BQJ18 v Minister for Home Affairs

[2019] FCCA 970

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQJ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 970

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – application for a Safe Haven Enterprise visa – whether the IAA erred in failing to consider “new information” pursuant to s.473DD – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.473DD, 473FB(5)

Cases cited:

Tickner v Chapman (1995) 57 FCR 451

Minister for Immigration v MZYTS (2013) 230 FCR 431

AYY17 v Minister for Immigration [2018] FCAFC 89

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

Applicant: BQJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 892 of 2018

Judgment of: Judge Humphreys

Hearing date: 9 April 2019

Date of Last Submission: 16 April 2019

Delivered at: Parramatta

Delivered on: 18 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Karp

Solicitors for the Applicant: Rasan Selliah and Associates

Counsel for the Respondents: Mr Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ in the nature of certiorari is issued calling up the record of the Immigration Assessment Authority and quashing the decision made on 5 March 2018.

2. A writ in the nature of prohibition is issued restraining the First Respondent from acting upon or giving effect to the decision of the Second Respondent of 5 March 2018.

3. A writ in the nature of mandamus is issued requiring the Immigration Assessment Authority to determine the review application for a Safe Haven Enterprise Visa.

4. The First Respondent is to pay the costs of the Applicant in the amount of $7467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 892 of 2018

BQJ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a Sri Lankan national of Tamil ethnic background. He grew up in an area under the control of the Liberation Tigers of Tamil Eelam (‘LTTE’).

2. The applicant’s claims are as follows:

   a)In 1990 his family home was destroyed during shelling and bombing of the area by the Sri Lankan army;

   b)In 2004, the applicant’s cousin was abducted and killed by the Sri Lankan army;

   c)In 2006 the applicant’s family house was set alight by Sinhalese ethnic people. The applicant and his family then fled to a refugee camp in Trincomalee.

   d)The applicant then went to his uncle’s house from an internally displaced person’s camp. His uncle’s house was in an LTTE controlled area.

   e)In 2008, while at his uncle’s house, the applicant was ‘volunteered’ by the LTTE to assist in digging bunkers. He claims he did this for 6 days, and that he also performed some unarmed border security patrols for the LTTE.

   f)The applicant claims this is his only involvement with the LTTE.

3. In 2009, at the end of the war, the applicant was again placed in an internally displaced persons camp. The applicant claims that whilst there, he was forced to confess being with the LTTE during the war.

4. In May 2009, the applicant claims he was taken from the camp to Boosa Prison, and kept there for 1 year. During his time in Boosa prison, the applicant claims to have been tortured and made to confess that he was involved in the LTTE as a combatant.

5. In 2010, following the applicant’s release from Boosa prison, he was taken to a youth training and rehabilitation centre, where he says he was detained for one and a half years. He was released in September 2011 and was taken to the Muthur area.

6. The applicant claims 2 weeks after his arrival, Criminal Investigation Department police officers (‘CID officers’) came to his home and interviewed him. The CID officers told him not to leave the area, and instructed the applicant to report once a month to a nearby army camp.

7. In November 2012, the applicant claims he was arrested and falsely accused of placing a poster on a wall that supported the LTTE. The applicant claims that whilst in custody, he was repeatedly beaten and his chest and arms were burnt with cigarettes.

8. He was released after 3 days, after being told by CID officers that they had found the person responsible for the placing of the poster on the wall.

9. In early February 2013, the applicant claims he was detained for a further 2 days and interrogated by CID officers. On 8 February 2013, the applicant stated that he was attacked by 3 men in civilian clothes. He was beaten unconscious and left on a bridge. The applicant was accused by the men who beat him of trying to revive the LTTE.

10. The applicant states that he left Sri Lanka in April 2013 illegally by boat, and arrived at Christmas Island on 17 April 2013.

11. The applicant stated that he fears to return to Sri Lanka as he will be detained, tortured and possibly killed as he is perceived as being LTTE.

Documents before the Court

1. The Court has before it, and most relevantly, the following documents:

   a)The Court Book;

   b)The Immigration Assessment Authority (‘IAA’) decision;

   c)Further Amended grounds of appeal by the applicant;

   d)Applicant’s initial and further submissions;

   e)Respondent’s initial and further submissions

The IAA decision

1. The IAA decision runs to some 25 typed pages.

2. After setting out the material before the delegate, the reviewer refused to admit fresh material that had been received as the reviewer was not satisfied that there exceptional circumstances pursuant to s.473DD of the Migration Act 1958 (‘the Act’) to do so, or to exercise a discretion to do so under s.473FB(5) of the Act. I note that the applicant does not submit any jurisdictional error was committed in this regard.

3. Paragraph 11 of the IAA decision sets out the claims which I have extracted the most relevant portions from above. Paragraphs 12 and 13 set out the relevant law. Paragraphs 15-58 deal with the assessments of the claims of the applicant by the reviewer with respect to his application for a Safe Haven Enterprise Visa (‘SHEV’).

