BKB17 v Minister for Immigration

[2017] FCCA 2852

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKB17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2852

Catchwords:

MIGRATION – Whether the Authority’s decision was unreasonable – where applicant failed to attend interview – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant: BKB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1001 of 2017

Judgment of: Judge Street

Hearing date: 21 November 2017

Date of Last Submission: 21 November 2017

Delivered at: Sydney

Delivered on: 21 November 2017

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco on a direct access basis

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. Grant leave to the applicant to rely upon the amended application which the Court has initialled and dated and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1001 of 2017

BKB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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”) under Part 7AA made on 6 March 2017 affirming a decision of the delegate not to grant the applicant an XE 790 Safe Haven Enterprise visa.

Claims for protection

1. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant arrived in Australia on 9 September 2012. The applicant applied for the Safe Haven Enterprise visa on 10 May 2016 on the basis he would be harmed by the Sri Lankan Army and Criminal Investigation Department (“CID”) as his father was a member of the LTTE between 1985 and 1987 and a well-known supporter of the Tamil National Alliance (“TNA”). The applicant claimed that after the election in 2012, his father received threats from the opposition party, who had lost. The applicant claimed his cousin was a member of the LTTE who was shot by the CID.

2. The applicant claimed he had been beaten by members of the navy whilst he was fishing for no reason except for being a Tamil, once in 2009, twice in 2010, and three times in 2012. The applicant claimed that on 28 July 2012, two CID officers came to his house asking for his father and threatened to take the applicant and his brother away. The applicant claimed that these events led to the applicant’s departure. The applicant claimed that since leaving Sri Lanka, the CID had come to his house three or four times and asked about him.

The delegate’s decision

1. The delegate found the applicant was a Hindu Tamil from the Eastern Province of Sri Lanka. The delegate made adverse findings in relation to part of the applicant’s claims, identifying reasons in support of those adverse findings. The delegate rejected the applicant’s claim that his father was a wealthy man and a TNA supporter. The delegate rejected that after the election in 2012 the applicant’s father received threats from the opposing party who lost against the TNA in the election. The delegate rejected that in July 2012 the CID visited the applicant’s home and threatened to take the applicant and his brother. The delegate rejected the claim that the applicant’s cousin was involved in the TNA and was arrested and imprisoned for 19 months because of this. The delegate found the applicant failed to meet the criteria for the grant of a visa under the Act.

The Authority’s decision

1. On 18 January 2017, the Authority wrote to the applicant, explaining that the matter had been referred to the Authority for review. The letter explained that there were limited circumstances in which new information could be received. The letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions. No such documents were provided.

Information before the Authority

1. The Authority identified the background to the visa application. The Authority identified having regard to the material referred to it under s 473CB of the Act. The Authority noted that the applicant did not attend the scheduled interview with the Department on 9 December 2016 or a rescheduled interview on 15 December 2016.

2. The Authority decided, having regard to the information already provided by the applicant in support of his claims for protection on arrival and more recently, which included a statement of claim, as part of his application for a Safe Haven Enterprise visa, the Authority was satisfied the applicant had adequate opportunity to present his case. It was in those circumstances the Authority found, having regard to the statutory regime and the circumstances of this case, the Authority was not satisfied that an interview with the applicant was required or necessary. The Authority identified having regard to country information, being a DFAT report of 24 January 2017, consistent with s 473DD(a).

The Authority’s findings

1. The Authority identified the applicant’s claims and evidence. The Authority set out the applicable law in an attachment incorporating the Authority’s reasons.

Refugee assessment

1. The Authority accepted that the applicant had encountered some harassment and ill-treatment, but found it did not amount to serious harm. The Authority was not satisfied the harassment affected the applicant’s capacity to subsist. The Authority was not satisfied that the harassment caused serious harm to the applicant. The Authority was not satisfied that if the applicant were to resume fishing on return to Sri Lanka and experienced similar harassment from the navy, such treatment would amount to serious harm.

2. The Authority was not satisfied the applicant will face a real chance of serious harm from authorities on the basis of his Tamil ethnicity and/or because he originates from Trincomalee in the Eastern Province. The Authority was not satisfied that the applicant’s uncle’s arrests were relevant and gave no weight to that issue. The Authority was not satisfied that the shooting of the applicant’s cousin gives rise to a real chance of serious harm for the applicant.

3. The Authority found it implausible that the CID would attend the applicant’s house on 28 July 2012 for the purpose of investigating ex-LTTE officers. The Authority noted that the applicant does not claim any previous visits by the CID to his home following his family’s return from Tamil Nadu in 2008 in an account of the applicant’s evidence. The Authority accepted that the father had been required to report regularly to authorities since his release from prison. The Authority was not satisfied the visit by the CID officers to the applicant’s home on 28 July 2012 occurred as the applicant claimed.

