CLI18 v Minister for Home Affairs

[2019] FCCA 217

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLI18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 217

Catchwords:
MIGRATION – Application for safe haven enterprise visa – adverse credibility findings – country information adverse to claims for protection – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Migration Act 1958 (Cth), ss.46A, 7AA, 473CB, 36(2)(a), 36(2)(aa), 473DD(b)(i), 473DD(b)(ii), 473DD(a)

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

First applicant: CLI18

Second Applicant: CLJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 471 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

Counsel for the First 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 first applicant pay the 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 471 of 2018

CLI18

First Applicant

CLJ18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The first applicant is a citizen of Sri Lanka. The second applicant is a minor and is the first applicant’s son. On 21 November 2012, she arrived in Australia as an unlawful maritime arrival. She arrived with her minor son, her mother, her sister and a niece, who are also the subject of other judicial review proceedings. On 22 March 2016, the department notified the first applicant that the Minister had lifted the Section 46A of the Migration Act 1958 (Cth) (“the Act”) bar, and the first applicant was invited to apply for a temporary protection (subclass 785) safe haven enterprise visa (referred to as a SHEV).

2. On 26 October 2016, the first applicant applied for the SHEV.  The first applicant attended an interview with the delegate on 5 May 2017, during which interview the first applicant made further claims.  On 4 July 2017, the first applicant’s representative provided the delegate with post-interview submissions (CB132-139).  On 10 August 2017, the delegate refused to grant to the first applicant the visa for which she had applied. 

3. On 15 August 2017, the matter was referred to the Immigration Assessment Authority (“the Authority”) for review, pursuant to part 7AA of the Act. On 27 August 2017, the first applicant’s representative provided further written submissions to the Authority. On 30 April 2018, the Authority affirmed the delegate’s decision to refuse to grant the first applicant the SHEV. On 14 May 2018, the first applicant filed an application seeking judicial review of the decision of the Authority, handed down on 30 April 2018.

4. The first applicant’s claims for protection were as set out in [10] of the reasons of the authority (CB211 and 212) and are as follows:

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

   ·In early 2005, when First applicant was five months pregnant, her husband got drunk, took drugs, and encouraged his friends to rape her. While this was happening he laughed and shouted at her to stop screaming. He also threatened to kill her if she told anybody;

   ·At eight and a half months pregnant, First applicant’s husband threatened to kill their unborn child. At this time she left her husband and moved in with his parents, telling them that she had fear in relation to the impending birth;

   ·In late 2005, three months following the birth, First applicant told her mother-in-law about what her son had done and that she was afraid of him. Her mother-in-law did not believe her and told her to go back to her husband;

   ·Soon after, First applicant returned to her husband and again she was beaten and raped. He did nothing to help with their son. When Second  applicant was nearly one year old (mid-2006) she packed her belongings and fled with Second applicant to her mother’s house;

   ·First applicant’s husband visited her mother’s house and demanded that she return to him. Wherever First applicant moved her husband always found her. He beat her and tried to take Second  applicant. He also threatened to kill her if she told anyone;

   ·With the support of her parents, First applicant reported her husband to the police. She was told that the police did not get involved in family affairs. First applicant knew that any complaint she lodged in that area would be dismissed because her husband was a member of the Sri Lankan Freedom Party (SLFP);

   ·In August 2012, four men from the SLFP visited First applicant’s house and her mother’s house looking for her brothers who were involved with the JVP (Janatha Vimukthi Peramuna) political party. When First applicant said she didn’t know where her brothers were the men threated they would kill her and her son. They told her they would come back again and that she had better have some information next time;

   ·About one month later, the men from the SLFP returned demanding to know the whereabouts of her brothers. First applicant begged the men to leave her and her son. The men said they would return in fifteen days;

   ·First applicant feared she would be at great risk if the SLFP men did not find her brothers soon, so she left Sri Lanka;

   ·First 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;

   ·First applicant’s brothers 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, First applicant fears she will be killed by her ex-husband because she left Sri Lanka with his son. She also fears that she and her family will be harmed or killed by the SLFP because of her familial link to her brothers;

5. In [11] of its reasons, the authority set out how, on 5 May 2017, the delegate had interviewed the female first applicant and that she had provided the following additional information:

   ·She and her ex-husband had not been legally divorced;

   ·Three of the first applicant’s four brothers were involved with the JVP;

   ·The first applicant’s brothers were last involved with the JVP in 2005;

   ·The first applicant’s brothers were beaten by SLFP supporters in 2005, but that they had not had any further interaction with the SLFP since that time.

   ·The first applicant’s brothers faced legal proceedings in Sri Lanka, due to their illegal departure from Sri Lanka. 

   ·Three months before the first applicant left Sri Lanka, the first applicant’s ex-husband came to her house twice a week and threatened to kill her and her son. 

   ·The first applicant would be killed if returned to Sri Lanka, because she had converted to Christianity.

