BLQ18 v Minister for Home Affairs

[2019] FCCA 1423

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1423

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority misconstrued country information – whether the Immigration Assessment Authority failed to consider information and failed to seek further information – whether affected by unreasonableness – no jurisdictional error – application dismissed – costs awarded.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36

Cases cited:

NABE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (No.2) [2004] FCAFC 263

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Minister for Immigration and Ethnic Affairs v Wu Shan Liang Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: BLQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 792 of 2018

Judgment of: Judge Humphreys

Hearing date: 27 May 2019

Date of Last Submission: 27 May 2019

Delivered at: Parramatta

Delivered on: 27 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Play Fair Legal

Counsel for the Respondents: Mr Delany

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. Pursuant to the leave granted to the applicant at the hearing on 27 May 2019 to rely on the grounds in the draft amended application dated 20 May 2019, the applicant’s draft amended application be deemed to have been filed on 27 May 2019.

2. The application is dismissed.

3. The Applicant pay the first Respondent’s costs fixed in the amount of $7328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 792 of 2018

BLQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a Sri Lankan citizen of Tamil ethnic background and is now an evangelical Christian by religion. The applicant left Sri Lanka with his family as a refugee in 1990 when he was 12 years old. The applicant was in India for some 22 years in a refugee camp during which time he married and had two children. In 2012, the applicant and his family travelled by boat to Australia.

2. On 30 August 2016, the applicant lodged an application for a Safe Haven Enterprise visa (“protection visa”). On 1 December 2017, a delegate of the Minister for Home Affairs refused the application. The applicant then sought a review by the Immigration Assessment Authority (“the Authority”). On 23 February 2018, the Authority affirmed the decision not to grant the applicant a protection visa. The applicant now seeks judicial review of the Authority’s decision.

Background and Applicant’s Claims

1. The applicant’s claims are set out in paragraph 8 of the Authority’s decision. The applicant grew up in a Liberation Tigers of Tamil Eelam (“LTTE”) controlled area in Sri Lanka during the civil war. The applicant experienced a traumatic background, being exposed to gunshots, explosions, an aerial bombing and witnessed the death or maiming and/or wounding of both civilians and presumably combatants.

2. In 2012 when he was 12 years old, the applicant and his family fled to India. The applicant was again caught in a traumatic incident, being a bombing on his way to the boat and he witnessed dead bodies. The applicant lived in a refugee camp in India for 22 years without citizenship rights. The applicant experienced discrimination and was mistreated by Indian security authorities. In 2004, he married a Christian Tamil and converted to Christianity from Hinduism.

3. While in Australia, after the applicant’s arrival and release, he attended the Martyrs Day event in 2014, commemorating LTTE members who died fighting in the war and the applicant] fears that Sri Lankan authorities may suspect him of being involved with the LTTE if they see the video footage of the event.

4. The applicant also had his details released by the Department of Home Affairs during a website disclosure and he fears harm if these details were accessed by the Sri Lankan authorities.

5. The applicant fears return to Sri Lanka as he has lived outside the country for his adult life, some 28 years. The applicant fears he will be discriminated against by Hindu and other Singhalese people due to his conversion to Christianity. The applicant fears he will be targeted by security authorities due to his lack of identification papers, as he left Sri Lanka at 12 years of age. The applicant fears harm on return as a failed asylum seeker. The applicant fears abduction, which has happened to two of his cousins-in-law.

The Authority Decision  

1. The Authority accepted the applicant’s identity and his Sri Lankan nationality. The Authority accepted the applicant’s traumatic experiences growing up in an LTTE controlled area during the civil war. The Authority accepted the applicant’s family was displaced on a number of occasions before fleeing to India in 1990. The Authority accepted that the applicant has not had access to psychological treatment for his exposure to traumatic events.

2. The Authority accepted the applicant’s only identity document is a refugee identity card issued to him by Indian authorities in the refugee camp where he stayed. The Authority accepted the applicant was discriminated against and mistreated by authorities while in India as a refugee. The Authority found, as set out in paragraph 15 of the decision, the applicant’s evidence to be credible and reflecting the genuine-lived experience of a Tamil forced to flee his country and live as a refugee due to war.

3. The Authority did not accept that the applicant’s attendance at the Martyrs Day event in 2014 or participating in a demonstration in Tamil Nadu whilst he was a refugee would give rise to an imputed LTTE profile with Sri Lankan authorities, such that he would be of interest to them upon his return. The Authority noted that the applicant had no personal LTTE connections, having departed Sri Lanka when he was only 12 years of age.

