BNN16 v Minister for Immigration

[2017] FCCA 145

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNN16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 145

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a safe haven enterprise visa – applicant claiming a fear of harm in Sri Lanka as a member of a minority ethnic group descended from European colonists – harm experienced by the applicant not found to be serous or significant – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5J, 5H, 46A, 65, 91K, 473CA, 473DC, 473DD

Cases cited:

An v Minister for Immigration (2007) 160 FCR 480
Hope v Bathurst City Council (1980) 144 CLR 1
Maan v Minister for Immigration (2009) 179 FCR 581
Vetter v Lake Macquarie City Council (2001) 202 CLR 439

Applicant: BNN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRTAION ASSESSMENT AUTHORITY

File Number: SYG 1577 of 2016

Judgment of: Judge Driver

Hearing date: 30 January 2017

Delivered at: Sydney

Delivered on: 30 January 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr B D Kaplan

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed 22 June 2016 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1577 of 2016

BNN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks review of a decision of the Immigration Assessment Authority (Authority) made on 26 May 2016.  The Authority affirmed a decision of a delegate of the Minister not to grant the applicant a safe haven enterprise visa.  Background facts are conveniently set out in the Minister’s outline of submissions filed on 23 January 2017.

2. The applicant is a national of Sri Lanka.  He entered Australia, as an unauthorised maritime arrival, on 20 September 2012[1].

   [1] Court Book (CB) 126

3. On 26 September 2012, the applicant participated in an Arrival Interview with an officer in the Minister’s Department (Department)[2]. 

   [2] CB 155-165

4. On 8 January 2013, the applicant took part in an Irregular Maritime Arrival Entry Interview[3].  During this interview, the applicant claimed that he left Sri Lanka because “[t]here is not enough money … to do more than just live on – nothing more” and he “felt like [he] was cornered, [he] was not treated fairly” by the “community and government”, as he has a Portuguese name[4].

   [3] CB 166-181

   [4] CB 176

5. On 29 August 2013, the applicant purported to apply for a protection (Class XA) visa[5]. By force of ss.46A and 91K of the Migration Act 1958 (Cth) (Migration Act), however, the applicant’s application was invalid and he was notified of this on 5 August 2014[6].

   [5] CB 182-263

   [6] CB 264-265

6. On 1 September 2015, the Department invited the applicant to apply for, relevantly, a Safe Haven Enterprise visa (SHEV)[7].  The applicant did so on 17 September 2015[8]. 

   [7] CB 1-7

   [8] CB 8-83

7. With his application, the applicant provided a statutory declaration which he made on 11 September 2015[9].  In it, he set out his claims for protection.  In summary, those claims were as follows:

   a)he is an ethnic Sri Lankan Burgher;

   b)he is a Catholic;

   c)as a Burgher, he has been treated as outcast by the Tamil population in eastern Sri Lanka and claims that the Sinhalese do not respect his community, either;

   d)employers have discriminated against people like the applicant;

   e)he believes that he is at risk of being imprisoned because he left Sri Lanka illegally, harmed by unknown persons in the east for being a young Tamil speaker, discriminated against because of his Burgher ethnicity, abducted by the authorities because they would perceive him to have access to money (as he lived in Australia for several years), and perceived to be a supporter of the Liberation Tigers of Tamil Eelam (LTTE).

   [9] CB 51-54

8. On 3 May 2016, a delegate of the Minister made a decision to refuse to grant a SHEV to the applicant[10].

   [10] CB 126-154

Merits review

1. On 4 May 2016, the Minister referred the delegate’s decision to the Authority pursuant to s.473CA of the Migration Act[11].

   [11] CB 414

2. On 23 May 2016, the applicant’s then representative sent to the Authority a submission (in which aspects of the delegate’s decision were addressed) and a statement made by the applicant on 22 May 2016 containing new information[12].  The latter relevantly referred to an incident that took place in January 2016 where, according to the applicant, some unknown, armed men in civilian clothing who spoke Tamil and Sinhalese came to his parents’ home searching for him and told his parents that, when he returned to Sri Lanka, they would come and take him for questioning[13].  The applicant claimed that these people repeatedly came to his parents’ home at night, banging on the door[14].

   [12] CB 418-422

   [13] CB 421 [1], [4]

   [14] CB 421 [6]

3. On 26 May 2016, the Authority affirmed the delegate’s decision.  Those of its findings that are relevant to the applicant’s grounds of review are considered below in the context of addressing those grounds.

