CKN16 v Minister for Immigration

[2017] FCCA 502

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKN16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 502

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – fast track applicant – whether the Authority made unreasonable findings – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476.

Immigration & Emigration Act 1949 (Sri Lanka)

Cases cited:

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

Applicant: CKN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2350 of 2016

Judgment of: Judge Street

Hearing date: 17 March 2017

Date of Last Submission: 17 March 2017

Delivered at: Sydney

Delivered on: 17 March 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr R White
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2350 of 2016

CKN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. 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 made on 11 August 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

The Applicant’s Claims for Protection

1. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. The applicant claimed to fear harm on the basis of being suspected of links to the LTTE on account of the financial support that his family provided, or that he would be perceived to be wealthy and will be extorted for money, or that he was of adverse interest to the Sri Lankan authorities when he departed Sri Lanka, and by reason of being an illegal departee and a failed asylum seeker. The applicant was born in the Eastern Province of Sri Lanka and left Sri Lanka between 29 July 2001 until December 2004 to work in Saudi Arabia.

3. The applicant returned to Sri Lanka, and then left Sri Lanka to work in Iraq from April 2006 to September 2011. The applicant returned to Sri Lanka and then departed Sri Lanka in July 2012. The applicant arrived on Christmas Island on 17 August 2012. On 29 October 2015 the applicant lodged an application for protection, being a Safe Haven Enterprise (subclass 790) visa. On 27 January 2016 the applicant was interviewed in respect of his claims.

The Delegate’s Decision

Factual Findings

1. The delegate did not accept as credible that the applicant had a profile or perceived association with the LTTE, and was not of any real interest to the Sri Lankan authorities on account of his LTTE involvement prior to leaving Sri Lanka.

2. The delegate did not accept the applicant’s claims that he was suspected of supporting or having links to the LTTE. The delegate found the applicant was not regarded as a person with a profile of someone who had close links or involvement with the LTTE as claimed. The delegate did not accept the applicant’s claims that he has a perceived profile of a wealthy landowner and did not accept that he would be subjected to extortion if he was to return to Sri Lanka.

Refugee Criterion Assessment

1. The delegate did not consider that the applicant’s Tamil ethnicity indicated that there would be a real chance that the applicant would be abducted by Sri Lankan authorities. The delegate found there is no real possibility the applicant would face arbitrary arrest or detention or suffer serious harm on account of simply being a Tamil male from a former LTTE controlled area. The delegate found there is no real possibility that the applicant will face serious harm in Sri Lanka on account of being a failed Tamil asylum seeker.

2. The delegate found that the applicant’s fear was not well-founded. The delegate was not satisfied that there is a real chance of persecution of the applicant for one or more of the reasons mentioned in s.5J(1)(a) of the Act, and that the applicant is not a refugee under s.5H. The delegate found that the applicant fails to meet the criteria under s.36(2)(a) of the Act.

Complementary Protection Criterion Assessment

1. The delegate was not satisfied there were substantial grounds for believing there as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm as required by s.36(2)(aa) of the Act. The delegate found that the applicant was not a person in respect of whom Australia had protection obligations under s.36(2) of the Act.

2. The delegate found that the applicant was not an excluded fast track review applicant.

The Authority’s Decision

Information Before the Authority

1. On 12 July 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority identified that it had been provided with all the documents considered relevant to the applicant’s case by the Department, and that that included all the material the applicant had provided to the Department. The Authority identified that it would proceed to make a decision on the applicant’s case on the basis of the information sent to it by the Department, unless the Authority decides to consider new information.

2. The Authority identified that it can only receive new information in limited circumstances and provided an explanation sheet with that letter explaining the limitations in relation to the receipt of new information. The Authority provided an opportunity to provide submissions. On 5 August 2016, submissions were provided on behalf of the applicant to the Authority by the applicant’s migration agent.

3. The Authority identified the applicant’s background and the outcome before the delegate. The Authority identified that it had referred to the material under s.473CB of the Act.

4. The Authority made reference to the submissions received on behalf of the applicant, and that it did not consider the legal argument to be new information and, accordingly, had regard to it.

Refugee Criterion Assessment

1. The Authority identified the applicant’s claims under relevant law. The Authority made reference to the applicant being detained and questioned at the airport for an hour and a half when he return to Sri Lanka in October 2011 being routine. The Authority found that, given the applicant was released without charge and his passport was not impounded, the Authority was satisfied that the applicant was not suspected by the Sri Lankan authorities of being a member of the LTTE, or an active supporter of the LTTE.

2. The Authority accepted that the applicant’s son had left Sri Lanka and accepted that safety could have been one of the reasons why he left. The Authority found the applicant does not face a real chance of serious harm in the foreseeable future in Sri Lanka because he is a Tamil and originated and lived in an LTTE controlled area. The Authority found the applicant does not face a real chance of serious harm from the SLA, or the CID, or other Sri Lankan authorities because he provided support to the LTTE during the war and is imputed to be an LTTE supporter.

3. The Authority accepted that the applicant had been the victim of extortion, abduction and beating in the past. The Authority accepted that the applicant was subjected to serious harm, and that the applicant’s evidence that this occurred because he was perceived as being wealthy as he had returned from working in Iraq for more than five years in a row. The Authority found that the chance of the applicant being subjected to abduction and extortion that amounts to serious harm to be remote. The Authority was satisfied that the chance of the applicant being subjected to abduction, extortion or any other form of harm from paramilitaries in the foreseeable future was remote.

