BWF16 v Minister for Immigration

[2017] FCCA 1080

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWF16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1080

Catchwords:
MIGRATION – Immigration Assessment Authority – Application for a Safe Haven Enterprise visa – applicant claimed to fear harm from the authorities because of his support of the TNA and being viewed has having an LTTE connection – these findings were not irrational or illogical – there was no failure by the Authority to address the integers of the applicant’s claims – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: BWF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1905 of 2016

Judgment of: Judge Street

Hearing date: 23 May 2017

Date of Last Submission: 23 May 2017

Delivered at: Sydney

Delivered on: 23 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

On a direct access basis

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Leave is granted to the Applicant to rely upon the grounds annexed to the submissions of counsel for the Applicant filed on 18 May 2017 and that the amended application annexing the grounds be filed on or before the close of business on 24 May 2017.

2. The amended application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1905 of 2016

BWF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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”) under Part 7AA of the Act made on 22 June 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 26 August 2012 and launched a valid application for protection on 19 October 2015. 

The delegate’s decision

1. The applicant claimed to fear harm by reason of being a Tamil, a failed asylum seeker who departed Sri Lanka illegally, from the United People’s Freedom Alliance (“UPFA”), from the Tamil Makkal Viduthalai Pulikal (“TMVP”) or paramilitary groups or from the Sri Lankan authorities. On 5 May 2016, the delegate refused to grant the applicant a protection visa and found the applicant failed to meet the criteria under the Act.

2. In the course of that decision, the delegate addressed the applicant’s illegal departure. The delegate identified that the applicant was a person who left Sri Lanka illegally and may be charged under the Immigrants and Emigrants Act. The delegate made express reference to the argument that detention, even for a short period would amount to significant harm. The delegate found whilst it was possible that the applicant may have to wait in custody to be brought before a magistrate on certain circumstances like weekends for example, such treatment is not persecutory harm. For this reason, the delegate found that the applicant would not face harm amounting to persecution on return to Sri Lanka for departing the country illegally. 

3. The delegate also considered the issue in relation to complementary protection and the prospect of the applicant facing detention on return to Sri Lanka having left that country illegally. The delegate found that whilst the applicant may be detained while waiting to be heard by a magistrate, the detention would be for a short period of time and that the detention was not arbitrary as it is part of a process sanctioned by a law of general application in Sri Lanka. The delegate found that this punishment that the applicant might incur on return to Sri Lanka does not constitute significant harm according to s.36(2A) of the Act.

4. The delegate found that the applicant did not face a real risk of suffering significant harm should he be removed to Sri Lanka. The delegate found that the applicant failed to meet the criteria under the Act. The delegate found that the applicant was not an excluded fast track applicant.

The Authority’s decision

1. On 9 May 2016, the applicant was sent a letter by the Authority informing the applicant that the matter had been referred to the Authority for review. The letter identified that new information could only be received in limited circumstances and provided an explanation in an attached fact sheet as well as a practice direction giving the applicant an opportunity to provide new information and to put on submissions.

Information before the Authority

1. On 17 June 2016 after an exchange of correspondence, the Authority received submissions on behalf of the applicant. Those submissions expressly referred to the offence under the Immigrants and Emigrants Act and the penalties that could be imposed as well as the DFAT country information in that regard. The submissions referred to the fact that returned asylum seekers arrested can remain in police custody at the CID airport office for up to 24 hours prior to being transferred to the Magistrate’s Court to have their case determined. The submission noted that certain persons had been charged pursuant to s.45 of the Sri Lankan Immigrants and Emigrants Act and submitted that the lengthy procedure, large numbers of detainees, judicial inefficiency and corruption generally caused trial delays. 

2. The submissions asserted that the applicant would be identified by the authorities and persecuted due to his political affiliations and ethnicity. No request was made in the submissions for the Authority to exercise any power under s.473DC of the Act. The Authority identified the applicant’s background and expressly referred to having regard to the material referred under s.473CB of the Act. The Authority also referred to the submissions received on 17 June 2016.

