CHA17 v Minister for Immigration

[2017] FCCA 2715

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHA17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2715

Catchwords:
MIGRATION – Application for Safe Haven Enterprise visa (subclass 790) – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa)

Applicant: CHA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 494 of 2017

Judgment of: Judge Jarrett

Hearing date: 7 November 2017

Date of Last Submission: 7 November 2017

Delivered at: Brisbane

Delivered on: 9 November 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 29 May, 2017 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.58.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 494 of 2017

CHA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. By his application or review filed on 29 May, 2017 the applicant seeks review of a decision of the second respondent given on 18 May, 2017 which affirmed a decision of a delegate of the first respondent not to grant the applicant a Safe Haven Enterprise (subclass 790) visa.

2. The basis of the applicant’s judicial review application is not entirely clear.  His application sets out a single ground of review in these terms:

   The Immigration Assessment Authority and the Delegate of the Minister for Immigration and Border Protection erred in law in making his decision. 

3. On 7 August, 2017 I made directions which permitted the applicant to file and serve any amended application that he wished to pursue by 25 September, 2017.  He was required to file and serve written submissions in support of his application for review by 10 October, 2017.   He has done neither of those things.

4. The first respondent opposes the application.  The second respondent enters a submitting appearance.

5. I have written submissions from the first respondent filed in accordance with the Court’s directions.

6. For the reasons that follow the application for review does not demonstrate any jurisdictional error on the part of the second respondent.  The application must be dismissed with costs.

Background

1. The applicant is a citizen of Sri Lanka born on 18 October, 1982.  He arrived in Australia by boat at Christmas Island on 18 April, 2013.  He attended an arrival interview on 26 May, 2013. 

2. The first respondent lifted the bar imposed by s.46A of the Migration Act 1958 (Cth) and on 31 August, 2016 the applicant made an application for a subclass XE-790 Safe Haven Enterprise visa.

3. The applicant, having entered Australia by sea at an excised offshore place, was an unauthorised maritime arrival. As the first respondent submits, a person who is an unauthorised maritime arrival who entered Australia on or after 13 August, 2012 but before 1 January, 2014, who has not been taken to a regional processing country and for whom the first respondent has lifted the s.46A bar and who has made a valid application for a protection visa, is a fast track applicant. The applicant is a, somewhat ironically termed, “fast track applicant”. He is also a “fast track review applicant”.

4. On 28 February, 2017 a delegate of the first respondent refused the applicant his visa.  The decision was a “fast track decision”.

5. In accordance with s.473CA of the Migration Act 1958 (Cth), on 3 March, 2017 the matter was referred to the second respondent for review. The applicant was notified by letter sent the same day.

6. The second respondent was required to review the delegate’s decision on the papers in accordance with s.473DB of the Act.

7. On 18 May, 2017 the second respondent made a decision to affirm the delegate’s decision.

8. On 29 May, 2017 the applicant applied to this Court for orders quashing the second respondent’s decision and for the issue of a writ of mandamus, directed to the second respondent, requiring it to remake its decision according to law. 

The second respondent’s decision

1. The applicant claimed that he had a well-founded fear of persecution, based on claims which may be summarised as follows:

   a)The applicant’s name is the same as that of a prominent figure in the Liberation Tigers of Tamil Eelam and that as a result he had been suspected by the Sri Lankan Army and Sinhalese people of having links to the Liberation Tigers of Tamil Eelam;

   b)The applicant’s father died after being arrested by the Sri Lankan Army in 1990 on suspicion of being associated with the Liberation Tigers of Tamil Eelam.  His father was severely beaten and tortured for nearly six months and died two days after being released.

   c)In 2006, the applicant was on a beach where a Tamil person had been stabbed and killed.  He was arrested and detained for six months during which time he was severely tortured and beaten and his fingers were broken.  He was released after his friend confessed to the murder. 

   d)In around 2008 a Sinhalese person who lived nearby the applicant’s house was shot.  The applicant was taken to the police station and beaten on the way and accused of being a Liberation Tigers of Tamil Eelam tiger.  He was charged with murder but the charges were dismissed for lack of evidence. The deceased person’s family blamed the applicant for the death and they, and other Sinhalese people, thought he was an Liberation Tigers of Tamil Eelam supporter because of his name. The deceased person’s family took every opportunity to attack the applicant.

   e)About a year after the deceased person’s funeral, the applicant was hired to drive three people to Pulmoddai, a Liberation Tigers of Tamil Eelam-controlled area.  He was stopped by the army and had his identification card taken.  He was forced to kneel for over three hours because they noted his name.  His mother had to sign papers so he could be released. 

