Bji18 v Minister for Home Affairs

[2018] FCCA 2108

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJI18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2108

Catchwords:
MIGRATION – Application to quash decision of Immigration Assessment Authority – where Applicant subject to part 7AA of the Act – where IAA made decision pursuant to s. 473CC – where IAA considered all relevant factors – where procedural fairness was given – where no jurisdictional error was established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 473CC, 473DA, 473DC

Cases cited:

BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Applicant: BJI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 749 of 2018

Judgment of: Judge Egan

Hearing date: 30 July 2018 & 2 August 2018

Date of Last Submission: 2 August 2018

Delivered at: Sydney

Delivered on: 2 August 2018

REPRESENTATION

Solicitors for the Applicant: Self represented

Counsel for the Respondents: Mr Kay Hoyle

Solicitors for the Respondents: Minter Ellison Lawyers

THE COURT ORDERS ON A FINAL BASIS:

1. That the application be dismissed.

2. That the applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 749 of 2018

BJI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a Sri Lankan citizen.  He arrived in Australia on 10 September 2012 by boat.  He applied for a Safe Haven Enterprise Visa (SHEV) on 8 July 2016. 

2. The applicant met the requirements of a “fast track applicant” pursuant to the provisions of section 5(1)(a)(i)-(iii) of the Migration Act1958 (Cth) (“the Act”) and, accordingly, his application was made subject to and governed by part 7AA of the Act.

3. The applicant has made application for review of a decision of the Immigration Assessment Authority (“IAA”) dated 21 February 2018 whereby the IAA had affirmed a decision of a delegate of the first respondent, such decision having been made by the delegate on 19 April 2017. 

4. The delegate’s decision was that the applicant was not a person in respect of whom Australia had protection obligations owed to him pursuant to the provisions of section 36 of the Act.

5. The IAA’s decision was made pursuant to section 473CC of the Act. That decision was a migration decision capable of review.

6. There are four grounds on which the applicant seeks to challenge the decision of the IAA.  The first two grounds are as set out in the application for review filed on 12 April 2018. 

7. The third and fourth grounds for review are as set out in an amended application for which leave to read and file was granted by order of the court on 30 July 2018.  The grounds in that further amended application though expressed to be ground 1 and ground 2, respectively, are conveniently to be referred to as grounds 3 and 4, respectively.

Ground 1

1. The first ground was that the IAA failed to consider relevant considerations and/or failed to engage in genuine and realistic consideration of the applicant’s claims.  Particulars of such ground were provided.  They included that the IAA failed to consider the applicant’s claim of sexual violence. 

2. It was asserted that the IAA should have considered and assessed whether the applicant would face serious or significant harm on the basis of his claim that he would face sexual assault if returned to Sri Lanka.  It was alleged that the IAA had thereby committed a legal error. 

3. As to the claim related to the chance of him being subjected to sexual violence should he return to Sri Lanka, the applicant mentioned the issue of sexual violence as part of the country information.  The applicant suggested that, based on country information, Tamils with an imputed association to the LTTE were at risk of being detained, tortured and sexually violated by security forces.  It was also suggested that part of the country information that was before the delegate, and referred to in the 23 May 2017 submission, spoke of sexual violence in the context of harassment of the local Tamil population and of perceived LTTE sympathisers. 

4. The applicant also referred to his claims that he feared being sexually assaulted in prison, as a result of his illegal departure from Sri Lanka, if he was returned there. 

5. By his submission of 14 November 2017, the applicant claimed that Sri Lankan authorities continued to suspect that young Tamil males are LTTE sympathisers, and further, that the authorities continue to target them and inflict torture and sexual violence upon them.  The submission referred to country information dealing with sexual violence in Sri Lanka and reference was made to the court book at pages 374 - 375 in that regard.

6. The claims by the applicant were dealt with by the IAA.  Firstly, the IAA accepted that there were, in fact, credible reports of torture, rape and sexual abuse by the security forces, and that torture was common practice by the CID in relation to criminal investigations.  It so found at paragraphs 43 and 45 of its reasons.  However, the IAA did not accept the proposition, based upon the applicant’s own claims and relevant country information, that the applicant was at risk (in the sense of being exposed to a real chance of harm) by reason of his Tamil origins or because of any imputed LTTE association. 