4. The reviewer accepted that the applicant was displaced from his home on a number of occasions due to the war (see paragraph 15). The reviewer accepted that the applicant’s family suffered deaths during the war, including his cousin, at the hand of the Sri Lankan army (see paragraph 16).

5. It was accepted that whilst living with his uncle, the applicant was forced to ‘volunteer’ for the LTTE for a period of 6 days to dig bunkers, and that he did some low level patrolling work (see paragraph 19).

6. At paragraph 22, the reviewer was not satisfied the applicant was imprisoned as claimed, in Boosa prison in 2009, before being sent to a rehabilitation centre. The reviewer considered the applicant’s claims of being tortured in prison were contrived to further enhance his suggested involvement with the LTTE.

7. At paragraph 23, the reviewer did not accept that the applicant was imprisoned in Boosa for being an LTTE combatant. The reviewer found it plausible that the applicant was detained at a rehabilitation camp as claimed, as he had admitted being LTTE whilst in an internally displaced person’s camp.

8. At paragraph 24-25, the reviewer accepted the applicant was detained in a rehabilitation camp and was released in September 2011.

9. At paragraph 25, the reviewer accepted that for some period after his release, the applicant was required to report to a Sri Lankan army camp.

10. At paragraph 25, the reviewer found that the claim that the applicant had a 2 year reporting period placed upon him was not credible given his profile, and that the applicant was not subject to any reporting conditions in that he did not seem to be of any real interest to authorities as a suspected LTTE supporter.

11. At the same time, the reviewer was satisfied as to the two further incidents where he was detained following his release from the rehabilitation camp which has been described above. It was also accepted that the applicant had been visited by CID officers at his home.

12. The reviewer accepts that in November 2012 the applicant was wrongly accused of placing a pro-Tamil tiger poster on a wall. The reviewer accepted that the applicant was held for a period of time, tortured and that he had his chest and arms burnt by a cigarette.

13. At paragraph 27, the reviewer accepts the applicant was detained for a second time in February 2013 but was unable to reconcile if the applicant was of continuing interest to the CID authorities, as he was released.

14. At paragraph 28, the reviewer accepts the applicant was beaten by three men in civilian clothing in early February 2013. The reviewer noted the claim by the applicant that the persons who beat him were CID officers. The reviewer however, rejected the claim that the applicant was threatened with being sent back to Boosa prison, and found that the persons who attacked him were not CID officers. The reviewer also found that the applicant was not a person of adverse interest to authorities at that time.

15. At paragraph 32, the reviewer found that if the applicant returned to Sri Lanka now, he was not at risk of having to undergo further rehabilitation based on country information provided by the Department of Foreign Affairs and Trade (‘DFAT’).

16. At paragraph 36, the reviewer noted the changes to Sri Lanka following the election of the Sirensa government.

17. At paragraph 40, the reviewer concluded they were not satisfied that there was a real chance that the applicant would suffer harm because of his Tamil ethnicity, and/or his origin from and residence in a former LTTE controlled area in the Eastern province, or because of his, or his family’s, interactions with LTTE, or because of his LTTE related work, or because of his previous interactions with Sri Lankan authorities including interrogations and detention in rehabilitation centres.

18. At paragraphs 41-57, the reviewer dealt with the issues of the applicant returning to Sri Lanka as a person who departed the country illegally. The reviewer accepted that the applicant would be detained upon arrival, charged and put before a Magistrate. The reviewer accepted that the applicant could be detained for a few days in a jail in overcrowded and unsanitary conditions before being released, but that such detention does not amount to serious harm.

19. At paragraphs 59-63, the reviewer dealt with the complimentary assessment issues and concluded that there is no real risk that the applicant would be subjected to mistreatment or torture whilst imprisoned or detained, and that thus there was no real risk that the applicant would suffer serious harm.

Grounds of Appeal

1. There are two grounds of appeal that were initially relied upon.

2. The first was that the IAA failed to conduct its review pursuant to s.473CC, in that in particular that after the applicant left Sri Lanka the CID came to his home and took his passport. Further, it was relied upon that the reviewer failed to properly consider that the applicant was a member of the LTTE and admitted that fact during interrogation.

3. The initial second ground of appeal, that the applicant’s claim that he had been placed on reporting conditions for 2 years was not credible having regard to his profile, was abandoned by the applicants counsel in a further Amended Application. This ground was later abandoned and with leave of the Court, was replaced with the following:

   The IAA erred in that it failed to complete the exercise of its jurisdiction by failing to address an issue that clearly arose on the IAA’s findings:

   (a)The IAA found at CB 215 (26) that the applicant had been detained and severely mistreated after a pro LTTE poster and flag had been placed on a temple in the village

   (b)The IAA also found that he had wrongly been accused of responsibility for placing the poster on the temple and had been released when the person responsible had been found

   (c)The issue that arose was why the applicant was suspected and detained and mistreated prior to the authorities investigations being completed, there being no evidence of any other person being detained prior to discovery of the real culprit.