3. The Authority identified that to the extent that the submissions discussed information which was before the delegate and responded to the delegate’s reasoning, the Authority considered that this did not constitute new information within s.473DC(1) of the Act and the Authority had regard to that material.

4. The Authority identified two news articles published in June 2016 that did not pre-date the delegate’s decision and the Authority was satisfied that this new information was not and could not have been provided to the delegate before the decision was made and found that there were exceptional circumstances to justify considering those two articles. The Authority found that other than those two articles, the articles or reports referred to in the submissions all pre-dated the decision of the delegate and the Authority was not satisfied there were exceptional circumstances to justify considering the same as new information.

Consideration of the applicant’s claims

1. The Authority identified the applicant’s claims for protection. The Authority found that the applicant is a TNA supporter who assisted xx in his 2010 election campaign. The Authority accepted the incident alleged by the applicant in which he was assaulted by a UPFA supporter after the 2010 election results were announced and that later that night UPFA supporters attended his home and assaulted his brother and threatened his mother, as claimed.  The Authority accepted that the applicant lived in other locations following this incident and that he left the home of one relative in January 2011 after seeing a man in a market who was involved in the post-election violence. The Authority considered it plausible that when the applicant returned to his home village for a Hindu celebration on 15 May 2012, he was once again approached by the same group of UPFA supporters and was assaulted by one of them. 

2. The Authority accepted that the applicant made a complaint to the Human Rights Commissions of Sri Lanka on 17 May 2012 but did not accept that this was a complaint about the police.

Assessment of refugee convention criteria

The applicant as a Tamil male from the Eastern Province

1. The Authority identified the relevant law. The Authority did not accept that the applicant would be targeted upon return to Sri Lanka because of his Tamil ethnicity or because he is a Tamil from the east. The Authority was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future on the basis of his Tamil race or his Tamil race and the fact that he originates from the east. 

The applicant’s complaint to the Human Rights Commission of Sri Lanka

1. The Authority did not accept the applicant’s claim to have lodged a complaint with the Human Rights Commissions of Sri Lanka about the police. However, given the possibility that the applicant mentioned the police in the complaint, the Authority considered the applicant’s claim that the police may lay false charges against him because of the complaint. The Authority was not satisfied that the applicant faced a real chance of persecution now or in the reasonably foreseeable future on the basis of his complaint to the Human Rights Commissions of Sri Lanka. The Authority gave reasons in support of that finding in relation to the police having been able to find the applicant if they had wished to do so.

The applicant’s claimed political opinion

1. The Authority found on the basis of country information that the applicant would be able to access police protection if he were targeted by TMVP members. The Authority identified country information that identified that effective protection is available in Sri Lanka due to the presence of a functioning judiciary, a competent police force and an existing criminal justice system.  The Authority referred to DFAT having assessed that the protection is durable as the police and military enforce the appropriate laws in that country. 

2. The Authority took into account the applicant’s claim if he returns to Sri Lanka he fears the authorities would arrest and detain him due to his support of the TNA because the TNA was viewed as having connections to the LTTE. The Authority was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future from Sri Lankan authorities, UPFA members or supporters, the TMVP or other paramilitary groups on the basis of his political opinion. 

The possible change of government

1. The Authority was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future because of a possible change to the government.

The applicant’s claim as a failed asylum seeker and illegal departee

1. In relation to the applicant’s illegal departure, the Authority accepted that upon his return to Sri Lanka, the applicant would be charged under the Immigrants and Emigrants Act. The Authority found that if the applicant arrives over a weekend or a long weekend, there is a chance that he may be held, for a short time, at a nearby prison until he appears before a magistrate.

2. The Authority referred to the application of the Immigrants and Emigrants Act to illegal departees and found that law is not discriminatory on its terms and that case law supports it being a law of general application which will not ordinarily constitute persecution because the application of such a law does not amount to discrimination. The Authority found that the investigation, prosecution punishment of the applicant for his legal departure under the Immigrants and Emigrants Act would be the result of a law of general application and does not amount to persecution under s.5(H)(1) and s.5(J)(1) of the Act.

