CAF19 v Minister for Immigration

[2020] FCCA 186

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAF19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 186

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to take into account relevant considerations – whether the Authority correctly applied the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: CAF19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1230 of 2019

Judgment of: Judge Street

Hearing date: 3 February 2020

Date of Last Submission: 3 February 2020

Delivered at: Sydney

Delivered on: 3 February 2020

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

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

DATE OF ORDER: 3 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1230 of 2019

CAF19

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 (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 7 May 2019 affirming a 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. The applicant was found to be a Tamil Hindu from the Northern Province and, together with his family, was displaced from their home during conflict. In December 2012, the applicant arrived in Australia as an irregular maritime arrival.

3. On 4 May 2016, the applicant applied for a Safe Haven Enterprise visa. The applicant claimed to fear harm from the Criminal Investigation Department (“CID”) and Sri Lankan authorities by reason of his actual or imputed Liberation Tigers of Tamil Eelam (“LTTE”) membership links and also by reason of his illegal departure from Sri Lanka.  

4. On 5 April 2019, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. 

5. On 11 April 2019, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a fact sheet and Practice Direction which provided the applicant an opportunity to put on new information and submissions. No submissions or new information were provided by the applicant to the Authority. 

6. The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application. The Authority had regard to the material provided by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims.

7. The Authority identified the relevant law. In particular, the Authority identified the law in relation to whether a person has a well-founded fear of persecution at paragraph 8 and the meaning of “refugee” at paragraph 7. The Authority also annexed the relevant statutory provisions as applicable law incorporated into the pagination of its reasons.

8. The Authority accepted that the applicant and his family were displaced during the conflict and held in an internally-displaced persons’ camp (“IDP camp”) during the war. The Authority also accepted that the applicant and his family returned to their home village in 2010. 

9. The Authority found that the applicant’s claims about his treatment in the IDP camp and subsequent visits from the CID were not credible. The Authority found that the applicant’s claims in that regard were internally inconsistent in his protection interview and were also inconsistent with his statement. The Authority set out in detail in its reasons those inconsistencies and the changed accounts given by the applicant.

10. Having listened to the applicant’s protection interview, the Authority found that the applicant gave a poor, repetitive, vague and unconvincing account such that the Authority found that he was not recounting a lived experience but rather repeating a rehearsed few sentences. 

11. The Authority found that the applicant’s statement and the interview were inconsistent in many respects. The Authority identified those inconsistencies in its reasons.

12. The Authority referred to the applicant’s claim at his arrival interview that people came to his sister’s shop and assaulted him and his sister. The Authority noted that, the applicant’s protection interview and statement revolved around CID visits to his home and a request to attend their office or camp.

13. The Authority also considered that the applicant’s claim that his brother-in-law’s wounds put the applicant and his sister under suspicion lacked credibility. The Authority found that, if the applicant’s brother-in-law was a wounded, suspected LTTE person, then it would be difficult to believe that he would not have been targeted, or that the applicant and his sister felt the need to leave Sri Lanka, but not his brother-in-law who remained and arranged their trip. 

14. The Authority referred to the applicant’s claim in his statement that, ‘fortunately he was not targeted by the LTTE’, which is at odds with his protection interview claim where he alleged that he was approached and pressured three times by the LTTE to join them.

15. The applicant also asserted in his statement that he had hidden in the jungle. At the protection interview, however, the applicant initially claimed that he returned to his home upon release from the IDP camp and lived there until he departed Sri Lanka. The Authority noted that it was not until much later in the interview that the applicant amended this and asserted that he was in hiding. 

16. Having identified inconsistencies in the applicant’s evidence, the Authority did not accept that the applicant was tortured, threatened or severely beaten. The Authority did not accept that the applicant was detained or tortured for two days prior to living at the IDP camp. The Authority did not accept that the applicant was questioned weekly. The Authority did not accept that the CID visited the applicant when he returned home and asked him to report to their office camp or that the CID or anyone visited his family fortnightly or monthly since he left Sri Lanka in 2012. The Authority did not accept that the applicant was assaulted, or threatened or of any interest to the authorities. The Authority also did not accept that the applicant, his sister or his family were assaulted or targeted as suspected LTTE members. 

