BZN16 v Minister for Immigration
[2017] FCCA 1067
•22 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZN16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1067 |
| Catchwords: MIGRATION – Immigration Assessment Authority – no jurisdictional error identified – the findings made by the Authority that the risk of harm was confined to the applicant’s home area was open on the evidence and cannot be said to lack an evident and intelligible justification – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473BC, 476, Part 7AA |
| Cases cited: SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 68 |
| Applicant: | BZN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS AUTHORITY |
| File Number: | SYG 1986 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 22 May 2017 |
| Date of Last Submission: | 22 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar On a direct access basis |
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Grant leave to the Applicant to file in Court on or before 5:00pm on 23 May 2017 an amended application in the form of grounds identified in the Applicant’s submissions filed on 18 May 2017.
The amended application the subject of leave granted by the Court is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1986 of 2016
| BZN16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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 7 July 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant departed Sri Lanka by boat on 4 September 2012 and resided at Batticaloa from 1990 until 2012. The applicant applied for a subclass 790 Safe Haven Enterprise visa on 7 October 2015.
The delegate’s decision
The applicant claimed to fear harm by reason of his ethnicity, political opinion, by reason of being a member of a particular social group, as a failed asylum seeker, or as someone who illegally departed Sri Lanka. In particular, the applicant claimed to fear harm from the TMVP on return to Sri Lanka for reasons of an actual or imputed political opinion.
On 20 May 2016 the applicant did not meet the criteria under the Act for the grant of a visa. The delegate in the course of reasons made express reference to the penalties that can be imposed by reason of leaving Sri Lanka illegally. The delegate referred to the DFAT country information in relation to the obtaining of bail on their own personal surety immediately by the magistrate or may be required to have a family member act as guarantor. A reference was made to if the applicant is bailed, there are rarely any conditions and if there are, they are imposed on a discretionary basis.
The delegate found the applicant may be issued a fine and released or if he pleads not guilty he will be released on his own personal surety. The delegate found on the evidence that persons who depart Sri Lanka illegally are subject to the terms of the Immigrants and Emigrants Act and found that this was a law generally applicable and did not amount to persecution as the law does not amount to discrimination. The delegate identified the applicant is not an excluded fast track review applicant.
The Authority’s decision
On 25 May 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter explained that there is only exceptional circumstances in which the Authority could receive new information and provided a fact sheet and practice direction giving the applicant an opportunity to provide new information and submissions. The applicant through his migration agent, provided submissions on 14 June 2016. Relevantly, those submissions made express reference to the applicant facing the Magistrates Court and the prospect of a fine for illegally leaving the country.
Information before the Authority
The Authority in its decision identified the applicant’s background and identified the material referred under s.473CB of the Act. The Authority noted that no new information was provided but identified the submissions that had been provided on the delegate’s decision and was satisfied that they contained no new information and expressly referred to having considered those matters in the Authority’s decision.
Consideration of the applicant’s claims
The Authority set out the applicant’s claims for protection. In relation to the applicant’s claims relating to the TMVP, the Authority was satisfied the applicant was a low-level supporter for the TNA and found on the evidence that the applicant’s political views to be compelling and accepted the TNA reflects his values.
Consideration of refugee convention criterion
The Authority found that the applicant’s involvement in politics may cause him again to be the target of threats and violence from the TMVP. The Authority found that there is a real chance the applicant would be targeted for serious harm by the TMVP if he returns to his home region of Batticaloa.
The Authority found given the link between the TMVP and security forces in the area, that the Authority accepted the applicant’s claims he would not be able to obtain effective protection from local authorities in his home area.
The Authority referred to s.5J(1)(c) of the Act which states that the real chance of persecution must relate to all areas of a receiving country. The Authority found, while it accepted there is a real chance of the applicant being harmed in his home area for the reasons articulated by the Authority, the Authority was not satisfied there is a real chance the applicant would face serious harm outside of his home country in Batticaloa. In support of that reasoning, the Authority noted that, while it accepted the applicant may not be able to obtain the protection of the Sri Lankan Authority in his home area from any harm threatened or inflicted by the TMVP, the Authority found that the Sri Lankan authorities in terms of security forces would not have any interest in the applicant directly. The Authority found that the applicant was a low‑level political supporter of the TNA with no connections to the LTTE. The Authority found there was nothing in the applicant’s profile or past that would lead him to be a target for harm by the Sri Lankan authorities.
