BZV18 v Minister for Home Affairs

[2019] FCCA 982

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZV18 & Ors v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 982

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – whether the Authority’s findings lacked a rational and logical connection – whether the Authority failed to address a central claim or integer of a claim – whether the Authority failed to intellectually engage with new information – whether the Authority failed to consider the Convention on the Rights of the Child – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Regina v District Court; Ex parte White (1966) 116 CLR 644

Waterford v The Commonwealth (1987) 163 CLR 54

First Applicant: BZV18

Second Applicant: BZW18

Third Applicant: BZX18

Fourth Applicant: BZY18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1125 of 2018

Judgment of: Judge Humphreys

Hearing date: 11 April 2019

Date of Last Submission: 11 April 2019

Delivered at: Parramatta

Delivered on: 11 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Kumar

Solicitors for the Applicant: Direct Access

Counsel for the Respondents: Mr Knowles

Solicitors for the Respondents: Spark Helmore

ORDERS

1. The application is dismissed.

2. The Applicant is to pay the costs of the First Respondent fixed in the scale amount of $7328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1125 of 2018

BZV18

First Applicant

BZW18

Second Applicant

BZX18

Third Applicant

BZY18

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of Sri Lanka and are of Tamil ethnic background. The four applicants consist of the first applicant, who is the husband of the second applicant and the father of the third and fourth applicants, who are a boy and a girl. The second applicant is the wife of the first applicant and the mother of the third and fourth applicants.

2. The family arrived in Australia on 25 June 2012. They applied for a Safe Haven Enterprise Visa on 30 December 2016. That application was refused by a delegate of the Minister on 25 August 2017. They subsequently applied for a review of that decision by the Immigration Assessment Authority (“the Authority”). A decision was handed down on 5 April 2018, which affirmed the delegate’s decision not to grant the applicants the visas they sought.

3. Each of the applicants now seek judicial review of the Authority’s decision.

Documents before the court

1. A Court book has been tendered to the Court and has been marked as exhibit 1. The most relevant documents that are before the Court include the Authority’s decision, the grounds of appeal filed by the applicants, the written submissions of the applicants and the first respondent’s written submissions.

Background

1. Initially there were some 11 grounds of appeal which were pressed. These have now been reduced to eight, with grounds 4, 5, 8 and 11 as listed in the amended application for review being abandoned.

2. They can be summarised as alleging jurisdictional error or constructively, a failure by the Authority to review or to intellectually engage with the issues that was before it and thus jurisdictional error.

3. The applicants’ claims are set out on page 3 of the Authority’s decision and can be summarised as follows.

4. The first applicant was born in Sri Lanka and he resided there until the age of 12, when he left Sri Lanka due to the fact that his father had been killed during the civil war by the Sri Lankan Army in 1992. Approximately three months after the death of the first applicant’s father, his mother fled Sri Lanka to India, taking the applicant and his two younger sisters. They did not register as refugees but integrated into the Tamil community in Tamil Nadu.

5. The first applicant never had any legal status in India and lived in fear of being deported back to Sri Lanka. The first applicant claims to have participated in pro-Tamil protests in Tamil Nadu, India. The first applicant claims that he will be detained, interrogated, tortured, disappear or killed by the authorities in Sri Lanka if he was returned there. This is due to the first applicant’s Tamil ethnicity, as a suspected member of the Liberation Tigers of Tamil Eelam (“LTTE”), a person who sought asylum in Australia and a person who had left Sri Lanka illegally.

6. The second applicant, being the wife of the first applicant, also claims that she will be detained, interrogated, tortured or disappear as a result of being returned to Sri Lanka. She moved to India with her parents when she was only 5 years old and remained in Tamil Nadu until departing for Australia in 2012. The second applicant never held any legal status in India. The second applicant claims to have participated in pro-Tamil protests with her husband in India. The second applicant says she has no family or extended networks in Sri Lanka. The second applicant also claims she will be the subject of sexual assault or rape, as will her daughter, the third applicant, as Tamil females in Sri Lanka.

7. I note here that the Authority found that, in fact, the second applicant was the only one of the four applicants who had left Sri Lanka illegally. The Authority did not accept that the first, third and fourth applicants could be considered persons who had left Sri Lanka illegally.

8. The third applicant is the daughter. She was born in Tamil Nadu, India, to the first and second applicant. The third applicant never held any legal status in India. The third applicant claims that she will also be subject to sexual assault, she has no family or extended networks in Sri Lanka and will be at increased risk because they have been westernised or may be perceived to be wealthy.

9. The fourth applicant is the first and second applicants’ son. The fourth applicant makes similar claims but also says he will be persecuted by being excluded from the Sri Lankan education system because of his Tamil ethnicity.

10. The Authority made a number of findings. Certainly in the case of both the first applicant and the second applicant, they left Sri Lanka at a young age. The first applicant was 12 and the second applicant was 5 years of age. The children were both born in India. The Authority found that they were illegal residents of India and never registered as refugees.

11. The Authority was satisfied that the applicants left India in 2013, after authorities began enquiring about the legality of their status in India.

12. The Authority accepted that the second applicant left Sri Lanka illegally as a 5 year old and that would have an impact on her return to Sri Lanka as a person who left the country illegally.

13. The Authority noted that each applicant feared harm if returned to Sri Lanka for a variety of reasons, including familial association with the LTTE and subsequent pro-Tamil activity in India. It was noted that the second and third applicants feared sexually based violence as Tamil women. There was also a concern that there had been a data breach by Australian authorities and the applicants’ details would be known to Sri Lankan authorities upon their return.

