BSJ17 v Minister for Immigration

[2019] FCCA 1661

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSJ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1661

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made a jurisdictional error in that it failed to consider that the applicant would be subject to harm for opposing a political party in Sri Lanka – whether the Authority misapplied the well-founded fear test – whether natural justice denied – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473DA, 473DB, 473DD, 473DE, 473GB

Cases cited:

AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129
BVD17 v The Minister for Immigration and Border Protection [2018] FCAFC 114
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
MZAFZ v The Minister for Immigration and Border Protection (2016) 243 FCR 1

Applicant: BSJ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1212 of 2017

Judgment of: Judge Humphreys

Hearing date: 17 June 2019

Date of Last Submission: 17 June 2019

Delivered at: Parramatta

Delivered on: 17 June 2019

REPRESENTATION

Applicant appeared in person.

Solicitors for the Respondents: Mr Valliappan, DLA Piper

ORDERS

1. The First Respondent to be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Applicant to pay the First Respondent’s cost fixed in the amount of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1212 of 2017

BSJ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a Tamil Hindu from Sri Lanka. The applicant left Sri Lanka illegally and arrived by boat on the Cocos Islands on 8 September 2012. On 11 June 2016, the applicant lodged an application for a Safe Haven Enterprise visa. A delegate of the Minister for Immigration and Border Protection (“the delegate”) refused the visa application on 6 February 2017.

2. The applicant then sought review by the Immigration Assessment Authority (“the Authority”). On 24 March 2017, the Authority affirmed the decision of the delegate to refuse the Safe Haven Enterprise visa. The applicant now seeks judicial review of that decision.

The Applicant’s Claims

1. These are set out in paragraph 6 of the Authority decision and may be summarised as follows:

   ·The applicant is a Tamil Hindu from Batticaloa District in the Eastern Province of Sri Lanka.

   ·Batticaloa was at one time controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) and later by the Tamil Makkal Viduthalai Pulikal (“TMVP”).

   ·In 2008, the applicant was at a party when two people tried to rob a nearby house. One robber was apprehended, but one escaped. The robber who escaped later returned with armed people and there was a fight. The applicant later found out that the armed people who returned with the robber who had escaped were from the TMVP.

   ·The applicant went with a friend to the People’s Liberation Organisation of Tamil Eelam (“PLOTE”). The applicant asked for protection. PLOTE officials agreed to this as long as the applicant would stand for election in upcoming local elections.

   ·In 2012, PLOTE aligned with the Tamil National Alliance (“TNA”). The applicant assisted in campaigning in local elections. During this time, the applicant was assaulted by TMVP supporters. The applicant complained to the Human Rights Commission and this attracted adverse attention by the TMVP.

   ·Since departing Sri Lanka, TMVP people have come to the applicant’s house four times asking for him and threatened to shoot him.

Immigration Assessment Authority Decision

1. At paragraph 9 of the decision, the Authority accepted the applicant’s identity as claimed and that he is a Tamil Hindu from Eastern Province. At paragraph 12 of the decision, the Authority was satisfied that the applicant had no imputed links with the LTTE. At paragraph 13 of the decision, the Authority accepted the applicant was a credible witness and that his claim of standing as a candidate for PLOTE was plausible. The Authority accepted that the applicant was assaulted by TMVP supporters and accepted the applicant’s claims in relation to events in 2008 up until the election in 2012.

2. At paragraph 16 of the decision, the Authority did not accept the applicant’s home was visited after 2012 by the TMVP or that he was threatened. In paragraph 18 of the decision, based on country information, the Authority was not satisfied that the TMVP had been targeting TNA supporters with which PLOTE had aligned itself since the 2015 election. The Authority noted the minor role of the applicant in the elections and was not satisfied he was now of any interest to the TMVP or any other group.

3. In paragraph 23 of the decision, the Authority concluded that the applicant would have no difficulties returning home and resuming work in the family fishing business. Paragraphs 26 to 35 of the decision, the Authority considered issues associated with the applicant’s illegal departure from Sri Lanka but was of a view that although he could be detained upon arrival in Sri Lanka, put before the Courts as an illegal departee and possibly held in a jail for a very short period of time, this would not constitute serious harm.

4. In paragraph 36 of the decision, the Authority concluded that the applicant did not meet the requirements for protection under s 36(2)(a) of the Migration Act 1958 (“the Act”). In paragraphs 37 to 44 of the decision, the Authority dealt with complementary protection considerations. For similar reasons as outlined above, the Authority concluded the applicant did not meet the requirements for complementary protection under section 36(2)(aa) of the Act.

