BSN19 v Minister for Immigration

[2019] FCCA 3271

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSN19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3271

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.36

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

NAHI v Minister for Immigration [2004] FCAFC 10

SZSHK v Minister for Immigration (2013) 138 ALD 26

Applicant: BSN19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1014 of 2019

Judgment of: Judge Driver

Hearing date: 13 November 2019

Delivered at: Sydney

Delivered on: 13 November 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Lloyd of HWL Ebsworth

INTERLOCUTORY ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1014 of 2019

BSN19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  The decision was made on 3 April 2019. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 6 November 2019. 

Relevant factual background

1. The applicant is a Tamil male citizen of Sri Lanka. He arrived in Australia at Cocos (Keeling) Islands as an unlawful maritime arrival on 28 September 2012.[1]  Following an invitation from the Minister, the applicant applied for a Safe Haven Enterprise Visa (SHEV) on 6 March 2017.[2]

   [1] Court Book (CB) 23 and 119

   [2] CB 35

2. The applicant submitted a statement in support of his application,[3] in which he claimed to fear harm:

   a)related to the fact that the Liberation Tigers of Tamil Eelam (LTTE) had tried to recruit him when he was 16 and, although he had escaped, he had later been detained by the police.  He claimed the police then suspected that he was involved with the LTTE and that they beat him and sent him on errands on a number of occasions;[4]

   b)because he claimed he had been arrested, charged and had appeared in court in May 2012 in relation to the assault of a man.  He said that he had been painting a temple with a group of men when some of the other workers had beaten the man.  He said that he had been arrested and released from the court on a bond.  The applicant claimed that, after he had been released, LTTE affiliated people related to the man who had been attacked had come looking for him.  He claimed that following this he did not return home and later departed Sri Lanka by boat for Australia;[5]

   c)because the court case against him was still pending and he had departed Sri Lanka illegally, he would be arrested and imprisoned if he returned to Sri Lanka;[6] and

   d)as a young Tamil male suspected of LTTE involvement or revival.[7]

   [3] CB 73-76

   [4] CB 73-74 at [9]-[15]

   [5] CB 74-75 at [16]-[34]

   [6] CB 75-76 at [35]-[36]

   [7] CB 76 at [38]

3. The applicant attended an interview with the delegate on 23 October 2018, assisted by a Tamil interpreter.[8]  The delegate refused to grant the applicant a SHEV on 20 February 2019.[9]

   [8] CB 121

   [9] CB 119

4. The matter was referred to the Authority on 25 February 2019.[10]  The applicant did not provide any submissions or new information to the Authority, which proceeded to make its decision on the papers.

   [10] CB 134

Authority decision

1. By way of a decision dated 3 April 2019, the Authority affirmed the delegate’s decision to refuse to grant the applicant a SHEV.[11]  The Authority:

   a)did not accept that the LTTE had tried to recruit the applicant when he was 16 (in 2011) because, by reference to independent country information, it found it to be improbable that the LTTE operated a camp in Batticaloa at that time after it had been defeated;[12]

   b)did not accept that the applicant had been detained by the police, beaten or forced to do errands for them, as it considered the applicant’s evidence in this regard to be “minimal, inconsistent, and not convincing”;[13]

   c)did not accept that the applicant was charged in late May 2012 in relation to an assault of a man who claimed to be LTTE.  This was on the basis that the Authority considered the applicant’s evidence to be inconsistent, not convincing and improbable;[14]

   d)found that when the applicant departed Sri Lanka he was not the subject of any police charges and was not on bail or subject to any reporting conditions in relation to an alleged assault or any other matter.  It found that the applicant was not of interest to Sri Lankan authorities, or any others in connection with the LTTE or the alleged assault;[15]

   e)after considering country information and applying its factual findings in relation to the applicant’s claims, found that there was not a real chance the applicant would be targeted for any harm by Sri Lankan authorities, including the police, or others because he is a young Tamil male from Batticaloa, or for any other reason;[16] and

   f)in relation to the applicant returning to Sri Lanka as an illegal departee, the Authority was not satisfied that the processes and penalties imposed would amount to persecution.[17]  In considering these claims in relation to the complementary protection criterion, the Authority accepted that the applicant may be questioned, fined, detained for up to 24-48 hours in an airport holding cell and could incur costs associated with the judicial process.  However it did not consider that there was a real risk that the applicant would suffer significant harm.[18]

   [11] CB 157

   [12] at [7]

   [13] at [8]

   [14] at [9] and [15]

   [15] at [17]

   [16] at [26]

   [17] at [32]

   [18] at [38]

2. The Authority concluded that it was not satisfied that the applicant met the requirements of s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth).