The Authority made reference to the country information in respect of the TMVP being active in particular areas but found there was no country information that indicates the group has control or influence outside those areas. Even in the event that it did, the Authority was not satisfied the TMVP would have any interest in the applicant outside his home area. The Authority was satisfied that the risk of harm to the applicant is confined to his home area in Batticaloa. The Authority was not satisfied the applicant is of broader interest to the TMVP such that they would seek to find him or harm outside his home area, such as in a major city like Colombo.
The Authority did not accept that the applicant would face a real chance of harm outside Batticaloa for expressing a pro-Tamil political opinion. The Authority noted that country information advises that Sri Lanka has a diverse political landscape, with 64 registered political parties representing ethnic, religious or ideological interests. The Authority found that there was no official laws and policies that discriminate against political groups. The Authority noted that the recent presidential and parliamentary elections were described as peaceful, orderly and credible. The Authority also noted that the TNA has a significant national presence. The Authority found outside Batticaloa that the applicant could support the TNA without interference. The Authority did not accept that there is a real chance of the applicant being seriously harmed on this basis in all areas of Sri Lanka.
The Authority considered and made adverse findings in relation to the applicant’s other claims. The Authority found that it was not satisfied the applicant will face the real chance of being seriously harmed based for reasons of his Tamil ethnicity. The Authority was not satisfied the applicant faced the real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil ethnicity or for being a Tamil from the East of Sri Lanka.
The Authority found that the Sri Lankan authorities would have no interest in the applicant on the basis of an LTTE connection and there is no real chance of him being harmed on this basis if he returns to Sri Lanka in the reasonably foreseeable future. The Authority was not satisfied that any adverse political opinion would be imputed to the applicant on the basis that he is a Tamil, a failed asylum seeker returning and a TNA supporter. The Authority was not satisfied there was a real chance the applicant would face serious harm on return on this basis.
The Authority referred to the applicant’s illegal departure. The Authority found that the applicant would likely be charged and fined under the Immigrants and Emigrants Act and then released. The Authority found that the applicant would not face any chance of imprisonment, but it is likely that he will be fined. The Authority found the applicant has the support of family, even from Batticaloa and found the imposition of a fine, surety or guarantee would not of itself constitute serious harm. The Authority referred to the conditions in the prisons are poor due to lack of resources, overcrowding and poor sanitation and found that any detention of the applicant would be brief and would not constitute serious harm as defined in the Act.
The Authority was satisfied that the imprisonment and penalties of the Immigrants and Emigrants Act are laws of general application that apply to all Sri Lankans equally. The Authority found the law is not discriminatory on its terms, nor is there any country information that supports that the law is applied in a discriminatory or that is selectively enforced.
Having considered the applicant’s claims individually and cumulatively, the Authority was not satisfied that there is any process or penalties that the applicant may face as a person who left Sri Lanka illegally, returning to Sri Lanka, which would amount to a real chance of serious harm. The Authority was not satisfied that any process or penalty that the applicant may face on return to Sri Lanka because of his illegal departure would constitute persecution for the purpose of the Act.
The Authority found that there was no real chance that the applicant would suffer serious harm in Sri Lanka in the reasonably foreseeable future on the basis of his ethnicity and imputed political opinion to LTTE, his parents’ wealth, his political support for the TNA and opposition to the TMVP, his illegal departure, as a returnee or failed asylum seeker, or on account of any characteristic, whether considered singularly or cumulatively.
The Authority found that the applicant’s real chance of persecution does not relate to all areas of the receiving country, and under s.5J(1)(c) of the Act was not satisfied the applicant has a well-founded fear of persecution. I note that the Authority in its decision referred to Afghanistan, however the Authority’s decision clearly identifies the applicant is from Sri Lanka. The reference to Afghanistan is an obvious typographical error and the adverse finding made under s.5J(1)(c) of the Act was an adverse finding in relation to the applicant’s fears of persecution in Sri Lanka. No submission was made to the contrary. The Authority found that the applicant did not meet the definition of refugee under s.5H(1) of the Act and did not satisfy the criteria under s.36(2)(a) of the Act.