17. The Authority did not accept that the applicant was approached three times by the LTTE to join them. The Authority did not accept that the applicant was asked to report to the CID office or camp, or that the applicant was wanted by the authorities.

18. The Authority did not accept that the Sri Lankan authorities believed that the applicant was an LTTE member or that he had LTTE links or that the authorities were looking for him. The Authority did not accept that the applicant or any of his family were suspected of being LTTE members or of any interest to the authorities after the applicant’s release from the IDP camp. The Authority found that the applicant was not a credible witness and that he had fabricated large parts of his account. 

19. The Authority took into account that the applicant was of Tamil ethnicity and referred to country information. The Authority did not accept that the applicant faces a real chance of harm on the basis of his race, ethnicity, past experiences or having been displaced at an IDP camp and living in a formerly LTTE-controlled area, being the Northern Province. 

20. The Authority accepted the applicant was Hindu. The Authority was not satisfied, however, that the applicant faced a real chance of harm on the basis of his religion. 

21. The Authority referred to the applicant being a failed asylum seeker and took into account country information. The Authority was not satisfied that the applicant faced a real chance of social stigma or resentment amounting to serious harm.

22. The Authority’s reasons at paragraph 41 in the second last sentence have an obvious typographical error in the omission of the words that the applicant does not face a real chance “of harm” in finding employment, accommodation or because of social stigma. A fair reading of the Authority’s reasons makes clear that the Authority was referring, in the context of paragraph 41, to the application of the test in relation to serious harm under the 1951 Refugee Convention in respect of employment, accommodation or social stigma. The typographical error in paragraph 41 does not give rise to any relevant error amounting to a jurisdictional error. It is apparent that it was a typographical mistake in the context of the surrounding and immediately following sentence, which expressly refer to serious harm.

23. The Authority did not accept that the applicant faces any harm as a result of visits from authorities that he may receive when he returns home because the applicant does not have a profile of interest and was never wanted by the authorities. The Authority did not accept that the applicant would be targeted or attract adverse attention from the authorities.

24. The Authority was not satisfied that the applicant faces a real chance of serious harm as a failed asylum seeker who resided overseas in Australia. The Authority accepted that the applicant departed Sri Lanka illegally and that it was likely that the applicant would face questioning at the airport and may be charged and fined upon his return. The Authority did not accept that the applicant faces a real chance of torture and interrogation, or mistreatment upon arrival in Sri Lanka or during questioning, or possible brief detention. The Authority did not accept that the application of the Sri Lanka immigration laws are, on their face, discriminatory or that they are implemented in a discriminatory manner. The Authority was not satisfied that questioning, arrest and being held in an airport holding cell, travel or possible costs for court appearances and the application of a penalty for illegal departure amount to systemic and discriminatory conduct as required by s 5J of the Act. 

25. Taking into account the applicant’s circumstances, the Authority was not satisfied that the applicant had a well-founded fear of persecution from anyone for a reason, or a combination of reasons in s 5J(1)(a) of the Act, now or in the reasonably foreseeable future if he returned to Sri Lanka. 

26. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

27. The Authority referred to the issue of complementary protection. The Authority identified the requirements of s 36(2A) of the Act and the definition of “at risk of significant harm.”  

28. At paragraph 56 of the Authority’s reasons, the Authority considered the treatment for the illegal departure and questioning in detention that the applicant may experience. Having regard to the applicant’s circumstances, the Authority was not satisfied that the treatment the applicant may face, including travel to court appearances and the possible costs and penalties the applicant may face as an illegal departee amounted to an intention to cause severe pain or suffering that can reasonably be regarded as cruel or inhumane in nature, or to inflict extreme humiliation. 

29. The Authority referred in that regard to the treatment and the questioning of the applicant upon his return to Sri Lanka as a failed asylum seeker or returnee. The Authority was not satisfied that there was a real risk that the applicant would suffer significant harm. The Authority did not accept that the applicant would face any difficulties in finding employment and accommodation. The Authority also did not accept that the applicant faces a real chance of social stigma or that the social stigma of resentment amounted to significant harm.

