BJQ16 v Minister for Immigration
[2018] FCCA 1589
•22 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJQ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1589 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the applicant’s fear of harm in Sri Lanka – applicant fails to identify any jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), Part 7AA, ss.46A, 422B, 473GA,473GB |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 BVMJ6 v Minister for Immigration and Border Protection [2016] FCCA 3183 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 |
| Applicant: | BJQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1437 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 8 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms N. Laing |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 31 May 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1437 of 2016
| BJQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Sri Lanka aged 35 years, having been born on 5 October 1982.
By Amended Application filed in this Court on 31 May 2017 he seeks to quash and have redetermined a decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 19 May 2016 (Decision Record) under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 22 April 2016 refusing to grant to him a Safe Haven Enterprise (Subclass 790) visa (Protection visa).
Background
The Applicant left Sri Lanka on 10 August 2012 by boat and arrived in Australia on 27 August 2012 via Cocos Island and Christmas Island as an unauthorised maritime arrival.
On a date no later 10 September 2015 the Minister under s.46A(2) of the Act lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making his application for the Protection visa on 25 September 2015.
The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:
a)who entered Australia after 13 August 2012 but before 1 January 2014;
b)who was not taken to a regional processing country;
c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and
d)who made, as he did, a valid application for a Protection visa.
Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the adverse decision of the Delegate refusing to grant to the Applicant a Protection visa in this case.
I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 (AMA16) per Griffiths J at [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement in AMA16 of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ.
Claims for Protection
In his Protection visa application and in his Statutory Declaration of 22 September 2015 which formed part of his Protection visa application the Applicant made the following claims:
a)he is a Sri Lankan citizen and was born in the Jaffna district of the Northern Province, Sri Lanka and is an ethnic Sri Lankan Tamil and a Hindu;
b)the Applicant’s family fled to India during the period 1988 – 1991 but then returned to Sri Lanka and the Applicant lived with his family in Colombo from 1991 – 2008. The Applicant expanded upon this in material submitted to the Delegate, stating that his father set up a jewellery shop in Colombo and that he worked there as a jeweller, and that he was treated harshly in Colombo and harassed by the Sri Lankan authorities because of his Tamil ethnicity;
c)the Applicant was not targeted by any government group prior to May 2008. He was married, in an arranged marriage, to the daughter of a wealthy businessman on 14 May 2008 in Trincomalee, Sri Lanka. On 27 May 2008 the Applicant’s brother-in-law was abducted by an unknown group, and about one week later his father-in-law was contacted by the abductors who demanded a ransom of 20 lakhs rupees (approximately AUD $40,000) for the return of the brother-in-law, but the father-in-law could not produce the full ransom and the brother-in-law remains missing. The family believed that the brother-in-law had been abducted by the members of paramilitary groups which were active in the area;
d)the Applicant and his wife have two daughters born respectively in 2009 and 2011;
e)at around the end of January 2012 the Applicant received a telephone call from an unknown caller who spoke Tamil and did not identify himself. The caller demanded 10 lakhs rupees (approximately AUD $20,000) and threatened to kill the Applicant if he were not to provide the money, or if he approached the police or lodged a complaint;
f)about ten days following this event the Applicant received a further telephone call from a Tamil man who the Applicant presumed was the same man who had threatened him earlier, and thereafter received further telephone calls from unknown callers demanding money and threatening to kill him. The Applicant believes the callers to be from a Tamil paramilitary group which works closely with the Sri Lankan government. He believes this group targets people perceived to be wealthy business owners in his area like him;
g)since arriving in Australia the Applicant has been told by his wife that unknown persons have come searching for him several times and he believes these persons to be members of paramilitary groups which work closely with the Sri Lankan government. The Applicant claimed that he was targeted because he was perceived as a wealthy Tamil business person and he feared being killed by the members of these paramilitary groups;
h)it was not possible for the Applicant to relocate because the Tamil paramilitary groups who are closely linked to the Sri Lankan forces, would find him anywhere; and
i)the Applicant also claimed fear that on his return to Sri Lanka he would be detained by the authorities for having fled Sri Lanka illegally, for having claimed asylum in Australia and because he would be perceived to be a supporter or member of the Liberation Tigers of Tamil Eelam.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 1 December 2015 with his registered migration agent when he made the following additional claims:
a)his father-in-law was abducted prior to the Applicant marrying his wife;
b)between 2008 and 2012 the Applicant went into hiding to avoid being harmed; and
c)the Applicant’s mother-in-law together with some other people formed a group that made complaint to the human rights bodies and the government because of their missing relatives.
In the result, the Delegate in his Decision Record found that there was no real chance that the Applicant would be subjected to harm should he return to Sri Lanka because he could relocate from Trincomalee to Mannar which was about 180 kilometres away from Trincomalee, or to Colombo which was about 250 kilometres away from Trincomalee. The Delegate also found that there was no real chance that the Applicant would be persecuted on return to Sri Lanka for the reason of his Tamil ethnicity, the son-in-law of his civil society activist mother-in-law, a person who illegally left Sri Lanka and a failed asylum seeker.
