BSF17 v Minister for Immigration
[2020] FCCA 348
•21 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSF17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 348 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of the Immigration Assessment Authority (Authority) affirming decision not to grant safe haven enterprise visa – whether Authority considered all of the applicant’s claims – whether the Authority properly applied the “real chance test” – whether Authority considered a particular claim – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3 |
| Cases cited: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 |
| Applicant: | BSF17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1207 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 13 February 2020 |
| Date of Last Submission: | 13 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2020 |
REPRESENTATION
| Applicant in person, assisted by an interpreter |
| Solicitors for the First Respondent: | Ms K Morris of Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1207 of 2017
| BSF17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Sri Lanka, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).
Claims for protection
The applicant stated his claims for protection on a number of occasions. It would be convenient, however, to set out the claims the applicant made in the statutory declaration that formed part of his application for a SHEV;[1] and these may be summarised as follows:
[1] CB61-65
a)The applicant is a Tamil, and a Hindu. He was born in a village in the Batticaloa District in Eastern Province, Sri Lanka.
b)Sometime in 2002, the Liberation Tigers of Tamil Eelam (LTTE) conscripted the applicant’s brother. This occurred when his brother was returning from school. From 2002 to 2004 the applicant’s family did not see the applicant’s brother because he was with the LTTE.
c)Sometime in 2004 when “Karuna” and his loyal supporters defected from the LTTE, the applicant’s brother returned home. He said he had left the LTTE.
d)The following day, LTTE cadres came to the applicant’s family home looking for the applicant’s brother. The applicant’s brother was in hiding because he was too afraid to stay at home. The LTTE took the applicant’s father away to a LTTE controlled area where they detained him. The LTTE threatened to kill the applicant’s father unless he handed over the applicant’s brother.
e)The applicant’s father was released after the applicant’s brother handed himself to the LTTE. The LTTE pardoned the applicant’s brother, and he was allowed to remain in the LTTE. The applicant does not know the rank his brother held within the LTTE, but the applicant heard his brother was in charge of 25 LTTE cadres.
f)Approximately three weeks after the applicant’s brother handed himself to the LTTE, he escaped once again and came home. The LTTE came for the applicant’s brother at their home and, after escaping to the jungle, the LTTE captured him. The LTTE severely beat him, and he was taken to a LTTE remand prison.
g)The applicant’s brother escaped from the LTTE a third time. LTTE cadres again came to the applicant’s family’s home, but the applicant’s brother escaped. The LTTE threatened the applicant’s family that if the applicant’s brother did not come with them, one other family member would need to go with the LTTE to fight the Sri Lankan forces. The LTTE insisted that they take the applicant’s sister.
h)The LTTE kept coming to the applicant’s home in search of the applicant’s brother. As time passed, the situation worsened, and the LTTE eventually withdrew from the applicant’s area. The applicant’s brother returned home.
i)The army and the CID (that is, the Criminal Investigation Department) became aware the applicant’s brother had been in the LTTE; so they began to target him by frequently coming to the applicant’s family’s home to search for him.
j)Sometime in 2006 or 2007, the applicant’s brother was given an ID card by the IOM (that is, the International Organisation for Migration), and no charges had been laid against him for having served in the LTTE. The IOM provided some financial assistance to the applicant’s brother to recommence his life. The applicant’s brother opened a small takeaway food outlet on the premises of the applicant’s parents’ home.
k)In early 2012 unknown armed men who spoke both Tamil and Sinhala came in search of the applicant’s brother. The applicant’s brother, fearing the armed men would harm him, kept moving from one place to another. Because the armed men continued to search for him at the applicant’s family home, the applicant’s parents made plans to send him to India. The applicant’s brother departed Sri Lanka illegally for India.
l)After the applicant’s brother left Sri Lanka, unknown armed men who spoke both Tamil and Sinhala kept coming to the family home in search of the applicant’s brother. On one night in August 2012, the armed men, when searching for the applicant’s brother, saw the applicant and assaulted him. They threatened to take the applicant away and shoot him if the applicant’s brother did not hand himself in.
m)The armed men returned about 25 days later, but on this occasion they asked for the applicant. The applicant hid under his sister’s bed, and the armed men were unable to find him. After the armed men left, the applicant did not stay at home. He stayed at the shop premises where he worked, but the armed men had looked for the applicant there, and also at his home. The applicant had to move to several places to avoid being targeted by the armed men. Due to these problems, the applicant decided to leave Sri Lanka.
n)Tamil paramilitary groups continue to operate in Sri Lanka, and they work closely with the Sri Lankan government. The applicant believes that the armed men who spoke both Tamil and Sinhala were members of a Tamil paramilitary group. The applicant fears that if he returns to Sri Lanka he will be harmed by these groups who would seek revenge because they have been unable to find the applicant’s brother who they know was a member of the LTTE.
o)The applicant believes he could be imprisoned because he left Sri Lanka illegally, and that the authorities could harm him for having made protection claims in Australia.
