BMG17 v Minister for Immigration
[2018] FCCA 3341
•2 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMG17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3341 |
| Catchwords: MIGRATION – Immigration Assessment Authority – safe haven enterprise (subclass XE-790) visa – whether the Authority considered the applicant’s scarring arising from a shrapnel wound incurred in the Sri Lankan civil war – whether the Authority made any other jurisdictional error. |
| Legislation: Migration Act 1958 |
| Applicant: | BMG17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 694 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 2 November 2018 |
| Date of last submission: | 2 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 2 November 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the first respondent: | Julia Lucas |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | DLA Piper |
ORDERS
The application filed on 6 April 2017 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 694 of 2017
| BMG17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
(revised from the transcript)[1]
[1] Reasons for judgment were given orally on 2 November 2018. The applicant requested reasons to be provided in writing on 14 November 2018. Chambers ordered a transcript of the reasons for judgment on 14 November 2018. Auscript provided the transcript of the reasons for judgment on 15 November 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 16 November 2018.
This is an application to review a decision of the Immigration Assessment Authority. The applicant is a Tamil, Hindu citizen of Sri Lanka. He claimed to fear harm on the basis of:
a)his uncle’s membership of the LTTE;
b)his own forced recruitment into the LTTE;
c)a shrapnel injury in his left hip, the scar of which would cause the Sri Lankan authorities to know that he had fought for the LTTE;
d)his Tamil ethnicity;
e)his status as a young Tamil male from the north of Sri Lanka;
f)his status as a Tamil from a former LTTE-controlled area;
g)his status as a failed asylum seeker; and
h)his illegal departure from Sri Lanka.
The applicant applied for a safe haven enterprise (subclass XE-790) visa. That application was refused by a delegate of the Minister for Immigration and Border Protection. The matter was automatically referred to the Authority. The applicant provided no additional information to the Authority. The Authority affirmed the delegate’s decision not to grant the applicant the visa.
The Authority accepted that the applicant was a Tamil, Hindu citizen of Sri Lanka who was born on 2 March 1992 in Jaffna. The Authority accepted that the applicant’s uncle had been a member of the LTTE and had been missing since the end of the civil war in Sri Lanka. The Authority also accepted that the applicant had been questioned by the CID about his uncle’s whereabouts.
The Authority did not accept that the Sri Lankan authorities would consider that the applicant had been involved with the LTTE because of his connection to his uncle. The Authority did not accept that the authorities went to the applicant’s house after he came to Australia to inquire about his whereabouts. The Authority did not accept that the applicant’s own forced recruitment in the LTTE would cause the applicant to face a real chance of serious or significant harm.
The Authority noted that the applicant had a shrapnel injury to his left hip. The Authority accepted that the applicant had been held in a camp for internally displaced people but had not been the subject of any further adverse interest after his release, notwithstanding his scar. The Authority also noted country information to the effect that there was no recent evidence to indicate that people with conflict-related scarring were subject to a real chance of harm at the hands of the Sri Lankan authorities or any other group due to the scar causing suspicion of LTTE involvement.
The Authority was not satisfied that the applicant faced a real chance of harm on account of being a Tamil male from the north of Sri Lanka or from a former Tamil-controlled area, or that he would suffer a level of discrimination amounting to serious harm on account of being a Tamil.
The Authority accepted that the applicant would be identified as a failed asylum seeker who had departed Sri Lanka illegally if he were to return to Sri Lanka. The Authority accepted that the applicant would probably be questioned upon return to Sri Lanka and charged with having departed illegally. However, after considering these issues in some detail, the Authority did not accept that the applicant would face a real risk of serious or significant harm on their account.
The applicant filed an application in this court, apparently without the benefit of legal assistance. The application sought an extension of time in which to seek review of the Authority’s decision. The extension of time was granted by consent by a registrar on 10 October 2017. However, when the matter came before the court for hearing on 17 October 2018, it was not appreciated that the extension of time had already been given. The Minister’s submissions proceeded on the basis that an extension of time was required, and the hearing proceeded on that basis. After the conclusion of submissions, it became apparent that the extension of time had already been granted. As submissions had proceeded on an incorrect basis, and as the time at which the court would ordinarily rise had already passed, the matter was adjourned until today for final hearing.
The first three grounds of the application make allegations about errors made by the Minister. This court is not permitted to review decisions of the Minister in circumstances such as this. The applicant clarified in the hearing on 17 October 2018 that, when he said the Minister in grounds 1 to 3, he meant the Authority. Ground 5 alleges an error on the part of the Tribunal. However, I understand that to mean the Authority erred in the ways alleged.
The first ground of review is:
The [Authority] erred in law by taking into consideration facts not relevant to the matter in making the decision.
When asked to explain to the court what facts the Authority had taken into account that were not relevant, the applicant was unable to explain or give any particulars of what these facts were. I have been unable to ascertain any facts that the Tribunal took into account that were not relevant.
The Minister noted, in relation to this ground, that the Authority took into account new information in the form of an updated item of country information, being an updated report from the Department of Foreign Affairs and Trade (“DFAT”).
The Minister submitted that that DFAT report was not irrelevant. I accept that submission. Being recent country information, it was clearly relevant to the matters the Authority was required to decide. The Minister also submitted that the Authority was entitled to take into account that information because there were exceptional circumstances that justified it doing so. I accept the Minister’s submissions on that ground.2 Ground 1 is not made out.
2 The new information did not need to satisfy s.473DD(b) of the Migration Act 1958 because it was not given to the Authority by the applicant.