3. The Authority had regard to the poor prison conditions and did not consider that a brief period of detention to which the applicant may be subject would constitute the level of threat to his life or liberty, or to significant physical harassment or ill treatment under s.5J(5) of the Act or otherwise amount to serious harm.

4. The Authority found that the applicant would not be subject to any custodial sentence but that he would be fined for his legal departure, which the Authority was not satisfied amounts to serious harm. The Authority was not satisfied the applicant faces a real chance of persecution on the basis of being a Tamil asylum seeker who departed Sri Lanka illegally, now or in the reasonably foreseeable future.

5. The Authority was not satisfied having considered the applicant’s claims cumulatively that the applicant will face persecution on return to Sri Lanka now or in the reasonably foreseeable future. The Authority found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and found that the applicant did not meet the criteria under s.36(2)(a) of the Act.

Assessment of complementary protection criteria

1. The Authority considered the applicant’s right to complementary protection and specifically considered the consequences of the applicant being charged under the Immigrants and Emigrants Act.   

2. The Authority was not satisfied on the evidence that there is an intention to inflict pain or suffering or extreme humiliation. The Authority found that the overcrowding and circumstances of poor sanitation, lack of resources did not amount to the death penalty and arbitrary deprivation of life or torture. The Authority was not satisfied that the poor prison conditions to which the applicant may be briefly subjected constitutes significant harm as defined in s.36(2A) and s.5 of the Act. The Authority was not satisfied the applicant will face a real risk of significant harm during any brief time spent in detention. The Authority found that the imposition of a fine does not amount to significant harm under the definition in s.36(2A) and s.5 of the Act.

3. The Authority found that the applicant is not of interest to the Sri Lankan authorities for any reason and found that there is no real risk that the applicant would face any significant harm by reason of being an illegal departee for the purpose of s.36(2)(aa) of the Act. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia there is a real risk the applicant will suffer significant harm.

4. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate

Before this Court 

1. Mr Kumar of counsel relied upon proposed amended grounds attached to his submissions, and the Court made an order granting leave to the applicant to rely upon the amended grounds and made a direction for the filing of an amended application in that regard. 

2. The grounds in the amended application are as follows:-

   Ground 1

   1.The Authority erred as per it decision (IAA at [49] - [50]) made on 22 June 2016 involved a jurisdictional error in that the Authority erred in affirming the delegate's decision as to the fear of the persecution from members I supporters of TMVP and UPF A, other paramilitary group or Sri Lankan authorities in that the Authority has failed to address the Applicant's fear and I or is irrational and illogical in consideration of state protection (whether or not Convention nexus existed or as complementary protection).

   Particulars

   (a) The Authority has conflated the findings of the need for state protection including whether sufficient I adequate state protection by reference to applicant's fear.

   (b) The finds are irrational or illogical as the Authority has failed to assess the had failed to the Applicant's fears but by reference to the Po lice presence in the area found that the presence of police (IAA at 50) rather assess the basis of basis of And I The approach was confirmed by the Court.

   Ground 2

   2. The Authority erred on question of intention in respect of the Applicant's detention regarding Applicant's illegal departure and thereby committed jurisdictional error. The Authority in consideration of the intentional aspects of the detention and impliedly/expressly referred intentions of the players carrying out detention (and has misconstrued the provisions and erred in construction of the expression “intentionally inflicted” in the definitions of “torture and “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act 1958 (Cth) (Migration Act).

   Particulars

   (a) The Applicant claimed that he would be detained for leaving country illegally.

   (b) The Authority accepted that the Applicant may be detained (IAA at [561 - [58]) poor conditions (IAA at [72]).

   (c) The Authority erred considering the issue of intention and whether in carrying out the duties there intention to inflict serious or significant harm on the question of the Applicant's detention.