Consideration of complementary protection criterion
The Authority then turned to the issue of complementary protection. The Authority identified for the following reasons it was satisfied that it would be reasonable for the applicant to relocate to an area outside Batticaloa, such as Colombo. The Authority made reference to the applicant being asked at the interview whether he could live in another area of Sri Lanka to avoid the harm he fears. The Authority noted the applicant’s response to the TMVP is associated with the Sri Lankan government and that the applicant claimed that they are everywhere and Tamils remain in the minority.
The Authority made reference to the finding that, whilst the applicant would be at risk from the TMVP if he returns to his home area, the Authority found that the risk of harm from the TMVP was confined to his home area. The Authority also identified having found that the Sri Lankan authorities would have no interest in the applicant for any other reason if he returned to Sri Lanka, including if he continued to support the TNA outside of Batticaloa. The Authority did not accept that the applicant would need to live in hiding.
The Authority referred to the Sri Lankan Constitution allowing any citizen “freedom of movement and choosing his residence within Sri Lanka” and made reference to country information in relation to internal relocation.
The Authority specifically referred to the applicant’s personal circumstances, identifying that the applicant continues to have family support in Sri Lanka and that the applicant is educated, has considerable work experience, trade skills and based on references provided in support of his application, that the applicant was a well-regarded young man. The Authority accepted that the applicant has experienced a degree of trauma and may feel depressed in his current situation, but found there are no obvious reasons why he could not relocate to another area where the risk of harm to him from the TMVP is not present, such as a major city like Colombo.
The Authority found in regard to all of the circumstances and the current country information, that it was satisfied that it would be reasonable for the applicant to relocate to Colombo to avoid significant harm that he may encounter if he were to return to live in his home region in Batticaloa. The Authority found that there is not a real risk the applicant would suffer significant harm outside of Batticaloa.
Considering all the circumstances, the Authority found it would be reasonable for the applicant to relocate to an area such as Colombo. Accordingly, the Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm.
Accordingly, the Authority found that the applicant did not meet the criteria under s.36(2)(aa) of the Act. The Authority found the applicant was not a person with respect to whom Australia has protection obligations and confirmed the decision under review.
Before this Court
Mr Kumar, counsel on behalf of the applicant, identified 4 grounds in submissions filed on 18 May 2017. The Court made an order granting leave to the applicant to rely upon the 4 grounds identified in Mr Kumar’s submissions and made a direction for the filing of amended application to take place on or before 23 May 2017.
The grounds of the amended application the subject of leave, with the exception of ground 4 are as follows:-
Ground 1
1. The Authority found that there was real chance that would be seriously harmed for his political support for TNA (CB 213; IAA Decision p14 at (70]; CB 214; IAA Decision p14 at (77). The Authority finds it is reasonable for the Applicant to relocate to Colombo: (at 77) The Authority committed jurisdictional error made findings by having regard to the entirety of issues and I or failing to address all relevant matters in relation to the applicant's circumstances. The erred when it failed to address whether the risk was local and whether the Applicant would be able to avoid such risks.
Particulars
1.1 The evidence relied upon by the Authority's finding in support the relocation findings does not address at the relevant matters (such as family network) but relies on the Authority 's finding on country in formation that TMVP and associates only operative only in the north rather than addressing the relevant issues supporting the conclusion.
1.2 The Authority failed to deal with reasonableness and practicality of relocating in accordance with the Act.
1.3 The Authority has failed to address the Applicant's claims of fear through out Sri Lanka.
1.4 The Authority has committed jurisdictional error.
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 I 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 J 958 (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 [59]; [68]) in poor conditions (IAA at [90]).
(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 [91) in the construction that the detention for illegal departure:
(1) the expression “intended to cause” in the definition of “degrading treatment or punishment" in s5(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 [68]).
(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 to Sri Lanka without putting 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.
Consideration
The Court notes in relation to the grounds, Mr Kumar of counsel made a formal submission in relation to ground 2. In respect of ground 2, Mr Kumar accepted that this court was bound by the decision of the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 68. Mr Kumar of counsel submitted that the decision was wrong but accepted that this Court was bound to follow the decision of the Full Court. That was a proper course for Mr Kumar to take to preserve his client’s right in respect of that ground.