4. The Authority referred to the fact that the applicant will be charged and convicted for his illegal departure, and fined. The Authority found that the above treatment is prosecution for an offence against the Immigration & Emigration Act 1949 (Sri Lanka) and did not amount to serious harm or significant harm. The Authority found that the procedures under which the applicant as a returnee will be dealt with, and any penalties to which he may be subjected to, will be applied in a non-discriminatory basis under a law of general application, and did not constitute persecution for the purpose of s.5H(1) and 5J(1) of the Act.

5. The Authority found, having considered the applicant’s claims individually and cumulatively, that the Authority was not satisfied there is real chance the applicant will face serious harm now or in the reasonably foreseeable future. The Authority found the applicant’s fear of persecution was not well founded. The Authority found the applicant was not a refugee within s.5H(1) of the Act, and that the applicant failed to meet the criteria under s.36(2)(a) of the Act.

Complementary Protection Criterion Assessment

1. The Authority was not satisfied that there is a real risk that the applicant will face significant harm in Sri Lanka as defined within s.36(2A) of the Act. The Authority was satisfied that the procedures and penalties to which the applicant will be subjected because of his illegal departure will not amount to significant harm as that term is defined under the Act. That is, they will not result in the death penalty, arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

2. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, he will be at real risk of significant harm, as that term was defined in s.36(2A) of the Act. The Authority found that the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Proceedings Before this Court

1. On 24 November 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Grounds of the Application

1. The grounds in the application are as follows:

   Ground 1

   The Authority asked itself the wrong question by taking into account the amount of time that had elapsed since the applicant was subjected to extortion demand after his return to Sri Lanka from Iraq in October 2011 (five and half years ago) (at [54]) and none of the applicant's immediate or extended family members have been harmed or asked to pay money (at [54]) in determining whether there was a real chance that he would face harm

   Particulars

   a. The Authority acted unreasonably in finding that the applicant did not have a real chance or real risk of harm upon return to Sri Lanka as his family did not have any serious problems of harm from extortion after 2011 incident

   b. The Authority erred in considering the duration of time since the last extortion happened in 2011 and none of his family members have been subjected to extortion was negating or reducing the need to assess the real chance of serious or real risk of significant harm to the applicant upon return to Sri Lanka

   c. The Authority committed jurisdictional error

   Ground 2

   The Authority failed to assess applicant's risk profile as imputed to be an LTTE supporter and erred in making unreasonable findings that the applicant did not have a material profile (at[50])

   Particulars

   a. The Authority accepted

   i. The applicant resided in an LTTE controlled area and his family had to pay money to the LTTE on a regular basis (at [32])

   ii. The applicant father was shot when questioned by the SLA about the applicant's support for the LTTE (at [33])

   iii. The applicant's cousin was with the LTTE and killed in 1992 (at [47])

   iv. The applicant provided support to the LTTE during the war

   b. The Authority failed to consider whether there is a real chance that the application could suffer harm after his return to Sri Lanka due to his risk profile as indicated by the UNCHR Guidelines (at [46])

   Ground 3

   The Authority fell into jurisdictional error in dealing with the applicant's claim regarding detention for illegal departure in harsh conditions under s 36(2)(aa) of the Act and in particular did not address the question of knowledge and intention. The actions in putting the applicant in prison would constitute relevant intention to inflict harm.

   Particulars

   a. The Authority failed to address whether the applicant’s detention in harsh condition would be intentionally inflicted (with knowledge of the authorities)

   b. The Authority committed jurisdictional error

   (Errors in original).

2. At the commencement of the hearing the Court explained to the applicant this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that, in summary, this meant the Court was considering whether the Authority’s decision was unlawful or unfair.

3. The Court explained that if satisfied that the Authority’s decision was unlawful or unfair, the matter would be sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed. The Court explained that it would have identified the evidence, and then hear submissions from the applicant, and then hear submissions from the solicitor for the first respondent, and then hear submissions for the applicant in reply.

4. The applicant confirmed that he understood the nature of the hearing as explained by the Court. The applicant did not put any submissions from the bar table.

Consideration of the Grounds

Ground 1

1. In relation to ground 1 in the application, I accept the first respondent’s submissions that the delay and the time that had elapsed in relation to the extortion to which the applicant had been exposed on his return from Iraq, was a relevant consideration and that the adverse finding made by the Authority in relation to the risk to which the applicant would be subjected was reasonable and open on the material.

2. The adverse findings by the Authority cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, it is apparent that the Authority did address the applicant’s profile and fear of being imputed as an LTTE supporter. The Authority made adverse findings that were open to the Authority on the material before the Authority. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, it is apparent that the Authority correctly identified the relevant law and made adverse findings in relation to complementary protection and whether the applicant would be subjected to significant harm. No findings were made to support an assertion that there was an intention to harm the applicant. Ground 3 fails to make out any jurisdictional error.

Conclusion

1. I note that this is a case where there was a certificate issued under s.473GB, and I accept the first respondent’s submissions that the decision in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 does not apply to Part 7AA because of the statutory provisions in that Part. I further accept the submission that there is nothing to identify the Authority as having regard to the certificate or the information in the certificate in its reasons.

2. Further, on the face of the certificate, the document that was identified as a document going to identification or the identity of the applicant, was not in issue before the Authority. The subject matter of the certificate could not possibly have had an impact on the review. In these circumstances, the existence of a certificate does not give rise to any jurisdictional error by the Authority or entitlement to relief.

3. The application is dismissed.

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

Date: 4 April 2017