   (d) The Authority erroneously limited it consideration I erred [72] in the construction that the detention for illegal departure:

   (1) the expression “intended to cause" in the definition of “degrading treatment or punishment" in s 5(1) of the Migration Act,·

   (2) require an actor to have “an actual , subjective, intention" to inflict pain or suffering, or to cause extreme humiliation. by the actor's acts or omissions, being an intention that cannot be proved by the actor's knowledge of the consequences of the actor's acts or omissions, no matter how certain that knowledge may be (at [72]).

   (e) Erred in not addressing that there was intention or not asking the correct question regarding detention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment on the applicant.

   (f) The Authority applied the wrong test or asked itself wrong questions when it found that the Applicant would not suffer significant harm.

   (g) The Authority committed jurisdictional error.

   Ground 3

   3. The Authority's decision is affected by jurisdictional error when it found that the whilst the Applicant would be arrested and detained upon return lo Sri Lanka without pulling these matters to the Applicant; the Authority has denied the Applicant procedural fairness in presuming that the Applicant would be granted.

   Particulars

   3.1 The Authority did not put to the Applicant his ability to secure bail;

   3.2 The Authority has presumed that the Applicant would be released on bail without making the appropriate findings.

   4. The Authority's decision is affected by jurisdictional error as it denied the Applicant procedural fairness when it failed to inform the Applicant that it was not disclosing certain documents (supplementary court book).

   Particulars

   4.1 The Authority did not put to the Applicant on notice that some document being described as Department working document.

   4.2 The Authority committed jurisdictional error.

Consideration

Ground 2

1. Mr Kumar of counsel confirmed in relation to ground 2 that this was a formal challenge to the decision of the Authority in light of the fact that this Court is bound by the decision of the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. This was a proper course for Mr Kumar of counsel to take to preserve his client’s rights in respect of that challenge. No jurisdictional error is made out by ground 2.

Abandonment of ground 4

1. Mr Kumar of counsel confirmed that ground 4 of the amended grounds was abandoned. This again was a proper course for Mr Kumar of counsel to take in circumstances where the relevant certificate concerned the applicant’s identity and where the applicant’s identity was not an issue before the Authority and accordingly could give rise to no practical injustice and there was no jurisdictional error. 

Ground 1

1. In relation to ground 1, Mr Kumar of counsel took the Court to the Authority’s reasons in paragraphs 41, 42, 49 and 50 and submitted that the applicant’s claim to fear harm from the authorities because of his support of the TNA and being viewed as having an LTTE connection was the subject of findings that were irrational or illogical and/or that the Authority had failed to address the applicant’s claims. 

1. The Authority identified country information in support of its adverse finding in respect of the applicant’s fears of the authorities, UPFA members or supporters of the TMVP, or paramilitary groups on the base of his political opinion. There was no failure by the Authority to address the integers of the applicant’s claims as advanced.

2. The finding of the Authority was open on the country information identified by the Authority referred to above and cannot be said to be irrational or illogical. Although skilfully presented, ground 1 was in substance an invitation for this Court to engage in an impermissible merits review respect of findings of fact that were open to the Authority. Accordingly, no jurisdictional error is made out by ground 1. 

Ground 3

1. In relation to ground 3, Mr Kumar of counsel argued that the applicant should have had an opportunity to address the issue of consequences of his detention in Sri Lanka upon his return and his ability to secure bail. Mr Kumar of counsel argued that s.473DC of the Act provided discretionary power and in substance submitted that it was unreasonable for the Authority not to exercise its power in the present case.

2. The issue of the applicant being detained by reason of his illegal departure was a matter that was the subject of express findings by the delegate and in respect of which the applicant was on notice at the time providing submissions to the Authority. No submission was put to the Authority inviting the Authority to exercise its powers under s.473DC of the Act.

3. The submissions that were put on behalf of the applicant acknowledged the application of the Immigrants and Emigrants Act to the applicant. In the circumstance of the present case, there is no basis to hold it was unreasonable for the Authority not to directly address or expressly consider exercising a power under s.473DC of the Act. No jurisdictional error is made out by ground 3.

Conclusion

1. The amended application fails to make out any jurisdictional error. The amended application is dismissed. 

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

Date: 15 June 2017