FEDERAL CIRCUIT COURT OF AUSTRALIA
| BWT17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2204 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded outside his local area – whether the Authority misapplied the real chance test or unreasonably failed to invite or consider inviting the applicant to provide further information considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.425, 473CA, 473CB, 473DB, 473DC, 473DE, 473EA, 473GB |
| Applicant: | BWT17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSSESSMENT AUTHORITY |
| File Number: | SYG 1322 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Selliah of Rasan T Selliah & Associates |
| Solicitors for the Respondents: | Ms S Burnett of Clayton Utz |
ORDERS
The amended application the subject of leave granted on 10 August 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1322 of 2017
| BWT17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 7 April 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
On 10 October 2012 the applicant arrived on Cocos (Keeling) Islands by boat as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 47
On 19 October 2012 the applicant participated in an “entry interview”.[2]
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Details
- Case
- [2020] FCCA 2204
- Decision Date
CaseChat Overview and Summary
The applicant sought review of a decision by the Immigration Assessment Authority (IAA) to refuse a protection visa. The applicant claimed a fear of harm in Sri Lanka, but the IAA found these fears were not well-founded outside his local area. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.
The court was required to determine whether the IAA had misapplied the "real chance test" in assessing the applicant's claims, or whether it had unreasonably failed to invite or consider inviting the applicant to provide further information. The applicant also contended that the IAA's consideration of his father's position as a police officer of Tamil ethnicity reflected a failure to apply a "what if I am wrong" approach.
The court found no jurisdictional error. It distinguished the present case from *DRO17 v Minister for Immigration & Anor*, noting that in *DRO17*, the applicant's past support for the LTTE created a profile that could lead to further persecution. In contrast, the IAA in this matter did not accept the applicant was responsible for concerns facing his family, finding that the harassment he faced in his mother's village was due to his ethnicity in a Sinhalese majority area, not because he was specifically targeted. The IAA also noted the applicant had never been detained or interrogated, indicating authorities did not consider him to have an adverse profile. The court also found that the IAA's consideration of the complaint card and its use of the term "will likely" did not demonstrate doubt in its findings or a misapplication of the required test.
The court was required to determine whether the IAA had misapplied the "real chance test" in assessing the applicant's claims, or whether it had unreasonably failed to invite or consider inviting the applicant to provide further information. The applicant also contended that the IAA's consideration of his father's position as a police officer of Tamil ethnicity reflected a failure to apply a "what if I am wrong" approach.
The court found no jurisdictional error. It distinguished the present case from *DRO17 v Minister for Immigration & Anor*, noting that in *DRO17*, the applicant's past support for the LTTE created a profile that could lead to further persecution. In contrast, the IAA in this matter did not accept the applicant was responsible for concerns facing his family, finding that the harassment he faced in his mother's village was due to his ethnicity in a Sinhalese majority area, not because he was specifically targeted. The IAA also noted the applicant had never been detained or interrogated, indicating authorities did not consider him to have an adverse profile. The court also found that the IAA's consideration of the complaint card and its use of the term "will likely" did not demonstrate doubt in its findings or a misapplication of the required test.
Orders
Orders of the court
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Background
Background to the litigation
The applicant's reliance on DRO17 v Minister for Immigration & Anor[24] is misplaced. As observed at [12] of DRO17 by Judge Smith:At a high level, [“the real chance test”] requires no less than a reasonable speculation about what might occur in the reasonably foreseeable future on the hypothesis that a visa applicant is returned to his or her country of nationality. In addressing that test it is accepted, and clearly logical that what has occurred in the past is relevant to determining what might occur in the future. However, it is not necessarily decisive of that question. Whether it is decisive or not depends upon the facts.(counsel’s emphasis retained)[24] [2018] FCCA 3547 The facts in DRO17 were quite different to those here. Most critically, in DRO17, the applicant was found by the Authority to have in the past supported the LTTE by storing weapons for a prominent leader of the LTTE which would have, on the Authority's own findings in DRO17, given the applicant a profile which could have led to further persecution of the applicant.[25] By contrast in this matter, the Authority:a)did not accept the applicant was responsible for the concerns facing his family both in his mother’s home and Batticaloa noting the applicant was very young and many of the events in his mother's home area took place during or in the aftermath of the civil war;[26]b)whilst accepting that the harassment and mistreatment the applicant faced during his time in his mother's home village increased when he became a teenager, the Authority was satisfied that this was not due to the applicant being targeted for any reason specifically, but rather because he was a young Tamil from a Tamil family in a Sinhalese majority area;[27]c)noted the applicant's evidence that he was never detained or interrogated by the authorities. It found that this was because the authorities did not consider him to be connected to the LTTE or otherwise to have any adverse profile, even accounting for his uncle's past detention on suspicion of being involved with the LTTE.[28][25] DRO17 at [29].[26] Authority’s decision at [10], CB 164[27] Authority’s decision at [10], CB 164[28] Authority’s decision at [13], CB 165 and see also [14]-[15] of the Authority’s decision at CB 165 By Ground 1, the applicant also contends that the Authority's consideration of the applicant's claims surrounding his father's position as a policeman of Tamil ethnicity reflects a failure to apply the required "what if I am wrong" approach.[29] [29] applicant's submissions at [26]-[31] The applicant relies on:a)the "limited weight" attached by the Authority on the complaint/card receipt (Complaint Card) from the Human Rights Commission in Batticaloa;[30] andb)the use of the term "will likely" in [32] of the Authority’s decision[31] where the Authority stated, "I consider that the marginalisation, discrimination and other pressures the applicant's father has experienced in the past will likely be tempered by significant changes in the Country...", as indicating doubt in the Authority’s findings.[30] applicant's submissions at [26][31] CB 169
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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