4. The Authority noted evidence that the applicant’s brother K, had returned to Sri Lanka in 2012 and had been taken away by the Sri Lankan army and questioned and beaten on the basis of suspicion that he supported the LTTE from India. The Authority concluded at paragraph 21, based on Department of Foreign Affairs and Trade (‘DFAT’) reports, that the applicant would not be suspected of having any LTTE affiliation, and that his extended absence abroad would not give rise to any imputed association with the LTTE.

5. At paragraph 26, the Authority noted that returning Tamils can be subject to “administrative and lifestyle” difficulties, but there was no “official or societal discrimination” upon their return. At paragraph 27, the Authority considered the difficulties the applicant would face upon returning to a community where he is isolated, given his family had rejected him due to his conversion to Christianity. The Authority concluded, however, there was no real chance of serious harm in having to re-establish himself, notwithstanding he may have no contacts or support networks.

6. At paragraph 28 of the decision, the Authority noted the applicant would suffer a degree of harassment or discrimination as a Tamil and would not have the same opportunities as Singhalese Sri Lankans. The Authority concluded, however, this did not amount to serious harm.

7. At paragraphs 30 to 33, the Authority dealt with the applicant’s religious conversion to Christianity. The applicant converted before coming to Australia. The Authority accepted the applicant is a practising evangelising Christian. The Authority noted the submission that if the applicant were to evangelise upon his return he would be targeted, although the applicant did not state by whom or those within Sri Lanka’s community who oppose conversion. Material supplied to the Authority suggested that evangelising Christians face violence at the hands of religious extremists. The Authority noted that country information indicates that the risk of violence increases where there are “unethical conversions” which involve a financial inducement to convert.

8. Both counsel in Court, conceded that this was an error in the decision of the Authority, in that this particular material was not contained in the DFAT report that was referred to in the decision, being country information report dated 24 January 2017. Surprisingly the Authority, at paragraph 33, concluded it was not satisfied there was a real risk of harm upon return for reason of being a practising evangelical Christian in combination with being a Tamil from the north of Sri Lanka.

9. At paragraphs 34 to 57, the Authority dealt with the risks associated with his illegal departure from Sri Lanka as a 12 year old with his family. The issues of detention upon arrival are covered only in some respects in the decision. At paragraph 58, the Authority concluded that the Applicant did not meet the definition of a refugee in s 5H (1) or section 36(2) (a) of the Migration Act 1958 (Cth) (“the Act”).

10. At paragraphs 59 and 63, the Authority dealt with the issue of complementary protection. For the same reasons, they concluded at paragraph 63 that the applicant does not meet the requirements of protection under s 36(2)(aa) of the Act.

Grounds of Appeal

1. The applicant’s originating application set out four grounds of appeal. In the written submissions, the applicant abandoned grounds 2, 3 and 4, and sought leave to rely upon new grounds 5 and 6. This was agreed to by the respondent and leave was granted.

2. In considering the grounds, the Court’s attention was drawn to two particular decisions regarding mistakes of fact. The first is NABE v The Minister for Immigration and Multicultural Affairs and Indigenous Affairs (No.2) [2004] FCAFC 263, in particular, reference was drawn to paragraph 63 of that decision where it states, inter alia:

   …It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error…

3. Further, the Court’s attention was drawn to the decision of Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 being a decision of Kenny, Griffiths and Mortimer JJ. At paragraph 49 of that decision, the following is stated:

   The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made…

4. Kenny, Griffiths and Mortimer JJ in MZYTS refer then to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, specifically paragraphs 10, 34 and 68. They go on to say in MZYTS:

   Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error.

   And they refer there again to Yusuf in particular the paragraphs 10, 44 and 69 of that judgment.

5. Ground 1 of the applicant’s grounds of judicial review concern the situation regarding the applicant’s detention upon arrival as an illegal departee. The ground suggested the Authority misconstrued the DFAT report that the applicant has “the option of providing a personal surety”. The ground suggests that the applicant may spend an extended time in prison and be exposed to unacceptable conditions.

6. When the Court reads the DFAT material, it relevantly states:

   If a person pleads guilty, they will be fined (which they can pay by instalment) and they 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.

7. Issue was taken with the decision of the Authority, in that, at paragraph 50, the Authority said the following:

   Although the applicant may not to be able to have a family member act as a guarantor given that he claims not to be in contact with his siblings in Sri Lanka, he has the option of providing a personal surety.

8. The Authority goes on to say:  

   There is no information before me to suggest that the applicant, having fled Sri Lanka with his family when he was a young child, was other than an ordinary passenger on such a venture. I am not satisfied that the applicant would be given a custodial sentence.

9. The Court presumes that should the applicant plead not guilty to the charge of being an illegal departee and was found guilty, that is what the last sentence refers to.       

