CLH18 v Minister for Home Affairs

[2019] FCCA 235

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLH18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 235

Catchwords:
MIGRATION – Application for safe haven enterprise visa – adverse credibility findings – consideration of new information – application dismissed.

Legislation:

Migration Act 1958, ss.7AA, 473DD, 473DE(3)(a), 36(2)(a), 36(2)(aa), 473CC

Cases cited:

Minister for Immigration and Citizenship v Li [2013] 249 CLR 332

Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611

Applicant: CLH18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 470 of 2018

Judgment of: Judge Egan

Hearing date: 17 January 2019

Date of Last Submission: 17 January 2019

Delivered at: Brisbane

Delivered on: 17 January 2019

REPRESENTATION

Applicant: Self-Represented

Solicitors for the Respondent: Sparke Helmore

ORDERS

IT IS ORDERED THAT:

1. The application for review filed on 14 May 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 470 of 2018

CLH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. On 21 November 2012, the applicant arrived in Australia at Christmas Island as an unlawful maritime arrival.  She is a citizen of Sri Lanka.  She arrived with her aunt, a cousin who is a minor, and her grandmother.  Each of those other people are involved in other judicial review proceedings.  On 22 March 2016, the department notified the applicant that the Minister had lifted the section 46A bar, and the applicant was invited to apply for a temporary protection (subclass 785) visa (namely, a SHEV). 

2. On 26 October 2016, the applicant applied for the SHEV. On 10 August 2017, the delegate refused to grant the applicant the SHEV. On 15 August 2017, the matter was referred to the Immigration Assessment Authority (“the Authority”) for review pursuant to Section 7AA of the Migration Act1958 (Cth) (“the Act”). On 27 August 2017, written submissions were provided to the Authority on behalf of the applicant. On 30 April 2018, the Authority affirmed the delegate’s decision to refuse to grant the applicant the safe haven enterprise visa.

3. On 14 May 2018, the applicant sought judicial review of the decision of the Authority made on 30 April 2018 to refuse to grant to the applicant the SHEV.  The applicant’s claims for protection were set out in paragraph 7 of the reasons of the Authority as follows:

   7.

   ·The applicant is a Sinhalese female from the district of Hambantota in the south of Sri Lanka;

   ·In 2003, the applicant went to live with her grandmother;

   ·Most of the applicant’s family were actively involved with the JVP (Janatha Vimukthi Peramuna) political party;

   ·Prior to leaving Sri Lanka, men from the Sri Lankan Freedom Party (SLFP) came to the applicant’s grandmother’s house in search of her uncles who were not there;

   ·One month later, the same men returned demanding to know the whereabouts of the uncles;

   ·Around this time, the same men went to the applicant’s aunt’s house;

   ·The applicant’s grandmother feared that the men might return to rape the applicant;

   ·The applicant’s personal details were made public by the Department in February 2014 (‘data breach’). She fears that the SLFP have accessed that information from the Sri Lankan authorities;

   ·The applicant’s uncles were arrested when they returned to Sri Lanka and released after three days. It is likely they have been kidnapped and killed;

   ·If returned to Sri Lanka, the applicant fears she will be killed;

   ·If returned to her birth village, the applicant fears the SLFP will use her to find her uncles, grandmother and aunt.

4. It was further set out in [8] of the reasons of the Authority (CB 156) that in the SHEV interview, the applicant asserted as follows: 

   a) All four of the applicant’s uncles were involved with the JVP (Janartha Vimukthi Peramuna (political party)), and it was for that reason that she alleged that she was being “pursued”. 

   b) The applicant was inappropriately touched on the hand by one of the men looking for her uncles. 

   c) After the applicant left Sri Lanka, some men continued to pursue her uncles at her mother’s house which is situated about one to one and a half hours away from her grandmother’s house. 

5. After the SHEV interview, the applicant’s representative provided to the delegate a written submission dated 4 July 2017 which asserted as follows: 

   ·The applicant faced harm in Sri Lanka due to her membership of a particular social group (women and girls, victims of domestic violence in Sri Lanka). 

   ·The applicant faced persecution in Sri Lanka due to her association with her aunt who was a victim of threats and domestic violence.