Grounds of appeal

1. In considering the grounds of appeal, it is important to note that the mere fact that there may be a disagreement with the findings and conclusions of the Authority does not of itself constitute judicial error. The applicants’ complaints where they disagree with the findings cannot invite merits review by the Court, as this Court cannot undertake that.[1]

   [1] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at paragraphs 53 and 54, per Gleeson CJ and McHugh J.

2. This Court is not in a position to undertake merits review. The Court can simply look at whether or not there has been jurisdictional error. A wrong finding of fact will not of itself constitute an error of law.[2]  Unsound reasoning is also not of itself an error of law.[3]

   [2] Waterford v The Commonwealth (1987) 163 CLR 54 at paragraph 14.

   [3]Regina v District Court; Ex parte White (1966) 116 CLR 644 at paragraph 4.

3. Bearing those matters in mind, I now turn to the grounds of appeal. Grounds 1 and 2 suggest that the Authority’s findings that the applicants’ were not involved in pro-Tamil activities in India, given that they say they were, lacks rational or logical connections and raises jurisdictional error in that the Authority failed to ask the correct questions.

4. In my view, the rejection of the claims was based on a finding that it was not plausible that the applicants would be politically active in India and at the same time be in hiding and seeking to not come to the attention of the authorities due to their illegal status. I am satisfied that the finding was logical and rational and having found that the applicants did not participate in activities at all, this deals completely with the issues raised in grounds 1 and 2 of the grounds of appeal.

5. Grounds 3 and 7 claim that the Authority did not consider whether or not the applicants could realistically relocate back to Sri Lanka, that there was a failure to consider the Convention on the Rights of the Child[4] in regards to applicant three and applicant four and did not consider the second applicant’s illegal departure from Sri Lanka. I am satisfied that the Authority did consider the difficulties in relocation. The Authority clearly dealt with it in paragraphs 59 to 62 of the decision.

   [4] Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

6. The issues surrounding the applicants’ children were also clearly dealt with in paragraphs 49 to 55 of the Authority’s decision. This included specific issues as to the first and second applicants’ daughter as a young female Tamil and the issues and the difficulties that she might face.

7. I note that in relation to the Convention on the Rights of the Child, the legislation sets out an exhaustive list of matters in s 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”), which must be looked at. Whilst reference has been made to the Convention on the Rights of the Child, it has not been incorporated into the domestic law and there is no absolute requirement for it to be dealt with. It is dealt with in generality by the relevant criteria that are set out as to whether or not a person satisfies either the refugee criteria or satisfies the complementary protection criteria.

8. The issue of the second applicant’s status as a person who left Sri Lanka illegally as a five year old was also dealt with. Indeed, the Authority came to a conclusion that she was unlikely to face any difficulties or harsh difficulties or real risk as set out in paragraphs 63 to 68 of the Authority’s decision. I am of the view that each of these grounds fails at a factual level. If anything, they invite merits review by the Court.

9. Ground 6 suggests jurisdictional error by failing to ask the correct questions, asking incorrect questions, or arriving at illogical or irrational conclusions regarding the risk to Tamil women. I am of the view that the Authority did properly turn their mind to the relevant country information and was not satisfied that the second and third applicants faced a real chance of harm as Tamil women. This is particularly the case as the second and third applicants were going to be sent back to Sri Lanka as part of a family unit where there would be a male head of the household and there is also another male in the family, that being the fourth applicant.

10. The Authority accepted that there was and is a risk in Sri Lanka of gender-based violence, particularly towards female sole income earners and war widows and that is based on the finding of the Authority.[5] In my view, the Authority clearly turned their mind to that issue and they did not fail to intellectually engage with it.

    [5]See paragraph 54.

11. The Authority found at paragraph 55 that the applicants would be returned to Sri Lanka as a family unit with a male head of household. It also found that there was no risk of family or partner violence. In my view, the questions asked were correct and the conclusions that flowed from those questions were logical from the facts found by the Authority. That ground cannot be made out.

12. Ground 9 suggests that the Authority intellectually failed to engage with the letter from Grama Niladahari’s Office, which is contained within the Court book at page 423. I note here that the Authority found exceptional circumstances in which to admit that document into evidence. It is extraordinary to suggest that having admitted that letter into evidence that the Authority would have failed to consider it. Indeed, the act of actually finding exceptional circumstances means that the Authority must have intellectually engaged with it.

13. From my reading of the decision, the Authority actually engaged with the material contained within the letter but rejected it in terms of the issue of the future land dispute. I note here, particularly the conclusions at paragraphs 27 to 29 of the Authority’s decision. In my view, this ground cannot be sustained.

14. Ground 10 essentially deals with the same issue. The applicants suggested that the Authority’s finding was speculative that, if returned to Sri Lanka, the applicants would not seek to reclaim the family’s land. The first respondent notes, and I agree with them, that this claim is inconsistent with a claim put forward by the applicants that they would be at risk of harm because they were without family land. That is dealt with at paragraph 28 of the Authority’s decision. As to the situation here, if the applicants go back they can either voluntarily engage in trying to seek their land back or they can go and seek to find a new life.

15. I cannot accept that the Authority did not intellectually engage with the issue of land and what the risks might be. It is clear that the Authority did and this ground must also fail.

16. That being the case, I dismiss the application.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 16 April 2019