BMA16 v Minister for Immigration - [2019] FCCA 552

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMA16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 552

Catchwords:
MIGRATION – Protection visa – Sri Lankan Tamil – no basis for granting protection by delegate – IAA affirmed delegate’s decision – no error shown – application for judicial review dismissed.

Legislation:

Migration Act 1958, pt.7AA, ss.5H, 36(2), 46A, 473CD, 473DC, 473FB

Cases cited:

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

DBE16 v Minister for Immigration and Border Protection [2017]

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332,

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

BMA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 1266 of 2016

Judgment of:

His Honour Judge J D Wilson QC

Hearing date:

18 February 2019

Date of Last Submission:

18 February 2019

Delivered at:

Melbourne

Delivered on:

8 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr A Krohn

Solicitors for the Applicant:

Ambi Associates

Counsel for the First Respondent:

Solicitors for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

None

Solicitors for the Second Respondent:

Sparke Helmore Lawyers

ORDERS

The application filed on 16 June 2016 as amended on 21 January 2019 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $5 000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1266 of 2016

BMA16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed 16 June 2016 as amended on 21 January 2019, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (“IAA”) dated 1 June 2016, affirming a decision of a delegate of the minister (“delegate”) to refuse the grant of a safe haven enterprise (subclass 790) visa (“visa”).
When commencing this proceeding the applicant relied on eight grounds of review in his application for judicial review. It is useful to record those grounds in terms –
1. The IAA has taken into consideration irrelevant matters in coming to a conclusion that the Applicant is not credible:
a. The IAA took into account irrelevant factors such as whether someone who intended to set fire to a property as claimed by the Applicant, would or would not ask for petrol from nearby houses
b. The IAA took into account irrelevant matters such as the Applicant not knowing about the fire that destroyed two shops located about one hundred metres from his house until the next morning. Considering that the Tamils of Sri Lanka was under civil war and that bombings, shellings, fire and other atrocities were on-going, it is unreasonable of the IAA to conclude that the Applicant would or should have gone outside of his house to observe the fire if there was any commotion (Paragraph 15 of the Decision).
2. The IAA failed to take into account the Applicant’s claims and supporting evidences cumulatively in reaching its conclusion.
3. The IAA failed to raise the issue of whether the Applicant’s family could stand as guarantor for him in relation to a bail application.
4. The IAA failed to raise the issues of relocation and take into consideration the reasonableness of relocation and the Applicant’s arguments in relation to those matters.
5. The IAA reached a mistaken conclusion that just because the Applicant was not aware of the process of the dispute and the steps that were taken at various stages to resolve it, that the Applicant had any role in the creation of the petition or in ongoing negotiations with the shop owner (Paragraph 15 of the Decision).
6. IAA came to a mistaken assumption in relation to whether the people who were arrested were taken to court or released after a few days in that IAA failed to clarify with the Applicant what he meant by “the first two times they did not attend Court, after that they did” (Paragraph 16 of the Decision).
7. The IAA came to a conclusion which is unreasonable in which the Applicant would not face any harm in the foreseeable or near future without adequately considering all the facts and circumstances of the Applicant’s fear of serious harm.
8. The IAA did not consider all of the Applicant’s claims correctly and accurately. Further detailed particulars will be provided once we have received all relevant documents and recordings of the interviews along with the Court Book.
By his amended application, the grounds of review were truncated to four. They were as follows –
1. The Authority erred in the exercise of its power under section 473DC of the Migration Act 1958 and thereby erred in interpreting or applying the law, and failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of a delegate of the First Respondent.
Particulars
(a) The Authority did not exercise its power under section 473DC of the Migration Act 1958 to invite the Applicant to an interview or otherwise to get new information from the Applicant about his claims, when the credibility of the Applicant was critical to the Authority’s decision, the Applicant was not represented before the Authority, and the meaning of some of the Applicant’s evidence referred to the Authority was not clear to it. (Authority’s Decision and Reasons, [13)-(21), Court Book (“CB”) 158 - 161)
2. The Authority erred in the exercise of its power under section 473DC of the Migration Act 1958 and thereby denied the Applicant natural justice or procedural fairness.
Particulars
(a)     The Applicant refers to and repeats Particular (a) to Ground 1 of this application.
3. The Authority failed to have regard to relevant considerations including relevant information.
Particulars
(a)     In assessing the Applicant’s credibility, the Authority said, “it seems the applicant is suggesting that the other people arrested were also taken before a court, contrary to the claim in the statutory declaration that they were released after a few days and he was the only one charged.” (Emphasis added. Authority’s Decision and Reasons, [16], CB 159) This statement shows that the Authority failed to have regard to the exact terms of the statutory declaration which said nothing about whether the other people were charged, but which relevantly said in part:
“They put me in prison for 8 days. Three other people were also arrested but they were only kept for a few days. During that time, the case went to court. The result from the court was that I was innocent. I was released and I returned home to my family.” (CB 62, [21]
4. The Authority fell into jurisdictional error in that it was unreasonable or acted without logically probative evidence.
Particulars
(a)     The Applicant refers to and repeats the Particulars to the other Grounds of this application.
(b)     The Authority was unreasonable in not accepting the Applicant’s account of the fire, because the Authority’s rejection of that account was based not on evidence but on the assumptions or implicit findings that there was not a real chance “that people who intended to set fire to a property would call at the nearby home of a stranger and ask for petrol with which to do so”, and that there was not a real chance “that the applicant could have been unaware of a fire that destroyed two shops located about one hundred metres from his house until the next morning, as he claims.” (Authority’s Decision and Reasons, [15], [21], CB 159, 161)
The issue in this application was whether any of the grounds of review had merit.