Accordingly, the Delegate was not satisfied that the Applicant was a refugee as defined in s.5H of the Act for the purposes of the Refugees Convention criterion. On the same factual findings, the Delegate found that the Applicant would not face a real risk of significant harm if he returned to Sri Lanka for the purposes of the complementary protection criterion and the Delegate refused to grant a Protection visa to the Applicant.
Decision of IAA
On 26 April 2016 the Minister referred the Delegate’s refusal of a Protection visa to the IAA.
At [4] of its Decision Record the IAA summarized the Applicant’s claims of fear of being harmed as made in his Protection visa application and before the Delegate.
At [8] – [34] of its Decision Record the IAA recorded its consideration of the Applicant’s claims under the headings of:
a)Threats and extortion from paramilitary groups working with the Sri Lankan government;
b)Mother in law’s protest activities;
c)Tamil ethnicity;
d)Harm on the basis of imputed political opinion as an asylum seeker and illegal departee from Sri Lanka; and
e)Illegal departure from Sri Lanka.
The IAA rejected the Applicant’s claims under the Refugees Convention criterion that there was a real chance that he would suffer harm in relation to the matters comprised in the headings at [15(b) – (e)] above. For the same reasons the IAA found that in relation to the same matters the Applicant did not face a real risk of significant harm under the complementary protection criterion if he returned to Sri Lanka.
However, at [11] of its Decision Record the IAA accepted in relation to [15(a)] above that if the Applicant returned to Trincomalee there was a real chance that he might again face threats and extortion demands from paramilitary groups for the purpose of the Refugees Convention criterion.
Nevertheless, the IAA did not accept the Applicant’s claims that he could not relocate anywhere within Sri Lanka. The IAA found that he could relocate to Colombo where he had lived for approximately 17 years, or to his parent’s current home at Mannar. The IAA reasoned thus:
[12]The applicant claims he is unable to relocate because the paramilitary groups are well connected and linked to the Sri Lankan forces. He claims that the whole of Sri Lanka is controlled by such groups so wherever he goes he will be targeted. He says people are aware of his status and that his father in law is rich but old, and so he, as the younger man in the family, will be targeted wherever he does business. He says the extortionists will be angry with him and target him because he was not in Sri Lanka for a long period of time.
[13]I do not accept these claims. I am mindful of UNHCR guidance that internal relocation is not available in Sri Lanka where the feared harm emanates from elements associated with the state. However, while I accept that through their official connections, the group or groups which extorted the applicant and the family would have the resources to locate him in a different area of the country, I do not accept they would have the motivation to do so. I have taken into account that unknown persons, who may have been the extortionists, came in search of the applicant several times after his departure. However, given the lapse of time between the various incidents and the fact that the applicant was able to avoid harm for approximately six months despite not meeting the extortionists' demands, I find that the persons who threatened the applicant did not have an interest in the family or the applicant to such a level that they would pursue him beyond the immediate area. Rather, the business was one of many in the area that they targeted for money. I am not satisfied that these groups have an interest in the applicant such that they would attempt to locate him in a different area of Sri Lanka. Furthermore, the applicant's father is also a goldsmith. The applicant does not claim that his family experienced such problems during the approximately 17 years that he lived in Colombo, nor in his parents' current home of Mannar. While I accept that abductions and extortions also occur in Colombo and Mannar, including of Tamil businessmen, I find the harm facing the applicant to be localised and the prospect of the applicant being targeted for extortion or otherwise harmed by paramilitary groups in Colombo or Mannar to be remote. I find that there is not a real chance that the applicant will be harmed by paramilitary groups or other extortionists in Colombo or Mannar, and so am not satisfied that the real chance of harm relates to all areas of the receiving country, as required by s.5J(1)(c).
(footnotes omitted)
The IAA at [43] of its Decision Record in relation to the complementary protection criterion:
a)accepted that there was a real risk that the Applicant would be harmed by paramilitary groups or other extortionists in Trincomalee; and
found that there was not a real risk that the Applicant would face significant harm in Mannar or Colombo and at [44] of its Decision Record stated as follows:
[44]… Based on his evidence at the SHEV interview, I find that the applicant has relatives in Colombo and that he lived there from 1991 until his marriage in 2008. Furthermore, the applicant's parents are in Mannar. The applicant is a young man with skills and experience in jewellery making. I do not accept that the treatment I have found the applicant will experience on return to Sri lanka, including being processed at the airport, held on remand and fined, would make relocation unreasonable. I am satisfied that in the applicant's particular circumstances, it would be reasonable for him to relocate with his family to Colombo, where he lived for a long period of his life and has relatives, or to Mannar, where he has close family.
The IAA therefore affirmed the Delegate’s decision not to grant a Protection visa to the Applicant.
Ground of Attack on IAA Decision in this Court
The Ground relied upon by the Applicant was verbatim as follows:
1. The IAA made a jurisdictional error in assessing reasonableness of the applicant relocating if returned to Sri Lanka under s36(2B) of the Act.
