CLH16 v Minister for Immigration

[2017] FCCA 1007

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLH16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1007

Catchwords:
MIGRATION – Immigration Assessment Authority – no jurisdictional error can be made out in respect of a matter that was not raised before the Authority – the Authority considered the whole of the integers of the claims advanced by the applicant – the Authority made adverse findings that were open to the Authority – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant: CLH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2360 of 2016

Judgment of: Judge Street

Hearing date: 16 May 2017

Date of Last Submission: 16 May 2017

Delivered at: Sydney

Delivered on: 16 May 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Grant leave to the first respondent to file in Court the affidavit dated 11 May 2017 and dispense with the need for the filing of the same.

2. The amended application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2360 of 2016

CLH16

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 Act1958 ( Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 5 August 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant claimed to fear harm from the authorities, opposition parties and Sinhalese people because of his Tamil ethnicity, his Muslim faith, as a failed asylum seeker, because he protested against the government and because he stood as a candidate in the parliamentary election in 2004 for the Sri Lankan Muslim Congress Party.  

3. On 11 August 2012 the applicant departed Sri Lanka unlawfully and arrived on the Cocos Islands on a suspected illegal entry vessel on 1 September 2012. The applicant lodged an application for a safe haven visa on 18 November 2015. On 16 June 2016 the delegate refused the application finding that the applicant failed to meet the criteria under the Act. 

The Authority’s decision

1. By letter dated 17 June 2016, the Authority wrote to the applicant identifying that the application had been referred to the Authority for review. The Authority identified that there were only limited circumstances in which new information could be considered and provided a fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The Authority identified the applicant’s background in its reasons dated 5 August 2016 and identified the material referred to the Authority under s.473CB of the Act. The Authority summarised the applicant’s claims for protection which in part involved the applicant being a Tamil Sunni Muslim from the northern province. There was no reference in any of the material to the applicant being a Sri Lankan Moor.

Consideration of refugee convention criteria

1. The Authority identified the relevant law. The Authority accepted that there had been an incident involving the Australian media but that the applicant had not been personally identified, and was not satisfied that the applicant faced a real chance of harm on account of that matter nor that the matter elevated the applicant’s risk in relation to any other matter.

2. The Authority referred to the incidents involving the applicant’s election activities and mosque protests and dealt with each of the incidents identified by the applicant in relation to a threatened unknown caller, in relation to a doctor who was shot and killed, in relation to a person called Nordeen who was subsequently killed, in relation to an incident involving an assault in respect of the disbursing of Buddhist monks, in relation to the applicant’s fear of the Sinhalese people, and in relation to the applicant’s mother’s disappearance.

3. The Authority was not satisfied that the applicant was of any interest to a particular army captain, and was not satisfied that his mother’s disappearance was linked to the applicant’s circumstances and was not satisfied that the applicant would be targeted by anyone upon return. The Authority found the applicant does not face a real chance of being harmed by the army captain upon return.

4. The Authority was not satisfied that in the reasonably foreseeable future the applicant would face a real chance of religious discrimination amounting to economic or any other form of serious harm in Sri Lanka. The Authority was satisfied that the applicant did not face a real chance of harm on account of him and his family being perceived as wealthy.

5. The Authority was not satisfied the applicant faced a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, or his Tamil race and origins from the North, even with his sister formerly involved with the LTTE.

6. The Authority found that the information does not indicate that the applicant would face persecution in the reasonably foreseeable future on account of his being a Tamil of male gender, or that this would elevate his profile to be of interest to any authorities. The Authority found the applicant was not of adverse interest to the authorities when he left and was satisfied that the applicant has not subsequently become of interest. The Authority was not satisfied that the applicant’s profile is such that the applicant has a well-founded fear of persecution on the basis of any LTTE support or links. The Authority was satisfied the applicant has never been perceived to be an LTTE member or to have an LTTE supporter profile.

7. The Authority made reference to the applicant’s unlawful departure and being charged under the Immigrants and Emigrants Act and found that while being questioned and processed at the airport, and even if held over the weekend, the applicant will face a brief period of detention but that the conditions will not be such as to rise to the level of a threat to his life or liberty, or to significant physical harassment or ill-treatment, or otherwise amount to serious harm.

8. The Authority found that the applicant will be issued a fine and released, or if he pleads guilty will be released on his own personal surety. The Authority found that the process leading to charge, conviction and punishment for breaching the relevant sections of the Immigrants and Emigrants would be the result of a law of general application applied to a legal departee and does not amount to persecution for the purpose of s.5H(1) or s.5J(1) of the Act. The Authority was not satisfied that the applicant would be considered to have a risk profile requiring monitoring on return.

9. The Authority made reference to taking into account the applicant’s circumstances in their totality. The Authority, having considered the risk of harm to the applicant as a Tamil male from the northern province, who has stood for parliamentary election, engaged in religious protest against the government’s action, that his sister had some adverse interaction in relation to the LTTE involvement prior to 1998, and that he would be returning as a failed asylum seeker from Australia charged under the Immigrants and Emigrants Act, was not satisfied that these circumstances, individually or cumulatively, would give rise to a well-founded fear of persecution.

10. The Authority found that the applicant did not meet the requirements of refugee under s.5H(1) and the applicant failed to meet the criteria under s.36(2) of the Act.