4. The Authority was not satisfied the CID visited the applicant’s home three to four times and asked about the applicant after the applicant departed Sri Lanka in August 2012. The Authority found the applicant, either on his own or as a result of his relationship with his father or other family members, did not hold a profile for imputed LTTE association or support for the TNA that would attract the adverse attention of authorities. The Authority was not satisfied the applicant will face real chances of serious harm from the authorities on the basis of his father’s prior association with the LTTE or his claimed support of the TNA.

5. The Authority made reference to the applicant’s claim concerning the treatment of his cousin’s husband. The Authority considered the applicant’s concerns about harm on that basis to be speculative and was not satisfied the applicant’s relationship with his cousin’s husband would give rise to any chance of serious harm.

6. The Authority referred to the applicant returning as a failed asylum seeker and illegal departee. The Authority took into account that the applicant may be charged under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“I&E Act”). The Authority took into account the lack of resources and over-crowding and poor sanitary conditions where the applicant may be detained. The Authority was not satisfied a short period of detention would amount to serious harm.

7. The Authority referred to the fine being imposed and was not satisfied that the fine or financial penalty would amount to economic hardship giving rise to serious harm. The Authority found the procedures under the I&E Act are, on their face, not applied in a discriminatory manner. The Authority took into account the short period of detention and the fine and did not accept that the treatment, separately or taken together, would amount to serious harm. The Authority was not satisfied the applicant would face a real chance of harm on the basis of being a returned asylum seeker and/or for being an illegal departee.

8. The Authority considered the applicant’s claims cumulatively, taking into his account his profile as a male Hindu Tamil from the Eastern Province, his father as, formerly, a member of the LTTE and a well-known supporter of the TNA and that the applicant would be returning as a failed asylum seeker who had departed the country illegally, and found that this did not give rise to a real chance of serious harm.

9. The Authority found the applicant failed to meet the definition of a refugee in s 5H(1) and failed to meet the criteria under s 36(2)(a) under the Act.

Complementary protection assessment

1. The Authority was not satisfied there were substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Sri Lanka there is a real risk the applicant would suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) and affirmed the decision under review.

Proceedings before this Court

1. The ground in the amended application is as follows:

   1. The IAA has made a decision so unreasonable that no decision maker would have made it.

   Particulars

   By concluding, at paragraph [4] of the decision, that the Applicant “had an adequate opportunity to present his case” and that “having regard to the statutory scheme and the circumstances of this case, I am not satisfied an interview with the applicant is required or necessary”, the Assessor made a decision so unreasonable that no reasonable decision maker would have made it.

2. Mr Bodisco of counsel on behalf of the applicant argued that the decision of the Authority not to exercise the power under s 473DC(3) was legally unreasonable in the circumstances of the present case. Mr Bodisco contended that the applicant had not received one of the communications sent by the delegate providing the applicant with an opportunity to attend an interview. Mr Bodisco argued that the invitation to the second rescheduled interview was sent by email and that the applicant had not ticked that as a means by which the applicant wished to receive communication. The court book includes material sent by the delegate to that email address, inviting the applicant to provide a statement of claim. The applicant responded to that invitation from the email address. There is no evidence before the Court that the applicant did not receive the emailed second invitation. Further, on the face of the material before the Court, the first invitation was sent to an address to which there is no issue the applicant received that first invitation.

3. Mr Bodisco sought to argue that there was a reference to medical material that suggested there must have been some medical incapacity for the applicant in respect of an inability to attend the first interview. There is no medical material that has been provided to support such a contention. Notwithstanding the skilful submissions of Mr Bodisco, this is not a case where the failure to exercise the power under s 473DC(3) can be said to lack an evident and intelligible justification. The decision of the Authority not to invite the applicant to an interview in circumstances where the applicant had had two opportunities to do so cannot be said to be illogical, irrational, or unreasonable.

4. The Court does not accept on the evidence that the applicant did not receive both invitations to attend the interview. The Court does not accept that the applicant was suffering from a medical incapacity that prevented his attendance at either interview. In the present case, there is no request to the Authority to exercise any power under s 473DC or any provision of new information in response to the invitation that was sent on 18 January 2017 identifying new information or putting submissions as to why material should be received as new information.

5. The Authority’s decision not to invite the applicant to attend an interview was not legally unreasonable.

Conclusion

1. No jurisdictional error as alleged in the amended application is made out. The amended application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  22 December 2017