7. Indeed, the IAA found that that would not be the case at paragraphs 33 – 42 inclusive and paragraphs 46 – 51 inclusive of its reasons.  The IAA addressed the matters raised by the applicant in relation to the risk of sexual violence but was not satisfied that there was such a risk. 

8. As to the second claim the IAA did not accept that the applicant faced imprisonment by reason of being an illegal returnee based upon country information.  The applicant’s expressed fear of sexual violence was predicated upon him being imprisoned as a result of his being returned to Sri Lanka, but the IAA found that there was no likelihood of that occurring. 

9. The IAA countenanced that upon return to Sri Lanka, the applicant might be detained/imprisoned for “a few days” while waiting for a court appearance, but that such a brief period of detention would not constitute detention of the type or extent such as to expose the applicant to the level of threat or harm claimed to be likely to be suffered by him upon his return.

10. The IAA dealt with the issue of sexual violence properly,  considering such claim in the context of the broader propositions of detention advanced by the applicant.  In those circumstances, ground 1 has not been established and is dismissed. 

Ground 2

1. By Ground 2, the applicant asserts that the IAA failed to provide adequate procedural fairness to him.  The particulars of such ground extend from a claim that the IAA failed to advise the applicant of an issue or concern before forming its own view.  Reference was made by the applicant in the particulars of that ground to the decision of the Department of Home Affairs. 

2. It was claimed that there was no evidence in the decision of the department to suggest that the Department of Home Affairs discussed with the applicant, or made reference in its decision, as to whether the applicant or his relatives had the means to provide a financial guarantee for him. 

3. Section 473DA of the Act appears under the heading “Exhaustive statement of natural justice hearing rule” and is as follows:

   (1)  This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

   (2)  To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65

4. It is apparent that the section purports to record that division 3 of the Act constitutes an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. The court was helpfully provided by Mr Kay Hoyle with further submissions on the question as to the extent of any underlying application of the common law rules of natural justice in the context of a section 473CC review by the Immigration Assessment Authority of a delegate’s decision.

5. The court was helpfully provided by Mr Kay Hoyle of Counsel with a note which referred to a number of authorities on point.  One such authority referred to in the note provided by counsel for the first respondent was a decision of Thawley J in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365.

6. When considering whether, and in what circumstances, the IAA might have a decision overturned based on unreasonableness considerations, Thawley J identified a pathway for the purpose of considering that question.  Under the heading “Whether legal reasonableness established” Thawley J, at paragraphs 53 – 68 of his Honour’s reasons, set out the principles to be followed. 

7. At paragraph 60 his Honour was dealing with a submission made by the Minister in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 where His Honour recorded that it had been submitted on behalf of the Minister in that case that as section 473DC imposed no positive duty on the authority to consider exercising its discretionary power to get documents or information, legal unreasonableness could only be said to arise in circumstances where the authority had indeed considered whether to exercise the power, and had decided to exercise it in a manner adverse to an affected party.

8. His Honour recorded that such submission was based upon the proposition that given the primary judge’s finding in that case that the authority had not considered exercising its discretion, no legal unreasonableness could flow from that failure. 

9. In relation to the submissions of the Minister in that regard, His Honour at paragraph 60 and 61 of his judgment in BCQ16 v Minister for Immigration and Border Protection (2018) FCA 365 said as follows: [60] - In rejecting this submission, the Full Court held at [82]-[83]:

   82.         Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

   83.         As in Li, at [82], it is not apparent how the conclusion not to consider the exercise of the discretionary power was reached in the present case, having regard to the facts and to the statutory purpose for which the discretion to get new information was directed.

   [61] - CRY16 was a case in which the primary judge had concluded, and the parties did not dispute on appeal, that the Authority had failed to consider exercising the relevant statutory discretion. No such inference or finding exists in the present case, the FCCA not having been asked to consider the issue. As noted above, the appellant has not discharged its onus of establishing that the discretion was not considered. Nevertheless, as noted above, I proceed on the basis that the discretion must also be exercised in a legally unreasonable manner.