   ·Sri Lankan government could not provide protection to the applicant.

6. It will be noted that the Authority had regard to the material provided to it by the secretary of the department pursuant to section 473CB of the Act ([4] of Authority reasons). The Authority recorded that it had received a submission from the applicant’s representative made on behalf of the applicant ([5] of Authority reasons). The Authority, it was noted, was also noted as having determined that it was necessary to obtain further information in relation to the “data breach” as set out in the applicant’s claims for protection referred to above.

7. It was also noted that the Authority was satisfied that there were exceptional circumstances to warrant consideration of the information in accordance with Section 473DD of the Act. It was recorded that the Authority noted that such information was not specifically about the applicant for the purposes of section 473DE(3)(a) of the Act ([6] of Authority reasons). The question as to the applicant having changed her religion to that of a Roman Catholic was considered by the Authority, although not specifically raised as a claim for protection. Having regard to country information, the Authority was not satisfied that the applicant would face harm if returned to Sri Lanka on that basis. ([14] of Authority reasons).

8. As to the applicant’s claims that she and her family were harassed by members of the SLFP (Sri Lankan Freedom Party), the Authority found that such claims were unconvincing for a number of reasons, including that the applicant demonstrated limited knowledge about the political activities of her uncles.  ([16] of Authority reasons). 

9. In her SHEV statement, the applicant claimed that members of the SLFP had harassed her and her grandmother concerning the whereabouts of her uncles, but in the SHEV interview, the applicant advised the delegate that the men who had allegedly harassed her did not identify themselves as being from the SLFP.  The applicant stated that the men had come to look for her uncles in 2005, but that had not been mentioned in the SHEV statement.  In the entry interview, the applicant claimed not to have had any involvement with the people who had come looking for her uncles, and had not mentioned the SLFP ([17] of Authority reasons). 

10. In the SHEV interview, the applicant claimed that whilst she was living on Christmas Island, people went to her mother’s house in pursuit of her uncles, but that was not mentioned in her SHEV statement ([18] of Authority reasons). 

11. In the SHEV interview, the applicant claimed that when men went to her house looking for her uncles, one of the men had held her hand, which was said to be inappropriate.  That claim had not been mentioned in the SHEV statement, or the entry interview ([19] of Authority reasons).

12. A good period of time had passed between the time of her uncles’ alleged involvement in politics, and the time when men had allegedly gone to her grandmother’s house, that assertion having been made in circumstances where the applicant said it was difficult to know why the men had come looking for her uncles ([20] of Authority reasons).

13. The applicant’s oral evidence in the SHEV interview was brief and lacking in any real substantive detail beyond the written claims that would indicate that the applicant was recounting what she asserted was a lived experience ([21] of Authority reasons).

14. When undertaking a cumulative consideration of the matters before it, the Authority found that the applicant was not recalling a genuine personal experience in relation to the events that she claimed had led to her decision to leave Sri Lanka ([22] of Authority reasons).  The Authority accepted the applicant’s consistent evidence that her uncles had been involved with the JVP in a low-level capacity, but the Authority was not satisfied that the applicant had come to the attention of the SLFP or any other group in connection with the profile of her uncles or for any other reason.  The Authority rejected the applicant’s claim that the same men had harassed her mother in 2012 or 2013 ([23] of Authority reasons). 

15. The Authority considered the applicant’s claim made in the post-interview submissions that the applicant feared persecution in Sri Lanka due to her association with her aunt, who she asserted was a victim of threats and domestic violence, and she also stated that she faced harm due to her membership of the particular social group named “Women and Girls, Victims of Domestic Violence in Sri Lanka” ([24] of Authority reasons). 

16. By reference to country information ([25] of Authority reasons), the Authority found that there was no credible evidence before it that indicated that the applicant would be subjected to harm from her aunt’s ex-husband.  Whilst accepting that women in Sri Lanka could be vulnerable ([26-28] of Authority reasons), the Authority was satisfied that the applicant would live with her parents and siblings upon return, and it was not satisfied that the applicant faced a real chance of sexual or gender-based violence upon return, or at any reasonably foreseeable time in the future ([29] of Authority reasons). 

