BUT18 v Minister for Home Affairs

[2018] FCCA 3361

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUT18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3361

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: BUT18

First Respondent: MINISTER FOR HOMES AFFAIRS

Second Respondent IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 346 of 2018

Judgment of: Judge Vasta

Hearing date: 5 November 2018

Date of Last Submission: 5 November 2018

Delivered at: Brisbane

Delivered on: 5 November 2018

REPRESENTATION

The Applicant appearing on their own behalf with the assistance of an interpreter

Solicitor for the First Respondent: Sparke Helmore

ORDERS

1. That the Application in a Case filed 2 July 2018 be dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 346 of 2018

BUT18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant, BUT18, came to Australia as an unauthorised maritime arrival.  He claims that he was born in the Mullaitivu District in 1993 in Sri Lanka.  Because of the civil war that had broken out from 2009 to 2012, he was held in the Manik Farm Displaced Persons Camp, as were his parents and three sisters.  During the time in the camp, he undertook voluntary work with the Red Cross and World Vision Sri Lanka. 

2. Whilst in the camp and following his release, he said that he was interrogated several times by the criminal investigation department (CID) about his involvement with the LTTE and their activities in his area.  He said that he was not a member of the LTTE but the LTTE once tried to forcibly recruit him but he was able to escape after a short time. 

3. He said that two of his uncles were LTTE members, one of whom was killed in the conflict in 1995, and the aunt was killed when his village was shelled in 1996; the Applicant being extremely young when those events occurred.

4. The Applicant said that after being released from the camp, the CID visited him and his uncle several times.  His uncle lived next door to him and was an LTTE member.  On these occasions, the CID were threatening and the family was scared that they would be sent back to the camp.  Because of the threat from the CID, the Applicant was forced to leave Sri Lanka, he claimed. 

5. He said that he fears harm from the Sri Lankan authorities, including the CID.  As a Tamil, he says that he will be persecuted and face discrimination across Sri Lanka, and be suspected of anti-government activity, and the CID will suspect he is an agent of the LTTE.  He claims that the government is building more camps in his home area, and this indicates he will be persecuted by the same groups again.  They will be starved of food, water, and medicine. 

6. The army and the CID previously declared that the LTTE leader was dead, but in 2016 the government declared him to be alive.  The Applicant says that, if this is true, the war will start again and Tamil people will be persecuted by the authorities.  Whilst not part of his claim, the delegate and the IAA also had to consider whether he faced a risk of harm due to his illegal departure from Sri Lanka and any potential harm he would face upon return to Sri Lanka after unsuccessfully seeking asylum.

7. The IAA considered all of these aspects.  The IAA accepted that the Applicant was in the camp for the three years.  The IAA accepted that afterwards he was spoken to by the CID, both he and his uncle, and that they wanted information from him.  The IAA concluded, though, that the Applicant was not an LTTE follower but that he has familial links to the LTTE.  The IAA noted that the Applicant was unsure of his uncle’s role in the LTTE, that the Applicant had said that when his uncle got married he left the LTTE. 

8. On the Applicant’s own evidence, the uncle was sent to rehabilitation for approximately 18 months during the period after the war but was subsequently released.  The Applicant indicated at his interview that the uncle was now free and was working in various locations in Sri Lanka undertaking construction work. 

9. The IAA came to the conclusion that they were not satisfied that the uncle held a senior position within the LTTE, and that the Applicant was unable to provide any real information on the role of the uncle. The IAA also noted that the uncle had been able to find employment and travel within Sri Lanka, which indicated that the uncle was no longer of interest to the Sri Lankan authorities.

10. The Applicant claimed at his interview that the authorities continue to check on the uncle but the IAA did not accept that claim.  That claim was made more than five years after the end of the war and the demise of the LTTE.  The IAA came to the conclusion that, because the uncle does travel, he could not be of ongoing adverse interest within Sri Lanka, and so that part of the claim was rejected.

11. The IAA had regard to country information.  There is no country information that suggests that the LTTE leader is still alive.  The IAA did not accept any claim that Sri Lankan authorities were building more camps in the Applicant’s home area.  The country information suggests that the security situation had improved dramatically since the end of the conflict. 