Consideration of the First Ground of Appeal

1. In written submissions made to the court, it was submitted that the reviewer committed jurisdictional error in that they failed to engage in an active intellectual process as defined in Tickner v Chapman[1] and Minister for Immigration v MZYTS.[2] It was argued that the failure to consider whether or not the applicant was ‘a member’ of the LTTE could realistically make a difference.[3]

   [1] Tickner v Chapman (1995) 57 FCR 451, 461, 495.

   [2] Minister for Immigration v MZYTS (2013) 230 FCR 431 at [38].

   [3] See Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]-[49].

2. It was asserted that had the IAA found that the applicant was a ‘member’ of the LTTE, rather than simply having done some work for it, it may have found that his profile with the Sri Lankan security forces was such that he may well have faced imprisonment in Boosa in 2009, and that there could be continued interest in him by the CID in the following years. This claim cannot be substantiated.

3. During the course of the written decision and reasons of the IAA, the reviewer used various terms when referring to the applicant’s involvement with the LTTE. For example, at paragraph 22 the reviewer noted that the applicant had already ‘worked’ for the LTTE. Later on in the same paragraph, the reviewer refers to a claimed admission by the applicant that he was a ‘LTTE member’. The word ‘member’ is also used in paragraphs 25 and 28.

4. The reviewer found, at paragraph 39, that the applicant was not a LTTE member.

5. The applicant had made admissions, and these were accepted by the reviewer, that the applicant had worked for the LTTE for a period of 6 days digging bunkers, and had then done some unarmed patrolling.

6. When reviewed on the totality of the decision, I am reasonably satisfied that the reviewer turned their mind to the status of the applicant in relation to the LTTE. The IAA made a positive finding that based on the available evidence, the applicant would not be of interest to Sri Lankan authorities were he to be returned. This was on the basis that he was not a leader in the LTTE movement or had continued to support the LTTE movement subsequent to the defeat of the LTTE in 2009.

7. It was argued that ‘membership’ entailed a commitment to the cause of the LTTE. This would have resulted in a higher profile with Sri Lankan Authorities. I am not satisfied that this was not considered by the reviewer during the course of their decision.

8. What is clear is that at paragraph 40, the reviewer considered the totality of the evidence and formed a view that ‘because of his previous interactions with Sri Lankan authorities, including interrogations and detention at rehabilitations centres’, the reviewer was not satisfied the applicant would suffer harm if returned to Sri Lanka.

9. I am satisfied that paragraph 40 effectively disposes of the applicant’s claim that there was not adequate consideration of his status within the LTTE.

Consideration of the Second Ground of Appeal

1. The amended Ground 2 set out above was filed following discussion of the issue during the initial hearing of the matter. To the extent required, leave was granted to amend the application and for both parties to make further written submissions on the issue.

2. In submissions filed with the further amended application, the Court’s attention was drawn to the decision in AYY17 v Minister for Immigration[4] to the effect that there is a difference between a claim and an issue. The former arises from an assertion by the applicant. The latter is a matter that needs to be resolved.

   [4] AYY17 v Minister for Immigration [2018] FCAFC 89.

3. It was submitted that an issue may arise from the decision makers finding of fact. In this case, the IAA found that the applicant was arrested and held by CID officers for a period of 3 days in November 2012. During this time, the applicant was interrogated and mistreated by being burnt on the chest and arms with cigarettes. He was only released when the actual perpetrator was identified.

4. The IAA concluded that the applicant was released as he was no longer of any interest to authorities. What was not identified by the IAA is the issue as to why authorities suspected the applicant of engaging in pro LTTE activities. Counsel for the applicant submits this was required to be considered by the IAA as part of its jurisdictional task. Had it done so, the result of the review could have been realistically different.[5]

   [5] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [4].

5. Put another way, if the applicant had a low profile with authorities with regard to the applicant’s ‘continuing’ support of the LTTE, as found by the IAA, why the authorities would have suspected him, arrested him, held him for 3 days and engaged in such clear mistreatment, is a question that remains unanswered. Given the finding of this incident, I am not satisfied the IAA has engaged intellectually with the claims of the applicant. Failure to engage intellectually with this material in my view grounds jurisdictional error.

6. If I am wrong in the above conclusion I am also of the view that to find this incident and mistreatment occurred, but then hold that the applicant was not of a profile for suspected support for pro-LTTE activities to attract continued interest with authorities lacks an evident and intelligible justification.[6]

   [6] Minister for Immigration v Li (2013) 297 ALR at [76].

7. Accordingly, I am of the view that jurisdictional error has been made out.

8. The application is allowed and I make orders as set out at the beginning of this judgment.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate: 

Date:  18 April 2019