and his children. His remaining children in Sri Lanka live at their grandmother's house …
12.The second applicant relied on the protection claims advanced by her father. In addition, she stated that people visited the family house in 2012 and asked her older sister whether her mother was part of the LTTE, to which the sister said no. The second applicant stated that she was not sure what else was said and was too young to recall anything that occurred in Sri Lanka.
I adopt that summary.
Following the referral of the matter to the IAA for review, the applicants’ legal representative provided written submissions dated 24 and 28 December 2017 together with a 2016 Committee Against Torture report, a 2017 United Nations report, an Austrian Red Cross report and a UK Home Office report. Amongst the material supplied was new information which the IAA declined to consider, referring to s.473DD(b) of the Act.
IAA DECISION
After discussing the claims made by the applicants and the evidence before it, the IAA was not satisfied that the applicants are persons to whom Australia has protection obligations under s.36(2) of the Act. Relevantly, the IAA did not accept that any of the applicants’ family members had been “LTTE or suspected LTTE” and so, on the basis that the applicants were consequently of no particular interest to the Sri Lankan authorities, rejected their claims to fear persecution on that account. Other claims and allegations considered by the IAA are not relevant to the matters in issue in this proceeding.
The basis of the IAA’s conclusion that the applicants were of no interest to the Sri Lankan authorities for actual or perceived association with the LTTE was based on its rejection of the Applicant’s allegation that he had been interrogated in 2012 and 2013 in relation to his wife’s involvement in the LTTE. The IAA found that the Applicant’s claim to have been twice interrogated in relation to that issue was not credible on the basis that:
(a)if the authorities had suspected that the Applicant’s wife had been an LTTE soldier prior to her death in March 2009:
(i)they would have taken the opportunity to question him while he lived in the refugee camp after May 2009, but he did not claim that they had; and
(ii)the Applicant and members of his family would probably have been sent to a rehabilitation camp at the end of the war, as was anyone with suspected links to the LTTE, but none of them was. The IAA did not accept the Applicant’s explanation that he was not sent to such a camp because he had children;
(b)the Applicant maintained that he and his family were not LTTE;
(c)the IAA accepted the Applicant’s explanation that he and his family had not fled from the LTTE-controlled area where they lived because of the dangers that that would pose to their children, rather than because his wife had been involved with the LTTE; and
(d)it was not credible that the authorities would question the Applicant about his wife three years after the war had ended, and she was dead, if they had not done so when he was in the refugee camp three years earlier.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicants alleged:
1.The Authority committed jurisdictional error by making a finding of fact that was not based on evidence.
PARTICULARS
a.At paragraph 25, the Authority did not accept the applicant's explanation that he was not sent to a rehabilitation camp because he had children.
b.It was noted that "anyone with any suspected links [w]as sent to rehabilitation camps".
c.This finding above was made on the basis of an assumption rather than any solid country or personal information in front of the Authority.
…
A second ground was abandoned.
Ground 1
Paragraph 25 of the IAA’s reasons said:
Secondly, as the country information indicates, many people were caught in the war in LTTE controlled areas and displaced into refugee camps at the end of the war. If they were suspected LTTE or of any LTTE links I consider it is highly likely they would have been questioned and sent to a rehabilitation camp. No-one of the family were rounded up and sent to rehabilitation camps, which strongly indicates that they were not of adverse interest. I do not accept that the applicant’s explanation that they may not have sent him because he had children. Having listened to the interview, I consider the applicant added this as an afterthought. Further, I do not accept that authorities at the end of the war discriminated in that way. Rather anyone with any suspected links was sent to rehabilitation camps.
(emphasis added)
The applicants submitted that the IAA’s finding that the Applicant was not sent to a rehabilitation camp at the end of the war was a key ingredient in its conclusion that he had not been at risk of persecution in Sri Lanka for perceived connections to the LTTE. They further submitted that the IAA’s conclusion that the Applicant would probably have been sent to a rehabilitation camp at the end of the war if he had been suspected of having such connections was affected by error because it lacked evidential support and was no more than an assumption. They argued that there was a realistic possibility that if that alleged error had not occurred, the outcome of the review could have been different: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at 614 [7], 615 [14].
The applicants’ case depends on there having been no evidence for the finding that the Applicant would probably have been sent to a rehabilitation camp at the end of the war if he had been suspected of having LTTE connections. But there was such evidence and it can be found reproduced in the Court Book at pp.158, 224, 298-300 and 449. The IAA probably went too far in saying that:
anyone with any suspected links was sent to rehabilitation camps
but the evidence included the statements that:
Former LTTE combatants in Sri Lanka undergo rehabilitation to prepare them for civilian life
and
Towards the end of the conflict, a large number of LTTE members were arrested and detained by Government security forces following their surrender or capture. The majority of those arrested were sent to Government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system ....
Other evidence indicated thousands of persons had passed through the rehabilitation camps and that detention in such camps could be arbitrary.
It was open on that evidence for the IAA to conclude that it was “highly likely” that the applicants would have been placed in a rehabilitation camp if they had been suspected of LTTE connections. That being so, it was also rationally open to the IAA to conclude that not being so detained indicated that such suspicion did not attach to the applicants and to the Applicant in particular.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 26 August 2024
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