BXJ17 v Minister for Immigration

[2020] FCCA 1656

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXJ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1656

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority correctly applied the relevant law – whether the Authority’s decision is affected by bias – whether the Authority took into account relevant considerations – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: BXJ17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 242 of 2017

Judgment of: Judge Street

Hearing date: 22 June 2020

Date of Last Submission: 22 June 2020

Delivered at: Sydney

Delivered on: 15 July 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the First Respondent: Mr M Hawker via Microsoft Teams
Sparke Helmore

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 242 of 2017

BXJ17

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”) under pt 7AA of the Act made on 12 April 2017 affirming the 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. In October 2012, the applicant arrived in Australia as an unauthorised maritime arrival. In March 2016, the applicant applied for a Safe Haven Enterprise visa.

3. The applicant claimed to fear harm, in summary, by reason of his Tamil ethnicity, from the Sri Lankan paramilitary Special Task Force (“STF”), the police Criminal Intelligence Division (“CID”) and because he employed a member of the Liberation Tigers of Tamil Eelam (“LTTE”).

4. On 5 October 2016, the Delegate found that the application failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 7 October 2016, the Authority wrote to the applicant explaining that the application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction, providing the applicant an opportunity to put on new information and submissions. No such documents were provided.

6. The Authority, in its reasons, identified the background to the Safe Haven Enterprise visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act.

7. The Authority referred to country information and was satisfied that there were exception circumstances to justify taking into account a more recent Department of Foreign Affairs and Trade (“DFAT”) country information report.

8. The Authority summarised the applicant’s claims.

9. The Authority accepted that, between 1997 and 2012, the applicant was rounded up many times as part of a group of Tamil males and held for up to an hour. The applicant identified that he was last physically harmed by the Sri Lankan authorities in 1997. The applicant also identified that he was only held briefly in 1997 and then released without reporting or monitoring requirements, which the Authority found to be a strong indication that the authorities had no interest in the applicant after 1998. The Authority also referred to the applicant having been released quickly when arrested and without being charged or further detained.

10. In these circumstances, the Authority did not accept that the applicant’s employment of a person with reported LTTE links imputed the applicant with LTTE connections. The Authority did not accept that CID personnel were asking about the applicant. The Authority did not accept that CID and STF personnel had been to the applicant’s home or that of his family members looking for him.

11. The Authority was not satisfied that the applicant faces a real chance of harm due to the work he undertook for the LTTE in 1997, due to being rounded up and questioned by Sri Lankan authorities or due to his employment of a person purported to have LTTE links.

12. The Authority referred to some police documents relating to a minor motor vehicle offence.

13. The Authority referred to country information in relation to Tamils and, after taking the same into account, found that the applicant does not face a real chance of harm in relation to being a Tamil.

14. The Authority accepted that the applicant would be returning to Sri Lanka as an asylum seeker who left Sri Lanka illegally. The Authority took into account the Immigrants and Emigrants Act (Sri Lanka) and found that a brief period of detention does not rise to the level of threat to the applicant’s life or liberty or to significant physical harassment or ill treatment or any other form of serious harm for the applicant.

15. The Authority accepted that the applicant will be required to pay a fine but was not satisfied that this or the provision of a surety amounts to serious harm, nor was the Authority satisfied that the payment of the fine, being held in detention for the short period of time and questioning cumulatively amounts to serious harm.

16. The Authority found that the Immigrants and Emigrants Act (Sri Lanka) is not discriminatory on its face, nor is it applied in a discriminatory matter. The Authority found that the treatment the applicant will face does not fall within the meaning of persecution under the Act.

17. The Authority found that the applicant does not face a real chance of persecution from the Sri Lankan authorities, either as a failed Tamil asylum seeker or as returnee from the West or for any other reason.

18. 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 did not meet the criteria in s 36(2)(a) of the Act.

19. 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 the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

20. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 3 May 2017. On 19 July 2017, a Registrar of the Court made orders providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. The applicant maintained in oral submissions that what he advanced had happened to him and that he should have been found to meet the criteria. The applicant also maintained that the Authority should have accepted his claims.

3. It is apparent that the Authority did primarily accept the applicant’s claims. The Authority found that the absence of the applicant being arrested and the fact that the applicant was released and not put on reporting conditions was consistent with the authorities having no continuing interest in the applicant. That was a logical and rational matter for the Authority to take into account. The applicant’s oral submissions, in substance, invited merits review. This Court has no power to review the merits.

4. Nothing said by the applicant orally identified any jurisdictional error.

Grounds in the application

1. The grounds of the application are as follows:

   1. Jurisdictional error.

   2. Bias based on conscious or unconscious prejudice by ignoring relevant material.

   3. Identifying a wrong issue on a wrong question.

Ground 1

1. In relation to ground 1, a bare assertion of jurisdictional error without particulars is incapable of making out any error. On the face of the Authority’s reasons, the Authority complied with its statutory obligations in the conduct of the review. The Authority’s reasons reflect the making of dispositive findings in respect of the applicant’s claims that were open to the Authority for the reasons summarised above. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, no relevant material has been identified that the Authority ignored. There is no conduct that has been identified to support any adverse finding of bias. The adverse findings by the Authority are not conduct by reason of which a fair-minded lay observer might reasonable apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. Further, on the face of the Authority’s reasons, the Authority approached the review with an open mind reasonably capable of persuasion as to the merits. No bias is made out. No jurisdictional error is made out by ground 2.

Ground 3

1. In the absence of particulars, ground 3 is incapable of making out any jurisdictional error. On the face of the Authority’s reasons, the Authority correctly identified the relevant law. Further, on the face of the Authority’s reasons, there is no basis to find that the Authority identified any wrong question in determining whether the applicant met the criteria for the 1951 Refugee Convention or in relation to complementary protection. The Court accepts the first respondent’s submission that the Authority correctly identified and applied the applicable tests in relation to the 1951 Refugee Convention and in relation to complementary protection and that the language used by the Authority supports these findings. Accordingly, no jurisdictional error is made out by ground 3.

2. As nothing said by the applicant identifies any jurisdictional error and as the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 15 July 2020