There was a fourth ground that Mr Kumar of counsel initially raised in respect of a certificate in the present case concerning the applicant’s identity. The Court raised with Mr Kumar that this was not a case where the applicant’s identity played any role in the adverse findings by the Authority and Mr Kumar confirmed that ground 4 was abandoned.
Ground 1
In relation to ground 1, Mr Kumar of counsel took the Court to the applicant’s statement and in particular, the applicant’s claims concerning ongoing information since he arrived in Australia from his parents that the TMVP members have been calling them or going to his home asking for him and exhorting money from them in the applicant’s home area of Batticaloa. Mr Kumar submitted that there should have been an express finding in respect of the applicant’s concerns in respect of the ongoing interest of the TMVP members, as identified in his statement in determining whether or not the applicant had a well-founded fear of persecution in all areas of Sri Lanka.
The Authority referred to the applicant’s claims in respect of threats to his family and accepted that his family had received threats of extortion in the past and accepted that they may have paid amounts to unknown people to avoid harm. The Authority found that the unknown persons were either members of the TMVP or intelligence groups. The Authority made express reference to the applicant’s assertions that the TMVP are still interested in him and that they had spoken to his mother and that they were still looking for him.
On a fair reading of the Authority’s decision as a whole, it is apparent that the Authority made findings to the effect that there is a real chance that the applicant would be targeted for serious harm by the TMVP if he returns to Batticaloa. The Authority was not satisfied that the TMVP would have any interest in the applicant outside his home area. The Authority was satisfied the risk of harm for the applicant was confined to his home area in Batticaloa. Those were findings adverse to the applicant that were open on the evidence before the Authority and cannot be said to lack an evident and intelligible justification. Those findings subsume the applicant’s claims in respect of the ongoing alleged interest expressed by the TMVP to the applicant’s family.
Mr Kumar of counsel also submitted that in determining whether or not the applicant was a refugee or entitled to the benefit of complementary protection, that the Authority was bound to consider whether or not it was practical for the applicant to relocate. I accept the submissions of the first respondent that in relation to the issue of whether the applicant has a well-founded fear of persecution, under s.5J of the Act, that what is required under s.5J(1)(c) of the Act is that the real chance of persecution relates to all areas of the receiving country. An element of reasonableness is incorporated under s.5J of the Act. The Authority correctly identified the relevant law in relation to whether the applicant was a refugee and made adverse findings that were open to it in that regard.
Mr Kumar’s submitted that the Authority had failed to consider whether it was practical for the applicant to relocate. For the purpose of complementary protection, that is a provision that does expressly incorporate in s.36(2B)(a) of the Act, being the question of whether it is reasonable for the applicant to relocate. I accept that there is no express reference by the Authority to the term practical in the reasoning of the Authority. There is no magic in that term. Rather, it is necessary for the Authority to have identified the reasons why, in the applicant’s particular circumstances it would be reasonable for the applicant to relocate. The Authority did so in the present case. By referring to the applicant’s personal circumstances, work experience, personal trauma and depression, the Authority was clearly taking into account the practicality for the applicant to reasonably relocate. I am not satisfied that the Authority failed to correctly apply the relevant law. I find that there is no jurisdictional error of the kind identified in ground 1.
Ground 2
In relation to ground 2, for the reasons I have already given, this Court is bound by the decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 68. No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, Mr Kumar of counsel contended that the Authority should have exercised a power under s.473DC of the Act to invite the applicant to be heard in relation to whether or not he would be able to secure bail. It is apparent from the delegate’s decision that the issue of the applicant’s illegal departure and the application of Immigrants and Emigrants Act was an issue on which the applicant was on notice from the delegate’s decision. Indeed, the applicant’s submissions made reference to the consequences of the application of that Act. There was no request in those submissions for any exercise of power under s.473DC of the Act.
It was not necessary for the Authority in the circumstances of the present case to address in its reasons the discretionary consideration under s.473DC of the Act. I accept that there can be circumstances in which the exercise of that power could be the subject of challenge on the ground of being legally unreasonable. The circumstances of the present case do not support any unreasonableness by the Authority in not raising with the applicant whether or not he would be released on bail or able to secure bail. Accordingly, no jurisdictional error is made up by ground 3.
Conclusion
The amended application, the subject of leave granted by the court, is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 8 June 2017
1
2