Consideration of complementary protection criteria

1. The Authority then turned to the issue of complementary protection. The Authority was not satisfied that the applicant will be tortured or that the authorities through any act of omission, intentionally inflict pain or suffering such as to meet the definition of cruel or inhumane treatment or punishment, nor that they would intentionally cause extreme humiliation. The Authority was not satisfied the applicant would be subject to acts or omissions which would constitute significant harm as defined in s.36(2A) and s.5 of the Act. The Authority was not satisfied the applicant faces a a real risk of questioning or monitoring activities which would amount to significant harm on the basis of an imputed LTTE support or links, or for any other reason.

2. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The applicant’s originating application in this Court was filed on 1 September 2016. 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. An amended application and an affidavit were filed by the applicant.

2. The grounds in the amended application are as follows:-

   1) The Authority erred in failing to consider all integers of the claim

   Particulars

   a) At [18] the Authority accepted that the Applicant protested on 26 April 2012 at the Dam bulla Mosque and he was assaulted;

   b) At [25] the authority found as follows: “I find that his role in the local mosque indicates that he participated in the running of the mosque and was active in the local Muslim community"

   c) The authority failed to consider whether a Muslim with his profile as a prominent and wealthy Muslim involved in the running of a mosque who's sister was a member of the LTTE;

   d) The authority failed to consider whether a Muslim Applicant who is a victim of previous torture by the Sri Lankan Government would be treated as a possible Islamic Terrorist in Sri Lanka;

   e) The Authority failed to consider whether the applicant would be at risk of harm from the authorities and the Sinhalese Buddhist Majority

   2) The Authority erred in considering the ethnicity of the Applicant as a Tamil whereas the ethnicity  of the Applicant is a Sri Lankan Moor and is a follower of the Islamic faith;

   3) The Authority erred in foiling to consider the ethnicity of the Applicant as a Sri Lankan Moor (Muslim)

   4) The IAA failed to comply with section 473DE of the MIGRATION ACT 1958 (Cth)

   Particulars

   a) The IAA had exhaustively relied on the DFAT Country Information Report Sri Lanka, 18 December 2015, CISEC96CF14143

   b) This report was not put to the applicant as required under section 473DE of the Act.

3. On 7 November 2016 the applicant’s lawyer withdrew from the proceedings. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by a 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 to the applicant. The Court explained in summary this meant the Court was considering whether the Authority’s decision was unlawful or whether the Authority’s decision was unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the applicant would be dismissed.

4. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed he understood the nature of the hearing as explained by the Court.

Adjournment application raised from the bar table

1. From the bar table the applicant indicated that he had just acquired a job and he wanted an adjournment in order to obtain a lawyer. The applicant maintained that he needed a lawyer to assist him to present his case. No earlier notice of an adjournment application had been given by the applicant to the first respondent. The adjournment was not consented to by the first respondent.

2. The applicant initially contended that he had only just received the submissions of the first respondent. An affidavit was provided to the Court that identified the submissions had been sent to the applicant on 9 May 2017. The applicant then acknowledged that in fact, he had received the submissions on 9 May 2017. 

3. The Court asked the applicant why he had not been able to obtain a lawyer since the time of the draw of his lawyer in November 2016. No satisfactory explanation was proffered by the applicant in that regard.  The applicant maintained that he had material that he wanted an opportunity to obtain to put before the Court. The Court raised with the applicant that he had such an opportunity, pursuant to the orders made by the Registrar.

4. The Court is not satisfied that there would be in any utility in granting an adjournment and is of the view that an adjournment will only unnecessarily increase the costs of the parties and utilise limited Court time further. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. It was for these reasons an adjournment was refused. 

Applicant’s submissions from the bar table

1. From the bar table the applicant maintained that he was of Muslim ethnicity and not Tamil ethnicity. That is a proposition that the applicant had not advanced before the delegate or before the Authority.  No jurisdictional error can be made out by the Authority in respect of a matter that was not raised before the Authority.

2. The applicant maintained that he would be killed if he went back to Sri Lanka and maintained that the decision was in error because it had found he should go back. The applicant maintained that his life would be in danger and asked who would be held liable if that occurred.  Nothing said by the applicant from the bar table identified any jurisdictional error by the Authority. 

Consideration

Ground 1

1. In relation to ground 1 of the amended application, it is apparent that the Authority considered the whole of the integers of the claims advanced by the applicant and made adverse findings that were open to the Authority. Those findings cannot be said to lack an evident and intelligible justification. I accept the first respondent’s submission that it is of relevance in the present case that the applicant was represented throughout the process and incurred a decision. Further, the particulars to ground 1, in substance repeat the applicant’s claims and do not identify any failure by the Authority to consider the applicant’s claims. Accordingly, ground 1 fails to make out any jurisdictional error.

Grounds 2 and 3

1. In relation to grounds 2 and 3, no issue of the applicant being a Sri Lankan Moor was raised before the Authority. Accordingly, no jurisdictional error can be made out by such an allegation nor did any such claim arise on the material before the Authority. No jurisdictional error is made out by grounds 2 and 3. 

Ground 4

1. In relation to ground 4, there was no new information that the Authority decided to take into account to enliven any obligations under s.473DE of the Act. Further, to the extent relevant, the reference to the DFAT country information would have fallen within s.473DE(3)(a) of the Act so as to exclude any application of the said provision. No jurisdictional error is made out by ground 4 of the amended application.

Conclusion

1. Accordingly, the amended application fails to make out any jurisdictional error.  The amended application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 June 2017