Synopsis

For the reasons that follow, in my view none of the grounds succeeded with the result that this application for judicial review failed.

Relevant history

The applicant, a Tamil of Hindu faith from Batticaloa in eastern Sri Lanka, arrived in Australia on 20 September 2012 as an unauthorised maritime arrival.
By letter dated 1 September 2015 the department informed the applicant that the minister had exercised his power under s 46A(2) of the Migration Act (“Act”) to allow him to lodge a valid application for a temporary protection (subclass 785) visa and invited him to make an application for either visa.[1] On 1 October 2015 the applicant applied for the visa.[2]
[1] Court book (filed on 7 December 2016) 12‑18
[2] Ibid 19‑53
The applicant’s written claims for protection may be summarised as follows –
a)after returning from working in Qatar from 2007 until March 2010, the applicant returned to his village to become a member of the committee of the local Hindu temple where a liquor shop was near the temple owned by a wealthy man called [redacted];
b)people who attended the temple often had to pass the liquor shop, they were harassed outside the liquor shop and some women were also touched by people who had been drinking alcohol in front of the liquor shop;
c)temple members asked [redacted] to close the shop during festival times and for him to move away from the temple or ask his customers not to consume alcohol in response to which temple members also signed a petition against [redacted] resulting in an argument;
d)on one evening people came to the applicant’s house calling him by name and asked for petrol in response to which the applicant said he did not have any whereupon that night three shops owned by [redacted] were burnt down;
e)[Redacted] told the police that temple members had burned the shops;
f)the applicant told the police he had been asked for petrol and as a result he was kept in prison for eight days and was put before a court only to be found innocent of any wrongdoing;
g)over the next few months the applicant was harassed allegedly for having burned down the shops, which led to two people coming to his house on one occasion and hitting him with a tree branch and cutting him with a knife;
h)before he left for Australia the applicant drove around a candidate for a province election in Batticaloa; and
i)people have asked about the applicant since he has been in Australia.
The applicant also provided to the department country information and submissions regarding human rights abuses against Tamils, former members of the LTTE, women, political activists and failed asylum seekers in Sri Lanka.[3] However, the applicant made no claims himself in relation to those abuses or otherwise indicated that he was a member of one of those groups.
[3] Ibid 66‑85
On 11 December 2015 the applicant attended an interview with the delegate. At the interview the delegate explored the applicant’s claims for protection. Notably, the applicant stated he had never approached [redacted] and could not otherwise remember key dates concerning events such as when he was asked to be a temple committee member, when [redacted] was asked to close the liquor shop, when he was jailed for eight days or when he was harassed following his time spent in jail.
On 5 May 2016 a delegate of the minister refused to grant the applicant a safe haven enterprise visa and referred the decision to the IAA for review under pt 7AA of the Act.[4] The delegate did not accept that the applicant was a credible witness and did not accept any of his claims for protection.
[4] Ibid 131‑151
By letter dated 9 May 2016 to the applicant the IAA acknowledged the referral.[5] The letter attached the practice direction issued by the president of the IAA on 21 April 2016 under s 473FB of the Act and indicated that any submission to the IAA were required to be lodged within 21 days of the case being referred to the IAA.
[5] Ibid 152‑153
No submissions were received by the IAA.
On 1 June 2016 the IAA affirmed the delegate’s decision.[6]
[6] Ibid 155‑170
At paragraph 3 of its reasons the IAA had regard to the material sent to it by the Department under s 473CB of the Act. The applicant did not provide any additional information to the IAA.
At paragraph 14 of its reasons the IAA accepted that the applicant was a member of the temple committee and that there was a dispute between the committee and [redacted]. However, the IAA did not accept that the applicant had a significant role in the committee, or in the management or evolution of the dispute. The IAA considered that the applicant was unable to provide the kind of information about the management of the dispute which would be expected of someone who had a significant role in it.
At paragraph 21 of its reasons the IAA did not accept the applicant’s account of the fire nor that he was charged with arson and acquitted.
