BVL17 v Minister for Immigration

[2020] FCCA 1679

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVL17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1679

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider new information – whether the Authority failed to consider relevant information – whether the Authority incorrectly applied the legislation when determining whether the applicant had a well-founded fear of persecution – whether the Authority failed to consider relevant factors – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 476

Applicant: BVL17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 232 of 2017

Judgment of: Judge Street

Hearing date: 23 June 2020

Date of Last Submission: 23 June 2020

Delivered at: Sydney

Delivered on: 23 June 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams

Solicitors for the Respondents: Ms B Rayment, Sparke Helmore, via Microsoft Teams

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 23 June 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 232 of 2017

BVL17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 31 March 2017, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country.

3. The applicant was found to be a Tamil from the Northern Province, and the applicant claimed to fear harm, by reason of an imputed profile as a Liberation Tigers of Tamil Eelam (“LTTE”) supporter, from the Sri Lankan authorities. The applicant also claimed to fear harm by reason of the data breach, his ethnicity being Tamil, his illegal departure and being a failed asylum seeker.

4. On 29 September 2016, the Delegate found that the applicant failed to meet the criteria for the grant of the visa. On 4 October 2016, the Authority wrote to the applicant explaining that the application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did provide new information and submissions that were expressly referred to in the Authority’s reasons.

5. The Authority referred to the background to the Safe Haven Enterprise visa application, and had regard to the material referred by the Secretary under s 473CB of the Act. 

6. The Authority identified the new information in the applicant’s submissions, and the Authority found that there were not exceptional circumstances to have regard to the new information, after considering the substance of the same and both limbs of s 473DD of the Act.

7. The Authority summarised the applicant’s claims, and accepted that the applicant lived in an LTTE-controlled territory during a period of the civil war, and accepted that the applicant assisted the LTTE by providing items from his shop and flying the LTTE flag between 2002 and 2008. The Authority accepted that the applicant was photographed in an LTTE uniform in 2007 or 2008. The Authority noted that the applicant had stated that he was not an LTTE member. 

8. The Authority identified significant inconsistencies in some of the applicant’s claims, and found that, in part, they were inconsistent with country information.

9. The Authority did not accept that the applicant worked with the LTTE in a war zone from January 2009 in any particular location or in any other part of Sri Lanka. 

10. The Authority identified that there is a considerable difference between being detained in an Internally Displaced Persons (“IDP”) camp for two weeks and being detained for three months or more. The Authority referred to the inconsistencies as to the length of time that the applicant and his family were in the camp as well as to the location of the camp.

11. The Authority did not accept that the applicant and his family were able to bribe a doctor to facilitate their escape from an IDP camp. 

12. The Authority also referred to the applicant’s claims to have been in Colombo on a particular date with his family when his passport was issued, and when the passport application was lodged two days earlier. The Authority found that it was consistent with the applicant’s claims in his Safe Haven Visa application as to where he was living and working in from May 2009. Taking into account that the earliest releases from the IDP did not occur until 3 months later, the Authority did not accept that the applicant and his family were displaced persons or that they were admitted to a particular IDP camp in 2009.

13. Because the Authority had not accepted that the applicant was detained in an IDP camp, the Authority did not accept that the applicant attracted the animosity of other Tamils in the camp, or that these Tamils identified him to the Criminal Investigation Department (“CID”) as having LTTE links. 

14. The Authority referred to the applicant’s claims that he was able to avoid the CID by staying at home, and found the applicant’s claims in this regard to be implausible. The Authority was not satisfied that the CID had an interest in the applicant, or that the CID made attempts to visit the applicant’s brother-in-law in search of the applicant. 

15. The Authority found the applicant’s claim in relation to the CID asking his wife as to his location to be implausible. 

16. The Authority was not satisfied that the applicant’s wife has an LTTE profile, and did not accept that the applicant’s wife and children moved house to avoid the CID. 

17. The Authority referred to the data breach, and did not accept that this could result in the CID locating the applicant’s family.