The second ground of review is:
The [Authority] erred in law by not taking into considerations relevant facts in making the decision. (error in original)
In relation to this ground, the applicant said that the Authority failed to take into account that he had had an operation in Australia to remove shrapnel from his body and the result was that he had a significant surgical scar.
The Authority dealt with the issue of the applicant’s scar at paragraph 19 of its reasons for decision, which is as follows:
I accept that the applicant had a shrapnel injury to his left hip. The applicant claims this scarring will cause the Sri Lankan authorities to believe he was fighting for the LTTE. I note the applicant does not appear to have been of any further adverse interest to the Sri Lankan authorities due to his injury as he has not claimed to have been detained or questioned further about it and appears to have continued his life without any problems after his release from the IDP camp. In 2014, DFAT also noted that there was no recent evidence to indicate that people have been detained due to conflict-related scarring and the more recent country information that was before the delegate does not reflect this.8 I am not satisfied the applicant faces a real chance of harm from the Sri Lankan authorities or any other group due to suspicion of LTTE involvement due to his injury.
8 DFAT, “DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam”, 3 October 2014, CIS2F827D91260, p.8
It is clear from that paragraph that the Authority understood that the applicant had a shrapnel injury that had caused scarring and that the applicant believed it would lead the Sri Lankan authorities to believe that he had fought for the LTTE.
The Authority specifically noted that the applicant had not been of any further adverse interest to the Sri Lankan authorities since his detention and questioning in a camp for internally displaced people. The Authority also noted that a DFAT report indicated that there was no recent evidence to indicate that people with conflict-related scarring had been detained. The Authority indicated that it was not satisfied that the applicant faced a real chance of harm from the Sri Lankan authorities or any other group due to a suspicion of LTTE involvement because of his injury.
Notwithstanding that paragraph, the applicant maintained that he had told the delegate that he was at particular risk in Sri Lanka because of the surgical scar that he had acquired in Australia. He claimed that he had told the delegate that, because of the surgical removal of shrapnel in a hospital in Australia in March 2016, his scar was much bigger and therefore he was at particular risk because of the surgical scar.
At the hearing on 17 October 2018, the applicant was asked to listen to the tape recording of his hearing before the delegate and identify the passage where he made that claim in time for the hearing today. The applicant confirmed at the hearing on 17 October 2018 that he had the tape recording of his hearing before the delegate, and he said he would identify the relevant passage.
When the matter returned to court today, the applicant told the court that he had not been able to find the relevant passage on the tape recording because he did not have the correct tape.
Consequently, the court enabled the applicant and counsel for the Minister to listen to the tape recording in the courtroom in my absence. They identified two passages during which the applicant addressed the issue of his injury. They were:
a)between 36 minutes and five seconds and 40 minutes and 51 seconds; and
b)between 59 minutes and 55 seconds and 103 minutes and 30 seconds.
When I returned to the bench, both of those passages were played to the court. However, they did not contain a claim as alleged by the applicant.
The applicant’s response to that was that something may have been deleted from the tape. However, there is no evidence that the tape has been tampered with, and I do not consider that it is a realistic possibility.
The Authority made findings about the applicant’s scarring and understood the point that a person may be at risk because of scars that the authorities might consider to have been incurred while that person fought on behalf of the LTTE.
However, the Authority, for reasons which it gave, did not accept that the applicant’s scars put him at a real risk of harm. The applicant did not make any specific claim, as far as can be ascertained from the tape, that the surgical scar put him at particular risk. It does not seem to me to be a point that would arise clearly from the materials. To my mind, a surgical scar from the removal of shrapnel does not put a person at any greater risk than the original scar from a shrapnel injury. It seems to me that the Authority’s findings about the applicant’s scarring encapsulated and covered any additional scar that the applicant might have incurred as a result of the surgical correction of his shrapnel injury. I am not persuaded that the Authority failed to take into account any relevant fact in making its decision.
The third ground of review is:
The [Authority] erred in not taking into consideration relevant Country information in making the decision.
The applicant has not been able to explain what country information the Authority failed to take into account. The Authority clearly had relatively recent country information. The applicant conceded, in submissions to this court, that he had not provided any country information to the Authority apart from his own oral evidence. He said that the oral evidence he had given to the Authority was that he had no freedom in his country to move about and he could not have a happy life there. That is not country information as that term is normally understood.
The applicant also said that if he had been given the opportunity, he could have provided additional country information. However, the tape recording of the delegate’s hearing shows that the applicant was invited a number of times at the end of the hearing to provide any additional information that he wished. I am not satisfied that there is any substance to ground 3.
The fourth ground of review is:
The Immigration Assessment Authority erred in law by taking into consideration facts not relevant to the matter in making the decision. a (error in original)
This repeats ground 1 and, as mentioned, that ground is not made out.
The fifth ground of review is:
The [Authority] erred in not taking into consideration under the Complementary Protection Provision of the Migration Act 1958 of the information provided by the Applicant.
In relation to this ground, the applicant said that he had a friend who had returned to Sri Lanka, who had gone missing and who everyone believes was tortured and killed and that that could happen to the applicant. However, there is not suggestion that that material was before the Authority. Consequently, it was not a jurisdictional error for the Authority not to take it into account.
More generally, the Authority’s reasons for decision indicate that it did consider the complementary protection provisions and how they applied in the applicant’s circumstances. I am not satisfied that there is any substance to ground 5.
I have looked at the Authority’s reasons for decision and parts of the court book and have been unable to discern any jurisdictional error made by the Authority.
In all the circumstances, the application must be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 16 November 2018
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