10. Issue was taken with the words that “he has the option of providing a personal surety”. The respondent in their written submissions concede that:

    The IAA’s decision might theoretically be set aside because the authority failed to understand a claim raised by the evidence.

11. The situation is that it is not at the option of the applicant to provide a personal surety if he returned. That is a matter for a magistrate and it is for a magistrate to determine whether or not the applicant is released if he pleads not guilty on a personal security or requires a guarantor.

12. However, in the submissions, the respondent submitted that the Authority’s decision should not be read with a keen eye for error and reference was made to Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 271 to 272. Further, it suggested that the mistake or misunderstanding must be one which, if not made, could have realistically resulted in a different decision as per Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.

13. The Court, when reading paragraphs 48 and 50 of the Authority’s decision as a whole, is not satisfied, whilst the wording is not a precise as it should be and, indeed, it is incorrect in the words that I have indicated above, that the Authority misconstrued the situation entirely. There are words there, such as:

    In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety.

    The Authority then talks about a family member. The Authority then goes on to state at paragraph 50:

    If he pleads guilty, he will be fined and released.

14. The Court is reasonably satisfied that at paragraph 50, it was a misstatement rather than being a situation where the Authority did not understand the evidence. The Court is reasonably satisfied that the Authority did understand that the release on bail on personal surety was a matter in the magistrate’s discretion and it was not a matter in the applicant’s discretion.

15. The Court does not accept the applicant’s submissions, that paragraph 7 suggests that the Authority failed to understand the country information. The Court does not accept that it amounts to jurisdictional error and that it amounts to a constructive failure to consider the actual country information. The wording is poor, however, this does not amount to the Authority misunderstanding the information. The Court does accept, however, that if the applicant is not granted bail on his own personal surety, he would be housed in poor and overcrowded and unsanitary conditions for an extended period of time.

16. The Court notes that the applicant’s grounds in the original application number 2, 3 and 4 are abandoned. I will now turn to what is referred to as ground 5 in the amended application.

17. The applicant alleges that the DFAT report, which is relied upon, makes no mention of “unethical conversions”. The respondent concedes that this is the situation and, again, is an error. When the Court looks at the totality of what is said, it is clear that there is reference to unethical conversions which is a reference to situations where persons seek to convert persons by offering a financial inducement to convert religion. It goes on to say:

    That consistent with this information, I note the reports of hard-line Buddhist groups and national groups attacking Christians who seek to evangelise, particularly evangelical groups which are accused of forced conversions.

18. However, whilst that information was not contained in the DFAT report, we have a circumstance where the Authority goes on to say that they are not satisfied that the applicant would engage in any such activity. At paragraph 33, the Authority goes on:

    Having regard to all of the country information in the review of the evidence before me, I’m not satisfied there’s a real chance that the applicant will face harm for being a practising evangelical Christian in combination with his being a Tamil from the north.

19. What is clear is that the Authority considered the risks of the applicant being a practising evangelical Christian and determined at paragraph 33, that he did not face a real chance of harm. The applicant submitted that paragraph 33 of the Authority’s decision contains a statement or conclusion based on a false premise and is therefore jurisdictional error. However, while the statement is clearly wrong, it is then clarified and qualified by the following, “However, there is no information for me to suggest that the applicant has carried out or will attempt to carry out unethical conversions”. The Court does not consider that the false promise or error in the information had an impact realistically on the decision. All of the risks were considered and the Authority came to a view that the applicant would not face a chance of real harm.

20. Ground 6 suggests that the Authority improperly narrowed the claim solely by reason of threats from the Hindu community as compared to the fact that the applicant was a practising evangelical Christian, as compared to the applicant being at threat from the entirety of the population, not just Tamil Hindu people. The Court notes that at the commencement of the decision, the claims laid out by the applicant, as recounted by the Authority, indicate that:

    He also fears that Hindus and Singhalese people in his home would oppose his conversion to Christianity, and he may be thought of as a Christian convert.

    Quite clearly, the Authority understood the nature of the claims.

21. Again, when reading paragraph 32 in its totality, the Court is satisfied that there was consideration of whether or not the applicant would face risk at the hands of people other than Tamil Hindus. The second sentence of paragraph 32 notes:

    The majority of Tamils are Hindu, although many are Christians and Muslim. Religion plays a significant role in the daily life of Sri Lanka and is directly linked to ethnicity. Singhalese are mostly Buddhists and Tamils are mostly Hindu, and Christians are a minority in each.

22. When read in totality, the Court is reasonably satisfied that the risk of the applicant being at serious harm as a result of being a practising evangelical Christian was considered fully and it was not unduly narrowed simply to those who were of Tamil Hindu ethnic extraction. The Court finds no jurisdictional error in this ground.

Conclusion

1. Accordingly, the application is dismissed. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 21 June 2019