12. There is a sizeable reduction in the military’s involvement in civilian life; that whilst they may maintain a presence in the Northern Province, their number of personnel has reduced by 30 per cent since the end of the conflict. The US Department of State reported that about 3200 acres across several districts had been returned and not in military control.  The military checkpoints on major roads leading to the north and east were removed in 2015, and there are no restrictions on travelling to the north and east.  There is simply no information that new camps were being established.

13. The IAA took note of the fact that the Applicant had left Sri Lanka illegally but then looked at country information which suggested that persons who return from other countries to Sri Lanka, having left the country illegally, are given fines and, at most, are put in prison until the matter can be dealt with upon their arrival, which seems to be, it would seem, a very short period.

14. The IAA looked at the fact that the Applicant is a Tamil male from the north formerly LTTE controlled area and looked at quite a deal of country information.  The IAA came to a conclusion, at paragraph 25, that there was no indication the authorities, including the CID, have recently made inquiries of the Applicant’s family concerning his whereabouts or that they have otherwise sought to contact or locate the Applicant.

15. The IAA said that whilst they have accepted that the Applicant was subject to some questioning and monitoring by the CID after his release, they were satisfied that he has no adverse profile or actual or imputed political opinion connected to or supportive of the LTTE.  The IAA found that he was not an LTTE member, though they accepted that the LTTE had once tried to recruit him. 

16. The IAA found that there was no suggestion that the Applicant or his family have been involved in Tamil separatism since the end of the war in any capacity, and the IAA did not accept that there was a real chance of the Applicant being seriously harmed for reasons of his ethnicity, or his origin, or because he was resident in a former LTTE controlled area. 

17. In the end, the IAA was not satisfied the Applicant faces a real chance of harm for those reasons, and did not find that he faced a real chance of harm because he was a returning failed asylum seeker.  Therefore he did not meet the requirements of the definition of refugee. 

18. The IAA then looked at the complimentary protection criteria and came to a similar conclusion that, at paragraph 44, there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country, that there was a real risk that he would suffer significant harm.  Therefore the decision of the delegate, not to give the BUT18 a protection visa, was affirmed.

19. The Applicant filed his application to this Court on 10 April 2018.  He had four grounds, and I will look at them seriatim.  The first one was:

    1. Both respondents failed to take into consideration the relevant facts in the applicant’s SHEV application and made a jurisdictional error. 

20. I will stop at this point that there are, in the grounds of application, notations that both the respondents failed to do something or other.  The Court can only look at what the IAA did because that is the power of judicial review.  Whatever the delegate did is not part of this Court’s function.

21. The first ground really had a number of particulars to it.  It took issue with some parts of the reasons given by the delegate of the Minister. Those matters were not repeated by the IAA and so therefore it cannot be the subject of any jurisdictional error.  The particulars in the application go on to say that:

    …it is established the presumption of the IAA with the view to reject the Applicant’s claims.  The fact finding that the white van abductions may be related to either the settlement of personal scores or extortion is an irrelevant finding as it doesn’t establish a fact that Tamils are still abducted by white vans and their whereabouts are unknown to date. So both the respondents made errors in fact finding and thus made jurisdictional errors. 

22. There is no merit, at all, to that claim.  This was the IAA simply looking at country information and making comments about that.  It was not a reason for finding, as they did.  It was simply an observation that these were the facts.  In my view, this was not a jurisdictional error because all the IAA was doing was taking into consideration the country information which it was obliged to do.  There can be no jurisdictional error in doing this.

23. The second ground is that:

    1. The Second Respondent used excessive authority in interpreting the Applicant’s claim with a view to reject his claim. 

24. In effect, it is saying that the IAA did not assess the claims properly.  As my recitation of the reasoning of the IAA has shown, the IAA took the claims and thoroughly assessed them and came to conclusions.  This, as was the aim of the first ground, is an invitation to an impermissible merits review.

25. The third ground was that

    3. The Respondents completely misconstrued and misinterpreted the relevant facts with the view to reject the Applicant and it made a jurisdictional error. 