The present proceedings

1. These proceedings began with a judicial review application filed on 22 June 2016.  There are four grounds in the application:

   1. I believe the IAA decision maker made errors of law, did not consider my claims and the specific problems I faced at the hands of the Sinhalese and the Tamils as I am a Tamil Burgher and considered to be an outcast.

   2. The IAA decision maker failed to consider aspects of my claims which related to the harm I could suffer at the hands of the Tamil paramilitary groups that operate in the Eastern province.

   3. The harm suffered / experienced by my father (having to close his shop / his business) was treated as something minor.  In fact he had to close his business because the Tamil paramilitary groups specifically were after him.  The IAA decision maker failed to consider if I too would / could face similar harm as my father had experienced.

   4. I am searching for a lawyer to represent me in the Federal Circuit Court.

2. I have before me as evidence the applicant’s affidavit filed with his application.  I also have before me the court book filed on 6 September 2016. 

3. Only the Minister prepared written submissions in accordance with procedural orders made by a Registrar. 

4. I invited oral submissions from the applicant today.  He told me that the Authority did not consider in detail his claims, in particular concerning problems he encountered at school and college.  He asserted, apparently for the first time, that he had been unable to obtain corroborative evidence of those problems from Sri Lanka.  The applicant also considers that the Authority did not consider properly his claims concerning the problems encountered by his father that led to the closure of his business.  Further, the applicant complains about the failure by the Authority to take into account new information submitted relating to inquiries about him made by paramilitary groups.

5. The applicant first asserted that he had been told by the delegate that no new information would be considered after the interview with the delegate.  When I pressed him on this by reference to the Authority’s record of what occurred before the delegate, he said the position was not made clear.  Finally, the applicant said that he had been looking for legal representation but had not been able to obtain it due to a shortage of funds. 

Consideration

1. There is no substance to the applicant’s assertions.  As submitted by counsel for the Minister, the Authority sets out clearly, at [6] of its reasons, what occurred before the delegate.  It appears from that paragraph that the applicant was clearly told that he needed to submit new information before the delegate’s decision.  He had ample time to do so.  There is no basis upon which I need to look behind the accuracy of the Authority’s account.

2. Secondly, it is apparent from the Authority’s reasons, in particular from [15] through to [18] that the applicant’s claims were considered and substantially accepted.  Details of his claims are recited at [7] of the Authority’s decision record. 

3. In other respects, the Minister’s written submissions deal with the grounds raised in the application.  I agree with those submissions. 

Ground 1

1. In this ground, the applicant asserts that the Authority failed to consider his claim in relation to the difficulties that he faced as a Tamil Burgher.

2. The Authority was aware of, and considered, this claim. 

3. At [7][15], in the first, second, third, fifth, sixth, seventh and final dot points, the Authority accurately summarised the applicant’s claim to fear harm on the basis of his ethnicity, by reference to his past experiences.  Those claims were accepted by the Authority at [8]-[9][16].  And they were also referred to at [13][17].

   [15] CB 430-431

   [16] CB 431

   [17] CB 432

4. However, when the Authority came to consider these claims against the statutory criteria in ss.5H and 5J of the Migration Act at [13]-[21][18], it concluded that, although the applicant had experienced “incidents of discrimination, bullying, harassment and social isolation” and that there was a real chance that he would face such harm in the future[19], the applicant did not have a well-founded fear of persecution by reason of his being a Tamil-speaking Burgher. 

   [18] CB 432-434

   [19] CB 433 [15], 434 [18]

5. The Authority did not accept that the applicant faced a real risk of physical harm[20]; or that the level of employment discrimination was such that he would not be able to work or would be denied the capacity to earn a livelihood of any kind or otherwise suffer serious harm[21]; or that he faced a real risk of serious harm by reason of his religious beliefs, whether taken alone or in combination with his Burgher ethnicity and Tamil language[22]; or that he will experience harm as a result of living in a Tamil area or due to conflicts between Tamils and Sinhalese[23].

   [20] CB 433 [16]

   [21] CB 434 [18]

   [22] CB 434 [19]

   [23] CB 434 [20]

6. The Authority considered “the totality of the treatment the applicant will experience on account of his Burgher ethnicity, including when combined with his Tamil language … and residence in a Tamil area”, but concluded that such treatment would not rise to the level of serious harm required by s.5J(4)(b) of the Migration Act[24].