30. The Authority also accepted that the applicant may encounter a visit from authorities upon return but did not accept that this amounted to significant harm. The Authority was not satisfied that the applicant faced a real risk of significant harm as a result of any such visit. The Authority was not satisfied that the authorities have or will have any adverse interest in the applicant. 

31. In these circumstances the Authority was not satisfied that there were 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 that 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.

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

Before the Court

1. These proceedings were commenced on 20 May 2019. On 13 June 2019, 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 have been filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant asserted that there was evidence that he had tendered that was not taken into account. When the Court sought to explore with the applicant why he had not put on any evidence, in respect of the opportunity the applicant had been given to do so and to identify alleged evidence not taken into account, the applicant said that he did not deny that the evidence was taken into account. There was no evidence identified by the applicant that the Authority failed to take into account. 

4. From the bar table, the applicant referred to his sister and alleged that she had been granted a Safe Haven Enterprise visa and that her claims were, in substance, the same as his claims. It is apparent from the Authority’s reasons that the Authority identified the applicant’s references to the existence of a sister and that consideration was given in relation to the applicant’s claims concerning his sister’s shop and the CID visits allegedly looking for the applicant and his sister. The applicant also asserted that his sister’s claims were substantially the same as his and that there must be an error because the Tribunal had accepted it and his sister had been granted a Safe Haven Enterprise Visa. No separate claim was advanced by the applicant or fairly rose on the material before the authority that the applicant feared harm because of his sister.

5. Insofar as the applicant raised claims as to what allegedly occurred involving his sister’s shop and his accounts in relation to the CID looking for him and his sister, the Authority made adverse credibility findings that were open to the Authority for the reasons given by the Authority. Those reasons, including the inconsistencies in the applicant’s accounts between his statement and interview, were logical and rational, and cannot be said to lack an evident and intelligible justification. The applicant’s disagreement with the Authority’s adverse findings in relation to his claims does not identify any jurisdictional error by the Authority.

6. The applicant’s reference to his sister having been granted a visa, in substance, identifies a disagreement with the findings of fact, inviting this Court to engage in merits review. This Court has no power to review the merits.

7. Nothing said by the applicant from the bar table identified any jurisdictional error. 

The grounds

1. The grounds in the application are as follows:

   Ground 1

   IAA made jurisdictional error.

   Particulars

   Authority failed take into consideration complementary protection obligation in that it failed to deal with the issue that during investigation and inquiry Applicant may be subject to mistreatment.

   Ground 2

   IAA made jurisdictional error.

   Particulars

   Base on the evidence before it, Authority failed to apply well-founded fear test.

Ground 1

1. In relation to ground 1, it is apparent from the Authority’s reasons, as summarised above, that the Authority correctly identified the relevant law in relation to complementary protection and appreciated that the applicant had departed Sri Lanka illegally, making a favourable finding for the applicant in that regard. The Authority also identified that the applicant may face questioning and detention but found that this would not amount to significant harm within the meaning of the requirements for complementary protection. That was an adverse finding that was open to the Authority.

2. The Authority’s reference to “treatment” at paragraphs 56, 57 and 58 of its reasons clearly subsumes the applicant’s reference to investigation and inquiry, to which the applicant may be subject.

3. There was no failure by the Authority to take into account a relevant consideration in its deliberations of complementary protection or under the 1951 Refugee Convention. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, the Authority in its reasons correctly identified the relevant law in relation to a well-founded fear of persecution in paragraphs 7 and 8. The Authority expressly found at paragraph 52 of its reasons that the applicant did not have a well-founded fear of persecution. The reasons of the Authority in that regard reflect the Authority correctly applying the real-chance test in respect of the applicant’s claims. There is no basis to find that the Authority failed to apply the well-founded fear real chance test. The applicant’s disagreement with the application of that test does not identify any relevant error. No jurisdictional error is made out by ground 2. 

2. As the application fails to make out any jurisdictional error, the application is dismissed.  

I certify that the preceding forty-five (45) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 3 February 2020 and the parties were provided sealed copies of the Court’s orders

Associate: 

Date:  3 March 2020