18. The Authority accepted that the applicant’s wife’s uncle had been detained by the CID, and that the applicant departed Sri Lanka illegally, and that the applicant would be returning as a failed asylum seeker. 

19. The Authority expressly identified having regard to the United Nations High Commissioner for Refugees (“UNHCR”) eligibility guidelines, and found that the applicant’s level of support was low and indicative of ordinary Tamils living in an LTTE-controlled area.

20. The Authority was not satisfied that the applicant falls into one of the categories in respect of persons on a “stop” list and, taking into account country information, found that the applicant does not have a well-founded fear based on his Tamil ethnicity. 

21. The Authority was not satisfied that the applicant has been imputed with an LTTE profile, or that the applicant faces a real chance of harm on that basis on return to Sri Lanka. The Authority expressly referred to considering the applicant’s LTTE profile because of the photograph of the applicant in LTTE uniform and by reason of his wife’s uncle. The Authority was not satisfied that the applicant, being a Tamil male from a former LTTE-controlled area in the Northern Province, and his connections to his wife’s uncle, would cumulatively result in any harm to the applicant on return to Sri Lanka.

22. The Authority referred to country information in relation to the applicant’s illegal departure, and found that the investigation, prosecution and punishment of the applicant under the Sri Lankan Immigrants and Emigrants Act would be the result of a law of general application, and does not amount to persecution within the meaning of s 5H(1) or s 5J(1) of the Act.

23. The Authority was not satisfied that there was a real chance that the applicant would face harm as a failed asylum seeker.

24. The Authority expressly considered the applicant’s claims cumulatively, and was not satisfied that, in their entirety, this would result in a real chance of harm to the applicant on return to Sri Lanka. 

25. The Authority found that the applicant did not meet the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant failed to meet the criteria in s 36(2)(a) of the Act. 

26. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there is a real risk that the applicant will suffer significant harm. The authority found that the applicant failed to meet the criteria under s 36(2)(aa) of the Act, and affirmed the decision under review.

Before the Court  

1. These proceedings were commenced on 28 April 2017, and on 5 July 2017, the Registrar made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an amended application on 25 August 2017, and provided written submissions today.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed that he understood the nature of the hearing, as explained by the Court. 

3. The applicant submitted orally that he participated in the LTTE, and that the Authority had not given proper consideration to his claims concerning the LTTE.

4. It is apparent from the Authority’s reasons that the Authority gave proper and genuine consideration to the whole of the applicant’s claims, and made dispositive findings in respect to the applicant’s claims that were open for the reasons given by the Authority. Those reasons reflect an intelligible justification for the adverse findings as summarised above. 

5. The Authority expressly referred to the applicant saying that he was not a member of the LTTE, and the inconsistency as to the applicant’s location and the timing of the earliest releases from the IDP camp. The Tribunal took into account the applicant’s evidence in relation to his photograph and his claims concerning his wife’s uncle, as well as the UNHCR guidelines and the applicant’s low profile. The Tribunal did not accept as plausible the claims as to the CID asking his wife as to his location. The adverse findings cannot be said to lack an evident and intelligible justification and were dispositive of the whole of the applicant’s claims. 

6. The applicant’s oral submissions otherwise invited merits review. This Court has no power to review the merits. 

The grounds

1. The grounds in the amended application are as follows:

   A. Ground 1

   The Immigration Assessment Authority (IAA) ( Second Respondent) fell into jurisdictional error in failing to consider new information provided by the Applicant and in determining that there were no exceptional circumstances in existence in the case to justify considering the information.

   Particulars

   The IAA had committed jurisdictional error by adopting and applying an unduly narrow interpretation of the term "exceptional circumstances" and, accordingly, had failed to consider all the matters capable of constituting the circumstances of his case as exceptional. ( reference made to paragraph 14,15 and 16 of the decision IAA dated 31/3/2017).