Particulars
a. At paragraph 41 the IAA accepted there was a real risk that the applicant will face harm in Trincomalee from paramilitary groups, potentially working in connection with the authorities, or other persons who seek to extort money from him;
b. The IAA concluded in paragraph that the applicant did not face harm in Mannar or Colombo for the following reasons:
i. Given the extortionists' lack of personal interest in the applicant or the family in Mannar and Colombo;
ii. The applicant's ability to avoid harm for approximately six months prior to his departure despite not meeting the demands; and
iii. The past situation of the applicant and his father in Colombo and his father's situation in Mannar.
c. The IAA failed to consider the applicant's claim that the paramilitary groups are able to find him wherever he moved and whether there was effective state protection, especially as the paramilitary groups are connected to the Sri Lankan authorities. His relatives and close family in Colombo and Mannar may not be able to provide the applicant with any protection.
Consideration
In my view the Ground fails to establish that the decision of the IAA is affected by jurisdictional error for the following reasons.
First, the IAA in its Decision Record did consider the Applicant’s claim that “paramilitary groups are connected to the Sri Lankan authorities” and “are able to find him wherever he moved” in Sri Lanka. At bullet point 5 to [4] of its Decision Record the IAA specifically recorded the Applicant’s claim that members of a Tamil military group “work closely with the government”. At [8] and [10] of its Decision Record the IAA again expressly referred to the Applicant’s claims of links and connections between the paramilitary groups and the Sri Lankan authorities. Then at [12] of its Decision Record (reproduced in [18] above) the IAA recorded the Applicant’s claim that he could not relocate in Sri Lanka “because the paramilitary groups are well connected and linked to the Sri Lankan forces”. However, for the reasons given by it at [13] of its Decision Record the IAA found that there was not a real chance that he would be harmed by paramilitary groups or other extortionists in Colombo or Mannar, and at [43] that there was not a real risk of significant harm to him in either of those places, concluding at [44] that “it would be reasonable for him to relocate with his family to Colombo, where he lived for a long period of his life and had relatives, or to Mannar, where he has close family”.
Second, it followed that as the IAA had found that the Applicant did not face any kind of risk in Colombo or Mannar, there was no occasion for the IAA to go on to consider (as the Ground asserted it should have) whether there was “effective state protection” for the Applicant in Sri Lanka. As Rares J said in SZQGX v Minister for Immigration [2012] FCA 306 at [7] – [9]:
[7]The trial judge rejected the same argument that I have rejected in SZQKC [2012] FCA 249 based on the reasons of Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 and followed what Sundberg J had held in Siaw v Minister for Immigration [2001] FCA 953.
[8]The appellant accepted that his argument in this case was substantively the same argument as put by the appellant in SZQKC [2012] FCA 249 which was argued consecutively this morning.
[9]For the reasons that I gave there, in my opinion, this appeal must fail. Once the reviewer came to the conclusion that the appellant had no well founded fear of persecution were he to return to the Jaghori district or the Hazarajat area, it was not necessary for him then to embark upon a consideration of whether the absence of that fear had a relation to the ability of the State of Afghanistan to provide particular protection in the circumstances.
(emphasis added)
See also the decision of North J in Razai v Minister for Immigration and Citizenship [2012] FCA 394 at [33] – [38].
A Final Matter
The Minister as a model litigant disclosed that a delegate of the Minister issued to the Senior Reviewer of the IAA a Certificate purportedly pursuant to s.473GB(5) of the Act (s.473GB Certificate). The s.473GB Certificate stated that it applied to a document or information contained in a named PDF Portfolio and gave as the reason for non-disclosure that it would be contrary to the public interest because any documents as described would be a “Departmental working document”.
In my view, the principles articulated by Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 (MZAFZ) and Kenny, Perram and Mortimer JJ in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 have no application to reviews conducted by the IAA under Part 7AA of the Act. A similar view was taken by Judge Jarrett in this Court in BVM16 v Minister for Immigration and Border Protection [2016] FCCA 3183 at [22] – [27].
Section 473DA(l) of the Act provides that Division 3 of Part 7AA (ss.473DA-473DF), s.473GA and s.473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the [IAA]”. Unlike s.422B(2), which does not “cover off or exclude” the procedural fairness obligations listed by Beach J in MZAFZ at 14 – 15 [60] (and at 12 – 13 [50]), s.473DA(1) does, leaving no gaps for the common law rules of procedural fairness to fill.
Further, s.473DE(1) of the Act only compels the IAA to “give to the referred applicant particulars of any new information”, if that information “has been, or is to be, considered by the [IAA] under section 473DD” and “would be the reason, or a part of the reason, for affirming the fast track reviewable decision”. The information covered by the s.473GB Certificate, however, is not “new information” as defined in s.473DC(l); rather, it is information that was before the Minister.
Conclusion
The Applicant has failed to establish that the decision of the IAA is affected by jurisdictional error and the Application filed in this Court must be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 22 June 2018
0
11
2