The present proceedings

1. These proceedings began with a show cause application filed on 26 April 2019.  The applicant continues to rely upon that application.  The grounds in it are:

   Ground 1:IAA made jurisdictional error

   Particulars

   IAA did not consider Applicant will be imputed with LTTE profile due to systematic and discriminatory conduct suffered by the Applicant since he was sixteen.

   Ground 2: IAA made jurisdictional error

   Particulars

   Authority failed to consider mistreatment and torture still prevailing therefore Authority did not consider complementary protection obligation.

2. The application is supported by a short affidavit filed with it.  In [3] of that affidavit the applicant claims to be stateless.  I received that paragraph as a submission and the balance of the affidavit as evidence.  I also have before me as evidence the court book filed on 16 June 2019. 

3. I invited oral submissions from the applicant this afternoon.  He frankly conceded that he had not looked into the validity of the Authority decision properly.  His difficulty is that the grounds of review he advances in his application do not rise above a simple dispute over the merits of the Authority decision. 

4. The applicant’s claim of statelessness appears to have been made for the first time in his affidavit in this Court.  It was not put to the delegate or the Authority and hence could not have been considered by them.  In any event, it appears to be contradicted by the applicant’s own claims and statements of fact in the court book.[19] 

   [19] for example at CB 49

5. On my own reading of the Authority decision no viable argument of jurisdictional error is apparent.  The Minister’s submissions deal with the grounds of review advanced.  I agree with those submissions. 

Ground 1

1. This ground alleges that the Authority failed to consider that the applicant will be imputed with an LTTE profile due to conduct suffered by him since he was 16.  Properly understood, this ground disagrees with the Authority’s factual findings rather than establishing a jurisdictional error in its decision.

2. As outlined above, the Authority rejected the majority of the applicant’s claims and concluded at [17] that, when he departed Sri Lanka, the “applicant was not of interest to Sri Lankan authorities, including the police, or any others in connection with the LTTE…and nor has be been of any interest since he departed”.  The Authority also referred to independent country information in support of its findings.  For example, it found that a DFAT[20] report dated 23 May 2018 did not support a finding that Sri Lankan security forces continue to impute LTTE support and monitor, harass, arrest or detain people based on Tamil ethnicity.[21]  At [25] it referred to information from the UK Home Office that a person being of Tamil ethnicity would not in itself warrant international protection, nor would being a person who had past connections with the LTTE unless they were perceived to have played a significant role in it or be active in post-conflict Tamil separatism.  In light of its findings that the applicant had not been active in post-conflict Tamil separatism and had not been of any interest to the Sri Lankan authorities, the Authority found that “there is not a real chance the applicant would be targeted for any harm by Sri Lankan authorities, including the police, or others because he is a young Tamil male from Batticaloa, or for any other reason”.[22]

   [20] Department of Foreign Affairs and Trade

   [21] at [20]

   [22] at [26]

3. The Authority’s findings in this regard were sufficient to address any claim of harm by the applicant by reason of having an imputed LTTE profile. There has been no failure by the Authority to consider a claim, or integer of a claim, made by the applicant.[23]

   [23] cf Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Ground 2

1. In relation to ground 2, the applicant alleges that the Authority failed to consider mistreatment and torture still prevailing (in Sri Lanka) and did not consider complementary protection.  Contrary to the assertion in this ground, the Authority’s reasons refer to various sources of country information in relation to the security situation in Sri Lanka, the treatment of Tamils and the treatment of returned asylum seekers.[24]  The Authority cannot be said to have failed to consider relevant prevailing circumstances in Sri Lanka at the time of its decision.  The choice of country information and the weight to be attributed to it were matters for the Authority.[25]

   [24] e.g. see [23], [27]-[28]

   [25] NAHI v Minister for Immigration [2004] FCAFC 10 at [11] and [13] per Gray, Tamberlin and Lander JJ

2. Similarly, the Authority addressed the applicant’s claims pursuant to the complementary protection criterion.  It did this at [35]-[41], including specifically considering the effect of the applicant potentially being briefly detained upon return to Sri Lanka due to his illegal departure.

3. For completeness, by reference to the Authority’s reasons at [39], findings with respect to the complementary protection criterion may be informed by previous findings of fact provided they are not tied to Refugees Convention concepts.[26]

   [26] SZSHK v Minister for Immigration (2013) 138 ALD 26 at [32] - [35]

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

2. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale.  The applicant asked rhetorically how he could pay the costs.  As I pointed out to him, however, the issue for the Court is whether the costs have been reasonably and properly incurred.  I am satisfied that they have been.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:         14 November 2019