10. It is clear from the above, that the IAA must act reasonably when carrying out a review pursuant to section 473CC of the Act, and otherwise in respect of its conduct of the review pursuant to division 3 of the Act.

11. The court was helpfully taken by counsel for the first respondent to the evidence relied upon by the delegate, when finding as they did, at page 186 of the court book as follows: 

    Once the returnee has satisfied the authorities as to their identity and that there are no outstanding criminal or security matters they are released.  If they had left Sri Lanka illegally by boat, they may be held in remand until the next sitting of the court in Megombo, after which they are released on bail, or on their own recognisance, pending further action.  The usual penalty for an illegal departure is a fine and I am not aware of reports of anyone being jailed for departing Sri Lanka illegally.  Such penalties are laws of general application, used for legitimate state objectives of controlling the country’s border and to combat people smuggling.  The screening process is similar for all persons returning to Sri Lanka voluntarily or by escort on temporary travel documents, regardless of ethnicity.

12. The country information upon which such finding was based was sent to the applicant by email dated 11 May 2017,  such email appearing on page 220 of the court book.  The country information first referred to was a DFAT country information report in relation to Sri Lanka dated 18 December 2015. 

13. On page 249 and 250 of the court book, there appears reference to the question of the granting of bail and the giving of either personal or family surety.  Reference is also made, in that regard, to family members acting as guarantors.  Such paragraph is as follows:

    5.33 FAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings. The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures (see ‘Facilitators and organisers below).

14. The next country information to which the delegate had recourse is found in a DFAT country information report in respect of Sri Lanka dated 24 January 2018 which appears at page 287 of the court book.  Paragraph 5.22 of such report reads as follows:

    5.22 According to the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards departing illegally in the future. Fine amounts vary on a case-by-case basis (but can be up to 200,000 Sri Lankan rupees / AUD 2,000) and can be paid by instalment. If a person pleads guilty, they will be fined (which they can pay by instalment) and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor. Where a guarantor is required, returnees may sometimes need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to the bail, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a people smuggling venture. There is no general requirement to report to police or police stations between hearings.

15. I accept the submission made on behalf of the first respondent that insofar as the IAA made findings in relation to the matters raised in ground 2 of the application for review, the authority properly addressed all questions and issues in that regard. 

16. Additionally, it was noted in the reasons of the IAA that the delegate had access to the relevant country information last referred to, and that the question of bail had been considered.  The IAA acted appropriately in that regard.

17. Additionally, the issue of bail was not a crucial link in the IAAs chain of reasoning in circumstances where the IAA made an alternative finding that the relevant Sri Lankan legislation relating to detention upon return to that country was a law of general application.  In all of the circumstances, therefore, the applicant has not made out ground 2 and such ground is dismissed. 

Ground 3

1. Ground 3 is a claim that the IAA had made a jurisdictional error by making an important finding.  Particulars of that finding were that the IAA did conclude that because of a suspected connection between the applicant’s former boss “R” and the LTTE, the IAA ought to have made a finding that the applicant would be targeted by reason of such LTTE connection. 

2. Whilst the IAA had made findings accepting that the applicant had worked for R and had been questioned by the SLA and the CID, the IAA, at paragraphs 25 – 29 of its decision, rejected aspects of the applicant’s evidence which it did not find credible. 

3. By reason of such findings, as well as its acceptance of the country information referred to earlier relating to detention upon return, the IAA rejected the applicant’s claims that he would suffer harm in respect of any imputed association with the LTT.  Those findings were open to the IAA, and there has been no jurisdictional error demonstrated in relation to its treatment of them.  It is, therefore, a ground which has not been made out and ground 3 is dismissed. 

Ground 4

1. Ground 4 falls into the same category as ground 3 in terms of the claims that the applicant will be threatened and otherwise harmed if he were to be returned to Sri Lanka.  For the same reasons as set out in respect of ground 3, such claims had not been made out and have not demonstrated any jurisdictional error on the part of the authority.  In those circumstances ground 4 has not been made out and is dismissed.

2. For those reasons the application for review filed on behalf of the applicant is dismissed. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 17 August 2018

Correction

Applicant pseudonym changed from BJL18 to BJI18