2. At his protection visa interview, the applicant also claimed that:

   a)His mother’s sister was killed 15 years ago in the Jaffna area as she was suspected of having Liberation Tigers of Tamil Eelam connections and that he may be imputed with Liberation Tigers of Tamil Eelam links on account of this family connection as well as his name.

   b)The criminal investigation department had visited his home and spoken with his brothers a few days after his departure from Sri Lanka in March 2013, and they told him that it was good he had left the country.

   c)If he were to return to Sri Lanka, he would be taken into custody by the criminal investigation department and if he was released, he would continue to be harassed and beaten by Sinhalese in the village.

3. The second respondent accepted that the applicant’s father was detained and was severely mistreated by the Sri Lankan Army on suspicion of links to the Liberation Tigers of Tamil Eelam and that he died as a result of his treatment.

4. The second respondent also accepted that the applicant may have been mistreated while on remand for his suspected involvement in the 2006 murder, but not to the extent claimed and found that through due process, this matter was resolved in the applicant’s favour.

5. The second respondent found that the 2008 criminal proceedings were also resolved in the applicant’s favour.  It accepted that the deceased person’s family may have confronted him and tried to provoke him but took no more serious action than that.  Given the passage of time since the death and the nature of past encounters, the second respondent found that the applicant did not face a real chance of harm in the reasonably foreseeable future. 

6. The second respondent did not accept the applicant’s claim that family members in Sri Lanka told him that criminal investigation department personnel had been searching for him in connection with the murder.  The second respondent found that, at the time of his departure from Sri Lanka, the applicant was not of interest to the Sri Lankan authorities in respect of the 2006 and 2008 murder cases.

7. The second respondent accepted the applicant’s claim to have been detained for three hours when hired to drive to Pulmoddai in 2009.  However, it found that he remained living in the same area for four years thereafter without incident.

8. The second respondent accepted that the applicant may have suffered some harassment on account of his name.  However, it did not accept that he was imputed to have any Liberation Tigers of Tamil Eelam links either through his aunt or his name.  It did not accept that his profile would fall within any of the categories that the country information to which the second respondent referred suggested would be of potential interest to the Sri Lankan authorities.  It did not accept that the applicant faced a real chance of serious harm from Sri Lankan authorities or members of the Sinhalese community due to any imputed links to the Liberation Tigers of Tamil Eelam, either through his aunt or because of his name.

9. After considering the applicant’s claims and DFAT country information suggesting that the treatment of Tamils had improved significantly under the Siresena Government, the second respondent was not satisfied that the applicant would face a real chance of harm by reason of being a Tamil. 

10. The second respondent considered the treatment the applicant might receive if he was returned to Sri Lanka. It found that the treatment to which he was likely to be subject under the Sri Lankan Immigrants and Emigrants Act 1949 was not discriminatory on its face and was not applied in a discriminatory manner. Rather, it was a law which applied to all Sri Lankans. On that basis, it found that the treatment of the applicant under the I & E Act would not amount to persecution within the meaning of the Migration Act. The second respondent also found that any action under the I & E Act would not amount to serious harm or significant harm for the purposes of the Migration Act.

11. The second respondent found that the applicant did not meet the definition of refugee in s.5H(1)of the Migration Act and did not meet the criteria specified in s.36(2)(a) of that Act.

12. The second respondent was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk that he would suffer significant harm. The second respondent therefore found that the applicant did not meet s.36(2)(aa) of the Migration Act.

Grounds of review

1. I have set out the applicant’s ground of review at the commencement of these reasons.  The ground is particularised and has not been explained or expanded either by an amended application for review, any written submissions or any oral argument on the hearing of this application.

2. The failure to particularise a ground of review is itself sufficient to warrant dismissal of this application.  But more than that, a fair reading of the second respondent’s decision does not reveal any error on the part of the second respondent, be that jurisdictional error or otherwise.

3. The second respondent understood the claims made by the applicant in his visa application. The applicant did not submit to the contrary. In my view the second respondent correctly identified the tests that it had to apply, both in respect of s.36(2)(a) and 36(2)(aa) of the Migration Act and applied those tests to the facts as found by it.

4. In the hearing before me, the applicant was unable to further expand upon his ground of review.  Rather, he emphasised that his life was at risk if he was returned to Sri Lanka and that the second respondent’s decision was wrong.  That is to say, he sought that I interfere with the second respondent’s core findings of fact.  However, no reason sufficient to authorise interfering with those findings of fact is demonstrated in the material, or by the applicant’s arguments.

Conclusion

1. No jurisdictional error has been identified by the applicant.  I can identify no jurisdictional error in the second respondent’s decision.  The findings made by the second respondent were open to it.  It applied the correct legal principles and asked itself the right questions.  The second respondent’s decision is a privative clause decision and therefore not subject to review.

2. The application must be dismissed with costs, which I fix in the amount of $7,328.58.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 9 November 2017