Grounds of Appeal

1. The applicant set out three Grounds of Appeal which are as follows:

   (1) The IAA made a jurisdictional error in that it failed to consider that the Applicant by opposing the TMVP, a party engaged in violent methods, will be subject to harm.

   (2) The IAA misapplied the well-founded fear test in that it failed to consider on return to power, the TMVP will resort to violence again.

   (3) The IAA erred in law with the error being a jurisdictional error of natural justice in that the IAA did not put to the Applicant information which subsequently formed part of the whole of the decision to refuse a visa.

Consideration

1. Ground 1 fails at a factual level. Paragraphs 13 to 18 of the Authority decision contain a detailed outline of the applicant’s history regarding concerns with his political activity and interaction with the TMVP. At paragraph 18 of the decision, the Authority concluded that:

   …Given the passing of time and changed circumstances, he is not now of any interest to the TMVP or any other political or paramilitary group…

   The Authority further noted:

   The applicant has not claimed and there is no evidence before me that he intends any resumption of his political activities should he return to Sri Lanka.

2. The above findings, in my view, were open to the Authority on the evidence before it. No jurisdictional error has been committed by making conclusions that were adverse to the applicant. This ground cannot succeed.

3. Ground 2 must also similarly fail on a factual level for the same reasons as Ground 1. The Authority, in paragraph 18 of the decision, concluded that upon return, the applicant would not be of interest to the TVMP. Given the applicant’s minor role and the passing of time, the Authority was entitled to consider that he was not at risk if the TVMP came back to power at some time in the future. This conclusion does not constitute jurisdictional error. This ground cannot be sustained.

4. Ground 3 alleges a failure of natural justice by not putting to the applicant material that subsequently formed part of, or formed the whole of the decision, to refuse the visa. No particulars are provided in the application for review as to what information was not put to the applicant. The fast track assessment is not subject to the normal rules of natural justice. It is subject to a statutory scheme which is set out in s 473DA of the Act onwards.

5. Reviews are to be done on the papers without accepting new information and without interviewing the referred applicant (see s 473DB of the Act). New information may only be considered by the Authority in exceptional circumstances which are further set out in s 473DD of the Act. Generally, this information must be personal to the applicant and was not capable of being given to the delegate at the time the delegate made their decision.

6. I am not satisfied that the Authority considered any new information in terms of the material outlined under s 473DD of the Act and therefore, the provisions of s 473DE of the Act were never enlivened. Up to date country information is not new information which is required to be referred to the applicant for comment. The grounds of appeal contained within the application to the Court, accordingly, must fail.

7. One other matter, however, remains for consideration. In the first respondent’s submissions, the following appears:

   In compliance with his model litigant obligations, the first respondent seeks to bring to the Court’s attention that a s 473GB certificate was issued in the matter. This certificate was not disclosed to the applicant by the Authority. In this respect, the first respondent notes that special leave has been granted for the appeal of BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 which will consider the Authority’s obligations in respect of s 473GB certificates. Notwithstanding, it is the first respondent’s position that no procedural fairness obligations on the Authority arose as a result of the issuance of the s 473GB certificate and that Beach J’s analysis in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 has no application to Part 7AA decisions, which is consistent with current binding Full Court authority.

   Reference is made here to Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at paragraphs [90] - [101] and AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129 at paragraph [37]. The first respondent goes on to say that:

   As such, the first respondent contends that the fact that a s 473GB certificate was issued in this matter, but not disclosed to the applicant does not give rise to any arguable case of jurisdictional error by the Authority.

   It was put to me that I am bound by the current existing precedent cases referred to, and that I should decide this decision, notwithstanding the fact that there is an apparent appeal on a matter that was not pleaded before this Court.

8. I propose to accept that submission, but during the course of the hearing, the issue of the s 473GB certificate was clearly raised with the applicant. Whilst it is not the function of this Court to give legal advice, this is clearly an issue upon which the applicant should seek legal advice so as to preserve his position should the High Court find against the delegate in the current appeal in BVD17 v The Minister for Immigration and Border Protection [2018] FCAFC 114 (“BVD17”). This is because the delegate indicated that reconsideration of any matters, should BVD17 go against the delegate, would only occur where there were live cases.

9. Whilst it is a matter for the Minister as to which matters might be reconsidered, one would have thought it would be more reasonable for any matters that are effected by such an issue to be reconsidered, notwithstanding whether or not they are before the Courts. However, that is a matter for the Minister. The Court can only note the issue.

10. The adoption of a view that all matters should be reconsidered where the issue arises would save the necessity of appeals being filed in the Federal Court to preserve the position of applicants who may be affected. This, of necessity, involves considerable cost and administrative effort. The other alternative is for this Court to simply adjourn matters. Neither course of action is desirable or attractive.

Conclusion

1. The application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  5 August 2019