   [24] CB 434 [21]

Ground 2

1. In Ground 2, the applicant contends that the Authority did not consider “aspects of his claims” pertaining to the harm that he feared at the hands of Tamil paramilitary groups.

2. The applicant appears to be asserting that the Authority fell into jurisdictional error by failing to consider certain parts of his statement dated 22 May 2016 in which he said that some armed men had come to his parents’ home to look for him in January 2016.  The Authority did consider the applicant’s claim to fear harm from paramilitary groups or the Sri Lankan authorities at [25]-[27][25], and concluded that there was not a real chance that he would become a victim of extortion, abduction, or other harm at their hands.

   [25] CB 435-436

3. The Authority was aware of those aspects of the applicant’s claims which he says were overlooked; they were summarised at [5][26]. However, those aspects of the applicant’s claims comprised “new information” as defined in s.473DC(1), that is, that it was not before the Minister when he made the decision under s.65 and the Authority considers may be relevant.

   [26] CB 429

4. Section 473DD prohibits the Authority from considering such information unless, relevantly, it is satisfied that there are exceptional circumstances to justify considering the new information. What are exceptional circumstances in a given case, and whether certain facts as found by the Authority fall within that phrase, there being different conclusions reasonably open to the Authority, are questions of fact for it[27], since the statutory phrase is a simple, non-technical one that is used in its ordinary English sense[28].

   [27] see, for example, Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J (as his Honour then was); Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450-451 [25]-[27] per Gleeson CJ, Gummow and Callinan JJ, 477-478 [108] per Hayne J

   [28] compare An v Minister for Immigration (2007) 160 FCR 480 at 482 [7] per Lindgren J, 496 [82] per Emmett J; Maan v Minister for Immigration (2009) 179 FCR 581 at 591 [51] per Dowsett, Greenwood and Collier JJ

5. In the present case, the applicant offered one reason as to why he considered there to exist exceptional circumstances as to why the Authority should consider those parts of his statement pertaining to the incident in January 2016, namely, that the incident occurred after his interview with the delegate in December 2015[29].  The Authority did not consider this to be an exceptional circumstance, since: the applicant did not explain why he did not raise his new claim prior to the delegate’s decision on 3 May 2016; the delegate explained to the applicant that, if he did not give to the Department information pertaining to all of his claims, he may not have another chance to do so; the delegate explained to the applicant, at the conclusion of the interview, that, if further information was to be provided to the Department before a decision was made, it would be taken into account; and the applicant was represented by a migration agent (including during the interview before the delegate), whom he instructed to provide submissions and the applicant’s statement to the Authority[30].

   [29] CB 422 [9]

   [30] CB 430 [6]

6. The Authority’s analysis at [6][31] does not give rise to any jurisdictional error. It was entitled to have regard to the factors it listed in concluding that it could not reach the state of satisfaction described in s.473DD(a). That is especially so when the applicant advanced only one argument as to why there existed exceptional circumstances for the Authority to consider the new information.

   [31] CB 430

Ground 3

1. In this ground, the applicant argues that the Authority failed to consider whether he faced similar harm to that which his father faced.

2. This ground is largely an appeal to the merits.  At [13][32], the Authority observed that the applicant “fears facing similar problems to those experienced by his father in running his business, and says that it is not possible to advance his career or progress his life”.  Having referred to the claim, the Authority went on to find, at [27][33], that, while “it was the extortion that led [the applicant’s] father to close the business, this does not lead to a conclusion that the applicant himself faces a real chance of similar harm in the future”, the applicant “not [being] a businessman or shop owner”.

   [32] CB 432

   [33] CB 436

Ground 4

1. This ground is simply a reference to the applicant’s intention to look for legal representation.

2. In his closing submissions, the applicant referred to the fear he faces as a member of the Burgher community in Sri Lanka should he be required to return there.  In his original claim for protection, the applicant identified his family name as Portuguese, and country information referred to the Burgher community as comprising descendants from former Portuguese and Dutch colonists.  The applicant agreed with me that in fact his family name is as much English as Portuguese, and he agreed that his heritage is predominantly English.  It was because of his links to the former colonial masters of Sri Lanka that the applicant believes he encountered problems at school. 

3. I explained to the applicant his rights of appeal and the Minister’s power of intervention. 

4. The applicant has not established any jurisdictional error in the decision of the Authority.  I will accordingly order that the application for judicial review be dismissed.

5. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,300.  The applicant did not wish to be heard on costs.  The amount sought by the Minister is significantly below scale.

6. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,300.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 2 February 2017