   The IAA accepted that the information provided by the Applicant to the IAA had been " new information" ( reference made to paragraph 14 of the decision of IAA dated 31/3/2017). The Second Respondent having rejected the explanations for the late disclosure of the new information, the IAA ( Second respondent) had limited its reasoning to the absence of exceptional circumstances, and had concluded, solely on the basis that the IAA was not satisfied that there are exceptional circumstances to justify considering the new information. ( reference made to paragraph 16 of decisions and reasons of IAA 31/3/2017)

   B. Ground 2

   1. The Second Respondent fell into jurisdictional error in failing to consider or to take into account relevant factors to the matter.

   Particulars

   a)The IAA accepted that as a Tamil the applicant has a subjective fear of arrest, detention , disappearance and mistreatment at the hands of the Sri Lanka authorities and is concerned about ongoing arrests and disappearances in Sri Lanka and further accepted that there continue to be reports of arbitrary detention and harm perpetrated by the Security forces in Sri Lanka ( reference made to paragraph 41 of the decision of IAA dated 31/3/2017), particularly of Tamils, and the reports from freedom from torture, human rights watch and the International Truth and Justice project are amongst those that detail claimed abuses.

   b)As stated above, The IAA accepted the information and reports from the abovementioned independent sources but failed to take into account the relevant (as above) factors and information of the reliable independent sources. The reason given by the Second respondent was that the country information does not support this fear as being wellfounded ( reference made to paragraph 41 of the decision of IAA dated 31/3/2017). The Ministerial direction no 56 states that DFAT country information is to be taken into account only where it is relevant information, and that the decision maker is not precluded from considering other relevant information about the real situation in Sri Lanka. Further, the IAA failed to take into account that there are limitations and unavailability of in depth information in the DFAT country information of Sri Lanka.

   C. Ground 3

   The second respondent fell into jurisdictional error in misconstruing sections 36 and Migration Act 1958 ( Cth) ("the Act) and not properly addressing the question of whether the applicant had a well-founded fear of persecution for a reason under the United Nation Convention relating to the status of the Refugees.

   D. Ground 4

   The Second Respondent has failed to take into account relevant factors when deciding whether applicant falls under the United Nation High Commissioner for Refugees (UNCHR) guidelines that highlights the protection needs of those perceived to have links to the L TTE.

   That the decision of the Second Respondent Independent Merits Reviewer falls into an error of law. The Reviewer made facts finding error, ignored relevant material and relied on irrelevant in reaching their decision and reasons on 31 March 201 7. Such an error of law is a Jurisdictional error which will invalidates decision of the Immigration Assessment Authority.

Ground 1

1. In relation to ground 1, it is apparent that the Authority correctly identified the whole of the statutory provision under s 473DD of the Act. This is made clear by paragraph 6 of the Authority’s reasons. The Authority had a real and meaningful engagement with the new information as set out in paragraphs 5 to 16 as is apparent from the discussion of the applicant’s submissions concerning the new information. In paragraph 4, the Authority found that there were exceptional circumstances to take into account an updated DFAT report and in paragraph 7 found that there were not circumstances warranting an exercise of the power under s 473DC of the Act. There is no basis to support the contention that the Authority adopted an unduly narrow meaning of exceptional circumstances in determining whether new information could be considered for the purpose of making the decision under Pt 7AA of the Act. There is no basis to find that the Authority failed to take into account the whole of the provisions given the reference to the same in paragraph 6.

2. The Authority’s reasons in relation to the new information were logical and rational, and no jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Authority made adverse findings in relation the applicant’s claims in respect of the IDP camp, and the Authority’s reasons reflect a proper intellectual engagement with the country information and the applicant’s claims, evidence and submissions. There has not been identified any relevant factor that the Authority failed to take into account. It was a matter for the Authority as to what country information it accepted. Further the Authority did not have to refer to every piece of evidence. There is no proper basis to find that the Authority did not have regard to the whole of the material before the Authority. Paragraph 41 of the Authority’s reasons accepted the subjective fear of the applicant as a Tamil but found that the country information does not support the fear as being well founded. The Authority expanded on this reasoning as to the significant change in the security situation and the improvement of the security situation. The Authority had a meaningful engagement with the applicant’s submissions in this regard but found overall that the reports of harm relate to people with  LTTE connections or who are otherwise Tamil separatist activists. The adverse finding in paragraph 45 of the Authority’s reasons was logical, rational and open. There was no factor or integer that the Authority failed to consider or take into account. 

