CBN18 v Minister for Home Affairs - [2019] FCCA 1265

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBN18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1265

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – whether the Authority failed to properly consider the applicants’ claims – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

Collector of Customs v Pressure Tankers PTY LTD and PozzolanicEnterprises

(1993) 43 FCR 280.

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

NABE v the Minister for Immigration and Multicultural and Indigenous Affairs

(No.2) (2004) 144 FCR 1.

S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216

CLR 473.

First Applicant:

CBN18

Second Applicant:

CBO18

Third Applicant:

CBP18

Fourth Applicant:

CBR18

Fifth Applicant:

CBS18

Sixth Applicant:

CBT18

Seventh Applicant:

CBU18

Eighth Applicant:

CBV18

Ninth Applicant:

CBW18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1161 of 2018

Judgment of:

Judge Humphreys

Hearing date:

14 May 2019

Date of Last Submission:

14 May 2019

Delivered at:

Parramatta

Delivered on:

14 May 2019

REPRESENTATION

Counsel for the Applicants:

Mr Aleksov

Solicitors for the Applicants:

Playfair Legal

Counsel for the Respondents:

Ms Douglas-Baker

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application is dismissed.
The first and second applicant pay the first respondent’s costs fixed in the amount of $7000.00.

DATE OF ORDERS: 14 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1161 of 2018

CBN18

First Applicant

CBO18

Second Applicant

CBP18

Third Applicant

CBR18

Fourth Applicant

CBS18

Fifth Applicant

CBT18

Sixth Applicant

CBU18

Seventh Applicant

CBV18

Eighth Applicant

CBW18

Ninth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review by a family unit consisting of the first applicant, CBN18, his spouse, CBO18, their five children and two nephews against the decision of the Immigration Assessment Authority (“the Authority”) of 28 March 2018 to refuse each of the applicants a Safe Haven Enterprise visa.

Background

The applicants are Sri Lankan nationals of Tamil ethnicity and Christian faith. They departed Sri Lanka and arrived in Australia as unauthorised maritime arrivals in two groups. The first group being in November 2012, consisting of the fourth and fifth applicants and the balance on 16 April 2013.
It was only the first and the second applicants who advanced claims to protection based on their history and fears. The remaining applicants, being the children, were on the basis of being a family unit.
Various claims were made during the course of the interviews conducted by Australian officials, which are outlined in what is a lengthy Authority decision that runs to 125 paragraphs and 28 pages. The claims include the applicants being stolen from in Sri Lanka, the first applicant being forced to work for Sinhalese people for no pay and being discriminated against due to being of Tamil ethnicity. In relation to the first applicant, he made claims of being beaten, taken by authorities, and that the family had to pay bribes to police for his release. Claims were also made that stones were thrown at the applicants’ house and that the third applicant, the daughter of the first and second applicant, was the subject of serious sexual harassment.
The Authority rejected the claims of needing protection and instead found that the first applicant, and indeed the second applicant, came to Australia for the purposes of a better education and health facilities and for a peaceful life. In so doing, the Authority accepted evidence that Sinhalese people had thrown stones at the applicants’ house and that this had happened to other Tamil people.
The Authority found that the first applicant did not have an adverse profile with Sri Lankan authorities as a Liberation Tigers of Tamil Eelam (“LTTE”) supporter and was not at risk upon return to Sri Lanka of torture, monitoring or surveillance amounting to persecution.
No claim was made as to persecution on the basis of religion for reasons of Christian faith. Country information indicated, according to the Authority, no real chance of harm upon the applicants return and thus the complementary protection requirements were not met. The Authority did accept that the applicants would face legal action upon their return as persons who have left Sri Lanka illegally.