At paragraph 18 of its reasons the IAA expressed concerns with the applicant’s credibility and the IAA observed that at the interview before the delegate the applicant was unable to state with any certainty as to when events in relation to the fire occurred.
At paragraph 19 of its reasons the IAA also recorded that the applicant had provided documents in support of his account of the fires. However, the IAA observed that the documents were largely illegible, that the applicant could not explain what the documents were and that the applicant failed to provide translations of the documents despite being asked to do so.
At paragraph 20 of its reasons the IAA said it had considerable doubts about the authenticity of a police report provided by the applicant to support his claim that he had sought protection from the Police.
At paragraph 22 of its reasons the IAA found that the applicant did not face a risk of harm as a result of having worked as a driver for a political party. The IAA recited the applicant’s evidence at the interview before the delegate that he did not have any problems as a result of driving the candidate around and that this was not a reason for fearing to return to Sri Lanka.
At paragraph 23 of its reasons the IAA found that there was no basis arising from credible information on which the IAA could be satisfied that the applicant faced a real chance of harm of any kind now or in the reasonably foreseeable future should he return to Sri Lanka for the reasons claimed.
At paragraph 24 of its reasons the IAA said the applicant had provided submissions and country information with the visa application regarding human rights abuses against Tamils, former members of the LTTE, women, political activists and failed asylum seekers in Sri Lanka, despite not making claims in his application or at the interview before the delegate in relation to these grounds.
Between paragraphs 25 and 33 of its reasons the IAA said that, notwithstanding that the applicant made no claims in relation to these grounds, the IAA considered whether the applicant would face a real chance of harm upon return to Sri Lanka in relation to these grounds. The IAA found that the applicant would not face a real chance of harm as a Tamil, failed asylum seeker or as a result of departing Sri Lanka illegally.
At paragraph 29 of its reasons, in relation to his illegal departure the IAA set out the processing procedure for people returning to Sri Lanka who had left the country illegally, and that they could expect to be charged, arrested, held in remand and subject to a fine.
At paragraph 30 of its reasons the IAA said there was no credible evidence to suggest that the applicant would be of any adverse interest to the authorities upon return, such as having a link to the LTTE, being politically involved or having committed a criminal offence.
At paragraphs 31 and 32 of its reasons the IAA did not accept that the imposition of a fine amounted to serious harm and also found that the procedures the applicant would face would occur under a non-discriminatory law of general application and therefore did not amount to persecution as defined.
At paragraph 34 of its reasons the IAA concluded it was not satisfied that the applicant’s met the definition of refugee in s 5H(1) and found that he did not meet s 36(2)(a) of the Act.
At paragraphs 37 and 38 of its reasons the IAA said that the applicant made no specific claims under complementary protection separate to that made under the refugee criteria. Relying on its other findings in relation to the refugee criteria, the IAA said it was satisfied that there was not a real risk that he would face significant harm upon return to Sri Lanka.
Notwithstanding that the applicant made no claim to fear harm on the basis of having left Sri Lanka illegally, at paragraph 39 of its reasons the IAA considered that the applicant may be charged under the Immigrants and Emigrants Act and be remanded for a short period. The IAA did not accept that the applicant had a particular profile which would result in him being subject to treatment which might amount to significant harm. Nor did the IAA accept that any of the process itself amounted to significant harm.
At paragraph 40 of its reasons the IAA considered the applicant’s claims cumulatively and was not satisfied that the applicant faced a real risk of significant harm on return to Sri Lanka. The IAA concluded that the applicant did not meet s 36(2)(aa) of the Act.

In this court

As a broad submission the minister argued that all of the applicant’s grounds invited an impermissible merits review, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[7]The minister said that in relation to the credit findings the IAA made, those were open on the evidence and should not be disturbed.
[7] (1996) 185 CLR 259
It is necessary to go to each ground.