17. As to the alleged data breach, the Authority accepted the possibility that the Sri Lankan authorities had accessed the information published on the department’s website, but was satisfied that no asylum claims were published, such that neither the Sri Lankan authorities nor the SLFP would know the applicant’s reasons for seeking protection.  The Authority was not satisfied that the applicant faced a real chance of serious harm on account of her details having been made available on the department’s website for a short period in February 2014 ([30] of Authority reasons).

18. As to the involvement of the applicant’s uncle who was involved in a court case allegedly in respect of a people-smuggling venture, the Authority noted that the applicant had not claimed that her uncle had been harmed in relation to the charges or the court proceedings which were faced by him ([32] of Authority reasons).  The Authority found that the applicant did not travel on the same boat as her uncle, and that she was already living in Australia when he had been arrested and charged ([33] of Authority reasons).  The Authority found that there was no credible evidence before it that indicated that the applicant faced a real chance of serious harm on that basis ([35] of Authority reasons). 

19. The Authority accepted that because the applicant had departed Sri Lanka without a passport, she may be found to have committed an offence under relevant Sri Lankan legislation, but the Authority considered that even if the applicant elected to plead not guilty, the applicant would be granted bail on either a personal surety or having a family member as a guarantor.  The Authority found that the applicant was nothing other than an ordinary illegal departee from Sri Lanka and would not face a chance of imprisonment but could be fined ([42] and [43] of Authority reasons).

20. The Authority was otherwise satisfied that the provisions and penalties of the relevant Sri Lankan legislation were laws of general application that applied to all Sri Lankans equally, and that the applicant, if penalised, would not be singled out for persecution by reason of her illegal departure ([44] of Authority reasons). The Authority found that the applicant therefore did not meet the protection criteria as set out in section 36(2)(a) of the Act ([46] of Authority reasons).

21. As to complementary protection criteria, the Authority relied on its previous findings in coming to the conclusion that the applicant did not face a real risk of significant harm due to her uncles’ involvement with the JVP;  from domestic or gender-based violence;  because of her change of religion;  because of her association with family members in any respect;  because of the legal proceedings against her uncle or uncles;  because of the data breach;  or because she would return to Sri Lanka as a failed asylum seeker ([49] of Authority reasons). 

22. The Authority considered that the applicant might be held for a short period in prison whilst waiting to appear before a magistrate upon her return to Sri Lanka or whilst on remand awaiting bail [51 of Authority reasons]. But though the Authority so found, finding also that the applicant may be subjected to poor prison conditions during such short period of detention, the Authority relied on country information which confirmed that such poor conditions were due to overcrowding, poor sanitation, and lack of resources. The Authority found that there was no intention on the part of the authorities in Sri Lanka to inflict any pain or suffering, or to humiliate the applicant in such circumstances, and that such poor prison conditions did not, in themselves, constitute significant harm [52 of Authority reasons]. The Authority found that the applicant did not meet the complementary protection criteria, as set out in section 36(2)(aa) of the Act.

23. The ground of review relied upon by the applicant is as follows:

    (1)The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.

24. Such ground is vague and lacking in particularity as to any alleged jurisdictional error, which is a reason for dismissal of the application on that basis alone.  However, the Authority was seen to have properly conducted its examination of all of the facts presented before it.  Its reasons were cogent and clear, and the applicant was given a full opportunity to present her case.  The Authority relevantly made findings after having considered all of the applicant’s claims and evidence.  It has not been suggested that the Authority overlooked or misunderstood any of the applicant’s claims, failed to consider any material evidence, asked itself a wrong question, or applied a wrong test in undertaking its statutory task. 

25. The Authority conducted the review based upon the evidence before it and discharged its review function pursuant to the provisions of section 473CC of the Act.

26. The Authority obtained new information and appropriately addressed the question as to whether exceptional circumstances existed warranting it to consider such new information. 

27. It cannot be said that no other rational or logical decision-maker could not have made the same decision in respect of the way in which the Authority addressed the issues before it. -  Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [130] per Crennan and Bell JJ as follows:

    [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

28. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

29. The application for review is without merit and is dismissed. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  5 February 2019