Authority’s reasons
The Authority accepted the LTTE forcibly recruited the applicant’s brother in 2002; the applicant’s brother attempted to leave or escape from the LTTE; the LTTE imprisoned him, and, while the applicant’s brother was missing, the LTTE visited the applicant’s family, detained the applicant’s father for two days, and threatened to take the applicant’s sister; and that, after his last escape, the applicant’s brother remained in hiding until the LTTE left the local area and the applicant’s brother returned to his home.[2] The Authority accepted as plausible the applicant’s claims that in 2005 or 2006 his brother was assisted by an IOM program to re-establish himself; as a result the applicant’s brother was not charged for his past LTTE connection.[3] The Authority, however, found there is not a real chance the applicant would be harmed by the authorities because of his brother’s LTTE connection. The Authority relied on the applicant’s or other family members not having come to any adverse attention after the army and the CID became aware of the applicant’s brother’s LTTE connection, and the applicant’s not claiming he feared harm from the authorities because of his brother’s LTTE links.[4]
[2] CB154, [11]
[3] CB154, [12]
[4] CB154, [12]
The Authority also accepted as plausible the applicant’s claim that a paramilitary group harassed him and his brother in 2012. The Authority did so because country information indicated that a number of splinter groups developed from disputes within the LTTE, and at his entry interview the applicant mentioned that two of these groups, Karuna and Pillayan, caused trouble for the applicant’s brother.[5] The Authority accepted the applicant has a subjective fear of harm from paramilitary groups, and there are reports of ongoing kidnappings and “white van” abductions, but the Authority was not satisfied the country information supports the applicant’s fear as being well founded.[6] The Authority identified and set out the effect of country information on which it relied for not being satisfied the applicant’s fear of harm from paramilitary groups is well founded.[7]
[5] CB154-155, [13]
[6] CB155, [14]
[7] CB155-157, [15]-[20]
The Authority considered whether the applicant would experience harm as a Tamil from having lived in a former LTTE controlled area. The Authority considered the “current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka” which the Authority noted “provides guidance on the profiles of people at risk of harm and likely to be in need of protection”.[8] On the basis of the information contained in that document, the Authority accepted that being of Tamil ethnicity alone does not give rise to protection needs, nor does a person’s being from a former LTTE controlled area. The Authority referred to the re-introduction of household registration in parts of the Batticaloa district in March 2016, but the Authority noted the related monitoring is restricted to selected households of people who lived in the Vanni area during the war. The Authority was not satisfied there is a real chance the applicant would face any harm as a Tamil or because he is from an area formerly controlled by the LTTE.[9]
[8] CB157, [21]
[9] CB157, [21]
The Authority next considered whether the applicant faced a real chance of harm because the applicant lacked Sinhala language skills,[10] and because on his return he would be considered a failed asylum seeker who departed Sri Lanka illegally.[11] The Authority found country information did not indicate there is a real chance that the inability to speak Sinhala would lead to any mistreatment;[12] and although the Authority accepted the applicant would be considered as a failed asylum seeker who had departed Sri Lanka illegally and, for that reason, on his return to Sri Lanka he would be questioned by police, detained until brought before a magistrates court at the first available opportunity, and likely to be released on bail, the Authority was not satisfied there is a real chance the applicant would face any harm as a returning failed Tamil asylum seeker.[13] Given these findings, the Authority was not satisfied the applicant was a “refugee” within the definition given in s.5H(1) of the Act.
[10] CB157, [22]
[11] CB157-159, [23]-[31]
[12] CB157, [22]
[13] CB159, [31]
Finally, the Authority considered whether the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Authority repeated the effect of the findings it had made when considering whether the applicant was a “refugee”. In addition, however, the Authority considered whether the prison conditions the applicant was likely to experience while waiting to appear before a magistrate on the first available time would constitute “significant harm” as that expression is defined in s.36(2A) of s.5 of the Act. The Authority was not satisfied it would constitute such harm.[14] The Authority concluded there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.[15]
[14] CB160, [37]
[15] CB160, [39]
Grounds of application
The application contains the following two grounds:
1.Ground 1 – The IAA did not consider all my claims and failed to consider relevant considerations and did not apply the forward looking real chance test thereby committing legal error.
Particulars
a.The IAA accepted that my brother was a member of the LTTE [11].
b.The IAA failed to consider that I was at risk of facing a real chance of serious harm due to my membership of a particular social group on account of my brother’s involvement in the LTTE.
2.Ground 2 – The decision is infected with the kind of error described in SZTAL and therefore no decision should be made until SZTAL is brought to finality in the High Court of Australia. The judgement [sic] will be delivered in May 17 and this may affect the applicant’s appeal as at [37] the IAA states that though I may be imprisoned there is no evidence of an “intention” to inflict severe pain or suffering or cause extreme humiliation, hence I would not face significant harm.