Grounds of Appeal

An amended application with new grounds of appeal was filed on 7 May 2019. Leave was granted for the applicant to rely upon these amended grounds.
The first ground is that at paragraphs 55 to 57 of the Authority’s reasons, having accepted that stones were thrown at the applicant’s house prior to leaving, no reasons were given as to the conclusion in these paragraphs that this would not occur again upon return. It was suggested that the Authority constructively failed to perform a review as a result.
The second ground notes that at paragraphs 59 to 60 of the Authority’s decision, it was accepted that the third applicant, the daughter of the first and second applicants, had been subject to treatment from boys “showing their nudity” to her as she went to school. It is alleged that the Authority failed to consider this would occur again upon return and whether occurrences of this type amounted to significant harm.
The third ground notes that under the complementary protection requirements, the Authority found the applicants could be detained upon arrival in Sri Lanka as persons who had departed Sri Lanka illegally. It was suggested there was a possibility that they could be held in a prison, albeit briefly. The Authority found this possibility, but did not regard it as amounting significant harm under s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). The applicant suggested that this possibility, in relation to the children, amounted to a failure to consider the requirements of s 36(2A)(d) of the Act being “cruel or inhuman treatment” or s 36(2A)(e) of the Act which is “degrading treatment or punishment.”
During the course of submissions, attention was drawn to the decision of the Full Federal Court of Australia in the matter of ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (“WAEE”), this being a decision of French, Sackville and Hely JJ. At paragraphs 46 and 47 of that decision, their Honours helpfully set out what is good law in relation to the requirements of a tribunal to consider evidence and provide reasons. At paragraph 46, the following was said:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to avert to evidence which, if accepted, might have led to a different finding of fact –
They refer there to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The court then followed with:
– and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a Court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a Court and its reasons –
and I emphasise here –
are not to be scrutinised with ‘an eye keenly attuned to error.’ Nor is it necessarily required to provide reasons of the kind that might be expected of a Court of law.
Then, at para 47:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed by findings of greater generality or because there is a factual premise upon which the contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of the applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of a delegate’s decision, a failure to deal with it in the published reasons may raise a strong influence that it has been overlooked.”
Attention was also drawn to the decision of NABE v the Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 (“NABE”), which was a decision of the Full Court of the Australian Federal Court of Black CJ and French and Selway JJ. It noted within that, at paragraph 62, S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 was quoted:
“Proceedings before the Tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to the applicant, or an applicant’s lawyers, at some later stage in the process.”
The Court in NABE went on to quote from the case of WAEE, where the Federal Court said in that case in paragraph 45:
“If a tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.”
Those cases provide a relevant grounding to the way in which I should consider the applicants’ submissions and the grounds of appeal, because they outline the relevant law that is applicable.
The first ground concerns the throwing of stones at the applicant’s house. The Authority considered the matter and rejected the applicant’s claims as to the frequency of the throwing of stones, noting the applicant had sought the assistance of police regarding the matter. This is particularly referred to in paragraph 57 of the Authority’s decision. The Authority said that they were satisfied that the applicants were not harmed.
“I am not satisfied there is a real chance that these unknown people will throw stones at the first applicant’s house if he and his family return to Sri Lanka. I am not satisfied that it was the Sri Lankan authorities that were throwing stones or that the Sri Lankan authorities were not willing to assist the first applicant if he was able to provide some evidence to support that complaint.”
In my view, when read as a whole rather than as a single sentence, that being that the Authority was not satisfied there was a real chance that these unknown people will throw stones if the applicant and his family were returned. I am satisfied that the Authority did properly consider the matter and gave sufficient reasons. I am satisfied the Authority properly concluded that the events were not as frequent as the applicants claimed and that they had sought police intervention to explain that such incidents were unlikely to be repeated. I accept the submission made by the first respondent that this ground invites impermissible minute scrutiny of the decision, as set out in Collector of Customs v Pressure Tankers PTY LTD and PozzolanicEnterprises (1993) 43 FCR 280 at paragraph 287. I find that this ground cannot be sustained.
Ground 2 concerns the daughter of the first and second applicant being shown, “nudity”. It is submitted that this amounted to serious harm. It was accepted by both parties during the course of discussion that the events described certainly amounted to an act of indecency, possibly and probably serious sexual harassment. It is important to note, however, that it was the first and second applicant that raised this issue; it was not the third applicant personally.
The Authority was satisfied that the events did not cause serious harm in the past. On that basis it cannot be said, if the events were repeated in the future, that they would then amount to serious harm. I am satisfied that the Authority considered the matter. I am satisfied that they considered the impact upon the third applicant. I do not accept that they failed to deal with the claim. The ground in my view, invites impermissible merits review. I find there is no jurisdictional error.
Ground 3 suggests that there is a risk, and it was put to me that it was merely a risk and it was also quite speculative, that the children applicants could be imprisoned upon return. Paragraph 107 of the Authority’s decision notes specifically that the children are not the subject of fines or bail, according to country information. At paragraph 118 of the decision, the Authority specifically found that the criteria in s 36(2)(a) of the Act were not met even if the adult applicants were briefly imprisoned.
This issue was not raised by the applicants during the course of their submissions. In fact it is really a matter that has been raised by the applicants’ counsel post the decision and runs counter to the decisions that I have indicated above in relation to the law. There was no evidence before the Authority that the children would in fact be detained in an adult prison. It is an assumption at best, and speculative, highly speculative, at worst. Certainly there is evidence and material before the Authority that adults would be detained and could be detained in conditions that were less than satisfactory. However, the Authority clearly considered and came to the view that the applicants were not in a situation where they would be subject to serious harm. I am also of the view that as it was not raised by the applicants during the course of the interviews or during the course of their interaction with the Authority, it is not a matter that the Authority was required to deal with. I am therefore not satisfied there was jurisdictional error. I am not satisfied that the Authority failed to take it into account for the reasons set out in NABE.
The application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 24 May 2019