26. Again, this is an invitation to revisit the facts.  The facts that the IAA looked at were matters that were contained in country information, and the IAA has made a finding that was open on the evidence.  There is no merit in this ground

27. Ground four is:

    4. The Applicant was denied procedural fairness and thereby the Respondents made a jurisdictional error.

28. The particulars given of this were really dealing with the interview that occurred between the Applicant and the delegate of the Minister.  The IAA did not, at all, interview the Applicant.  There can be no problem here.  Nothing has been shown that would demonstrate to me that the IAA indeed derogated from the procedural fairness that has been codified in the sections of the Migration Act 1958 (Cth) (“the Act”) that deal with the powers of the IAA.

29. The problem with all of these claims are that the Applicant has really misconstrued what the role of this Court is.  This Court is not a Court of appeal; it is a Court of review.  It matters not whether the Court agrees or disagrees with the final decision given by the IAA.  What is to the point is whether or not the legislative framework that governs the exercise of the IAA’s decision making power has been followed, and in this matter it would seem that the IAA has followed the law and has made its findings based upon facts and inferences that were open to it.  There can be no jurisdictional error in such a case.

30. Whilst that was the application that was before the court, once the application was filed in this registry, the papers were stamped and given to the Applicant.  The front page of the papers has very clearly written that the first court date would be 2.15pm on 9 May 2018.  It was incumbent upon the Applicant, having been given those stamped papers by the registry, to serve the Minister.  He did so.  At 2.15pm on 9 May, the Applicant did not appear.  Registrar Buckingham dismissed the application because the Applicant did not appear.

31. The Applicant then filed an application in a case on 2 July 2018 wanting the order of Registrar Buckingham vacated or rescinded and for his application to still proceed.  As I said during the course of the hearing, there are three aspects that the Court looks at: 

    a)First, what were the reasons why the Applicant did not attend; 

    b)Second, what is the prejudice to the Minister;  and,

    c)Third, are the merits of the application sufficient to warrant the Court hearing the matter. 

32. As I have already gone through with the merits of the matter, the third question can be answered in the negative. 

33. The second question is what prejudice is there to the Minister, and quite candidly Ms Allen, who appears for the Minister, has conceded that there is really no prejudice. 

34. The first question is “what was the reason why the Applicant did not appear?” In his affidavit that was filed in this Court, the Applicant said this:

    4. I made an application in the Federal Circuit Court on 10 April 2018 for Judicial Review. On that day, I was given copies of my application and I was asked to serve the documents on the Department of Immigration, which I did on the same day. 

    5. However, I was not told about the date for direction hearing or my requirement to attend on 9 May 2018.  I was not aware of the direction hearing.

    6. I’m not proficient in the English language and I had no interpreter with me on that day, hence I thought that I will be receiving further communication from the court to attend a further hearing.

    7. I was only informed that my application was dismissed when the Department of Home Affairs contacted me on 21 June 2018, and requested me to apply for a further visa pending departure or further application.  Attached hereto and marked TS1 is a copy of the email. 

    8. I concede that I was wrong in not attending the direction hearing, however, I honestly did not know. 

    9. I would therefore be grateful if the court could grand me another opportunity to present my case.

35. As I said during the course of the hearing, I do not accept that he was not told about the date for the direction hearing because that is certainly one of the first things that persons of the registry do.  However, it was written very clearly on the first page there that the matter was coming back to Court on 9 May 2018.  I do not accept the excuse that the Applicant has given.

36. He has appeared today before me with an interpreter.  He has told me that it was a genuine mix up with the date and he always intended to appear.  He also told me that his country’s political position is uncertain and that he would face problems if he returned, and that he would not get the safety in Sri Lanka that he now has in Australia.  He said that he grew up facing harassment and that he would face the same problems if he returned, and he told me that the Sri Lankan government is corrupt.

37. All of those are factual matters.  As I say, I am not here to rehear the matter, I am here to see whether or not the IAA had adjudicated the matter according to law. 

38. After looking at the matter, I do not see that there is any jurisdictional error.  I do not accept the excuse, therefore the application in a case made on 2 July 2018 is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019