2. No jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, the Authority correctly identified the relevant law in relation to both the Refugee Convention and in relation to complementary protection. The reasons of the Authority as summarised above reflect a real and meaningful engagement with the applicant’s claims in determining whether the applicant met the criteria under the Refugee Convention or in relation to complementary protection.

2. The applicant’s assertion that the Authority misconstrued or did not properly address the statutory provisions in relation to the Refugee Convention is really an invitation for merits review. The Authority’s reasons reflect a correct application of the relevant law. 

3. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, it is apparent that the Authority expressly referred to the UNHCR guidelines. There is no relevant factor identified that the Authority failed to take into account. The reference to the need for protection for those with LTTE links is an invitation to engage in merits review. There is no finding of fact or error that has been identified, nor has any relevant or irrelevant consideration been identified. 

2. No jurisdictional error is made out by ground 4.

Written submissions

1. In relation to the applicant’s written submissions, this Court has no power to determine the matter in respect of any alleged error by the Delegate. 

2. Insofar as paragraphs 1 and 2 of the applicant’s written submissions are intended to concern the Authority’s findings in respect of new information, those adverse findings by the Authority as to there being no exceptional circumstances do not reflect any jurisdictional error for the reasons already given.

3. Insofar as paragraphs 3 and 4 allege that the Authority had failed to consider the applicant’s claims, this proposition is contrary to the Authority’s reasons as summarised above.

4. Paragraphs 3 and 4 of the applicant’s written submissions, in substance, invite merits review and fail to make out any jurisdictional error. 

5. Paragraph 5, insofar as it refers to LTTE links, was a matter expressly considered by the Authority, as summarised above. The Authority took into account the Prevention of Terrorism Act remaining in place in paragraph 42 of its reasons and made findings that were open and dispositive of the whole of the applicant’s claims.

1. No jurisdictional error is made out by paragraph 5 of the applicant’s submissions.

2. In relation to paragraph 6, it was a matter for the Authority what country information it accepted. There is no basis to support the contention that the Authority failed to take into account the whole of the information before the Authority. The Authority does not have to refer to every piece of information before it. Further, it is apparent that the Authority had a real and meaningful engagement with the applicant’s claims and submissions and made findings that were open in relation to the applicant.

3. No jurisdictional error is made out by paragraph 6 of the written submissions.

4. Paragraph 7 reflects a disagreement with the adverse findings by the Authority, insofar as it is treated as referring to the Authority. This reflects a disagreement with the adverse findings, and it does not identify any jurisdictional error. The adverse finding as to the applicant being detained at the IDP camp took into account the location of the applicant when applying for the passport and the earliest release from the camp. The adverse finding was logical and rational. The adverse finding as to interest by the CID was also open, logical and rational. The disagreement with the adverse findings does not identify any jurisdictional error. Paragraph 7, in substance, invites merits review. 

5. No jurisdictional error is made out by paragraph 7 of the applicant’s written submissions.

6. In relation to paragraph 8, it was a matter for the Authority, as the Court has referred to, to determine what country information to take into account, and this paragraph again invites no more than merits review. 

7. No jurisdictional error is made up by paragraph 8 of the applicant’s submissions.

8. Paragraph 9 also, in substance, reflects a disagreement with the adverse findings and invites merits review. The current situation in Sri Lanka is not able to be adduced so as to establish error by the Authority in its reasons. It is apparent that the Authority took into account up-to-date country information at the time of its determination. The Prevention of Terrorism Act was expressly referred to and taken into account by the Authority as referred to above. 

9. No jurisdictional error is made out by paragraph 9 of the applicant’s written submissions. 

10. As the amended application fails to make out any jurisdictional error, the amended application is dismissed. 

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 23 June 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 5 August 2020