At the hearing before me the applicant appeared without legal representation, but an interpreter assisted him. After I explained to the applicant the purpose of the hearing, and the procedure that would be followed, and after I identified the material that had been filed by the parties, I invited the applicant to tell me why the Court should set aside the Authority’s decision. The applicant said he had only one issue; and that is that the government that is currently in power in Sri Lanka is the government that was in power when he left Sri Lanka. The applicant said that the same paramilitary groups that operated while the government was previously in power continue to do so under the current government; and he has become more frightened now that the old government is back in power.
These submissions do not disclose any jurisdictional error. They are an appeal to the merits of the claims the applicant made in support of his application for protection. As I explained to the applicant, this Court does not have jurisdiction to determine whether persons such as the applicant are entitled to protection.
Ground 1
I then asked the interpreter to interpret ground 1 of the application, after which I asked the applicant whether he wished to say anything in relation ground 1. The applicant said that the Authority found there are no problems in Sri Lanka; but there are problems. The applicant referred to reports from last year that two police constables had been shot by unknown persons. The applicant also referred to a report of a bomb blast caused by paramilitary groups. The applicant said paramilitary groups are still functioning, and government authorities support them.
Again, these submissions address the merits of the applicant’s claims for protection. They do not disclose any jurisdictional error.
I then turned to ground 1 as formulated in the application. It makes a number of claims. The first is the Authority failed to consider all of the applicant’s claims. The ground, however, does not identify the claims the Authority is said not to have considered. For that reason alone it discloses no jurisdictional error. In any event, it is not apparent from the material before me that there was before the Authority a claim for protection that it did not consider.
Second, the ground claims the Authority did not apply the “forward looking real chance test”. The ground does not identify the meaning to which it attaches to the expression “forward looking real chance”; but I take it to be a reference to the requirement that for a person to be a “refugee” within the meaning of s.5H(1) of the Act the person must have a “well-founded fear of persecution” which, in turn, under s.5J(1)(b) of the Act requires that “there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in” s.5J(1)(a), namely, “race, religion, nationality, membership of a particular social group or political opinion”. The notion of “real chance” in s.5J(1) of the Act may be taken to pick up the notion of “real chance of persecution” that was explained by the High Court in Minister for Immigration & Ethnic Affairs v Guo:[16]
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
[16] Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
In short, this part of ground 1 claims the Authority did not consider whether the applicant faced a real risk of serious or significant harm for any of the reasons the Authority identified the applicant feared would occur to him if he were to return to Sri Lanka. I do not accept this claim. The Authority applies the expression “serious harm” throughout its reasons when assessing the applicant’s claims of fear of harm; and it is clear the Authority used that expression to assess what will occur to the applicant in the reasonably foreseeable future if he were to be returned to Sri Lanka.
Third, ground 1 claims the Authority failed to consider whether the applicant faced a real chance of serious harm because of his brother’s membership of a particular social group because of the applicant’s brother’s involvement in the LTTE. I do not accept that claim. As I have already noted, the Authority found there is not a real chance the applicant would be harmed by the authorities because of his brother’s LTTE connection; and it relied on the applicant’s or other family members’ not having come to any adverse attention after the army and the CID became aware of the applicant’s brother’s LTTE connection, and the applicant’s not claiming he feared harm from the authorities because of his brother’s LTTE links.[17]
[17] CB154, [12]
Ground 1, therefore, fails.
Ground 2
Ground 2 was interpreted to the applicant but he did not understand it. The ground refers to a time when an appeal to the High Court was pending from the judgment of the Full Federal Court in SZTAL v Minister for Immigration and Border Protection.[18] The principal question in the appeal was whether the notion of intention contained in the expressions “intentionally inflicted” and “intended to cause” that are respectively contained in the definitions given in s.5(1) of the Act of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” (which form part of the definition of “significant harm” in s.36(2A) of the Act) was restricted to a person’s acting or failing to act with the desire, aim, or purpose to inflict “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”; or whether the notion of intention also includes acts or omissions undertaken with the knowledge that they would result in “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” even though the person who acted or did not act had no desire, aim, or purpose to inflict such punishment. The High Court determined the appeal in 2017 where a majority held that the notion of intention was restricted to acting or not acting with the desire, aim, or purpose to inflict “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”.[19]
[18] SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69
[19] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
The Authority, therefore, made no error to the extent it found that the applicant’s exposure on his return to Sri Lanka to poor prison conditions would not amount to “significant harm” because “the evidence does not indicate there is an intention to inflict pain or suffering or severe pain or suffering or cause extreme humiliation”.[20] Ground 2, therefore, also fails.
[20] CB160, [37]
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed.
At the conclusion of the hearing I indicated that I would give judgment on 21 February 2020. The applicant said he did not wish to attend Court when I deliver my judgment. I then invited submissions on costs. The Minister submitted that costs should follow the event, and that those costs should be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth), namely, $7,206. The applicant made no submissions against my making an order for costs if he were to lose the case.
There is no reason why costs should not follow the event. I propose, therefore, to also order that the applicant pay the Minister’s costs, and that those costs be set in the amount of $7,206.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 21 February 2020
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