Grounds one and two

Under those grounds the applicant contended that the IAA did not exercise its power under s 473DC to invite the applicant to an interview or otherwise to get new information about his claims when credibility was critical to IAA’s decision.
The applicant relied on paragraphs 13 to 21 of the IAA’s reasons in contending that in several places the IAA expressed the view that certain matters were not clear to it.
In ground two, while relying on the same particulars that were subjoined to ground one, the applicant contended that the IAA erred in the exercise of its powers under s 473DC and thereby denied the applicant natural justice or procedural fairness.
The minister responded to both grounds in the same manner so it is convenient for me to also address grounds one and two at the same time.
The minister said as a broad overview submission that in reality the applicant invited a merits review that was impermissible according to cases such as Wu Shan Liang. The minister focused on the IAA’s finding that it was not satisfied the applicant had provided a credible account of the applicant having been subjected to harm or any serious threat of harm prior to the applicant’s departure from Sri Lanka. The minister recognised that credit findings are not impervious to challenge. Citing CQG15 v Minister for Immigration and Border Protection,[8] the minister submitted that in this case adverse credit findings were open to the IAA.
[8] (2016) 253 FCR 496
The minister also contended that the IAA’s review obligations did not include an obligation to invite the applicant to an interview. The minister said that under pt 7AA the IAA was required to review the delegate’s decision and that was ordinarily done on the papers. I agree. The minister said the IAA was under no obligation to invite the applicant to comment on the possibility of the IAA making a particular finding, citing DBE16 v Minister for Immigration and Border Protection.[9]
[9] [2017] FCA 942

Most importantly, it seemed to me that the statutory scheme under pt 7AA did not support the scenario postulated by grounds one and two. The delegate made the findings and reached the conclusions that the delegate did. Thereafter the application went to the IAA for independent consideration with the statutory scheme requiring the IAA to conduct its review on the papers, save in the circumstances set out in pt 7AA. Even if credibility was in issue, the IAA was not under a mandatory obligation to invite the applicant to an interview or otherwise to get new information. I do not accept the basic premise embedded in grounds one and two. Nor do I accept that the IAA denied the applicant procedural fairness in conducting the IAA review in the manner stipulated in pt 7AA, that is to say, on the papers.
Both grounds one and two were devoid of merit.

Ground three

Under this ground the applicant contended that the IAA failed to have regard to relevant considerations. The applicant’s particulars to ground three contained a submission that the passage quoted from paragraph 16 of the IAA’s reasons showed that the IAA failed to have regard to the exact terms of the statutory declaration that said nothing about whether the other people were charged.
The extract of paragraph 16 in ground three was incomplete. That incomplete portion failed to properly convey the context and import of the IAA’s concerns about the version of events as given by the applicant. It is necessary to put the whole of paragraph 16 in context to understand that the IAA did not make the error asserted. Paragraph 16 was as follows –
The applicant has provided inconsistent accounts of the circumstances of the other people who he claims were arrested, along with him, after the fire. In his statutory declaration he stated that three other people were also arrested but they were released after a few days. At the SHEV interview he said that the other people were also put in gaol, and when asked if they went to court at the same time as he did, he replied “the first two times they did not attend court, after that they did”. While the meaning of this response is not entirely clear, it seems that the applicant is suggesting that the other people arrested were also taken before a court, contrary to the claim in the statutory declaration that they were released after a few days and he was the only one charged. Also of concern for his overall credibility is his subsequent statement that he did not know if those three people had been harassed (as he claims he was) after the conclusion of the police investigation. As discussed with him by the delegate, it seems highly implausible that in a small village, people who were members of the temple committee and who were accused of arson by someone with whom the temple committee was in dispute, would not discuss or be aware of significant ongoing threats or harassment levelled against them which were apparently connected with the dispute.
It seemed to me that those observations were open. I detected no error in respect of ground three.

Ground four

Under this ground the applicant argued that the IAA acted unreasonably in not accepting the applicant’s account of the fire. The minister said that this ground invited an impermissible merits review. The minister denied the existence of any unreasonableness.
I agree with the minister’s contentions. I say that for two main reasons. First, to trawl over the evidence in order to ascertain whether or not this ground had merit invited an impermissible merits review. Second, according to the current state of learning on legal unreasonableness as espoused in Minister for Immigration and Citizenship v Li,[10] Minister for Immigration and Border Protection v Stretton,[11] Minister for Immigration and Border Protection v Eden,[12] Minister for Immigration and Border Protection v Singh[13] and Minister for Immigration and Citizenship v SZRKT[14] there was no foundation for the contention that the IAA’s decision was legally unreasonable as to outcome or process. Ground four was without merit.
[10] (2013) 249 CLR 332
[11] (2016) 237 FCR 1
[12] (2016) 240 FCR 158
[13] (2014) 231 FCR 437
[14] (2013) 212 FCR 99

Conclusion

All grounds failed. I dismiss this proceeding and order the applicant to pay the minister’s costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC

Date: 8 March 2019