6. It was also alleged by the first applicant, following the SHEV interview, that the first applicant faced harm in Sri Lanka due to her membership of a particular social group, namely “Women and Girls, Victims of Domestic Violence in Sri Lanka”, and that the first applicant faced the risk of having her son taken away from her if she was forcefully returned with her son to Sri Lanka.

7. It was recorded by the Authority that it had 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). It was further noted by the Authority that it had received two submissions from the first applicant’s representative, which in part comprised argument on issues before the delegate, and which referred to claims and evidence that were before the delegate ([5] of authority reasons).

8. The Authority noted that the submission also referred to country information about children, women and gender issues that was not before the delegate, and which was new information ([6] of the authority reasons).  The authority considered that the majority of that country information predated the delegate’s decision.  It otherwise noted that other information was unreferenced and provided by way of hyperlinks, some of which had been broken. 

9. The Authority noted that the representative had not provided any explanation as to why the material could not have been provided to the delegate, or whether it was credible personal information.  The authority was not satisfied that the information could not have been provided to the delegate, or that the information was credible personal information, noting that it was general country information.

10. The Authority had before it more recent country information about children, women and gender issues in Sri Lanka.  After considering the issue, the authority was not satisfied that there were exceptional circumstances justifying consideration of such information ([6] and [7] of authority reasons). 

11. The authority did obtain new information relevant to the issue of the alleged data breach claimed by the first applicant.  The Authority determined that it was necessary to obtain such information, as there was insufficient information before it regarding the data breach, so as to enable it to assess the claim.  The authority considered that there were exceptional circumstances warranting consideration of such information ([8] of authority reasons). 

12. The authority accepted that the first applicant had been a victim of threats, rape and violence at the hands of her ex-husband and his friends, between 2005 and 2006.  It also accepted that the first applicant and her ex-husband had not divorced.  The authority considered that the first applicant had provided a compelling account of her experiences in the SHEV interview, and that the first applicant was recalling a genuine personal experience. 

13. However, the Authority found that the first applicant’s evidence regarding her claims that her ex-husband came to her house twice per week, three months before she left Sri Lanka, to be unconvincing.  The authority identified the first applicant’s evidence that she had left her husband in 2006 and that she had had no contact with him between 2006 and 2012, when she had arrived in Australia.  The Authority did not accept that the first applicant did not know the reason for the alleged visits of the first applicant’s former husband, in circumstances where it was asserted by her that her ex-husband was visiting her twice per week.  The Authority considered her oral testimony to be vague and unconvincing, noting that the first applicant did not mention the claims in her SHEV statement or in her earlier entry interview ([21] of Authority reasons).  The Authority did not accept that the first applicant’s ex-husband approached or threatened her in 2012 as claimed, finding that the first applicant had fabricated those claims in order to enhance her claims for protection ([22] of first applicant’s reasons).  The Authority also had difficulty accepting the first applicant’s claim in the post-SHEV interview submission that the first applicant’s ex-husband was a prominent member of the SLFP ([23] of Authority reasons).  The Authority was prepared to accept that the ex-husband had been involved in the SLFP in a low-level capacity during elections, but was not satisfied that the first applicant faced a real chance of serious harm from her husband or because of her husband’s prior involvement ([24] of Authority reasons). 

14. The Authority considered whether the first applicant faced a real chance of sexual or gender-based violence from persons other than her ex-husband if returned to Sri Lanka.  Referencing country information ([26-28] inclusive of Authority’s reasons), the Authority was satisfied that the first applicant would have significant family support and would not face a real chance of sexual or gender-based violence if returned to the south of Sri Lanka where she had previously lived. 

15. The Authority accepted that the first applicant had become a Roman Catholic in Australia ([31] of Authority reasons).  The Authority also noted that whilst the first applicant had claimed to fear harm for that reason, she made no mention in her written SHEV application about fearing harm on return to Sri Lanka because of that ([32] of Authority reasons).  In reliance upon country information and noting the first applicant’s response during the SHEV interview that she could seek protection from the Sri Lankan police if she was harassed due to her religion, the Authority did not accept that the first applicant faced a real chance of serious harm for converting to Christianity ([33-34] of Authority Reasons). 

16. The Authority accepted the first applicant’s evidence that three of her brothers had been involved with the JVP in a low-level capacity prior to 2006 ([35] of Authority reasons), but it found the first applicant’s evidence that she and her mother were harassed by members of the SLFP in 2012, and at other times relating to her brothers’ prior political activities, to be unconvincing ([36-41] inclusive of Authority reasons).  The Authority considered the first applicant’s oral evidence at the SHEV interview in relation to that aspect of her claims to be evasive and vague ([40] of Authority reasons).  The Authority concluded that the first applicant was not recalling a genuine personal experience and did not face a real chance of serious harm on account of her brothers’ prior involvement with the JVP ([41]). 

17. As to the data breach, the Authority accepted the possibility that Sri Lankan authorities had access to information published on the department’s website, but was satisfied that no asylum claims had been published, such that neither the Sri Lankan authorities nor the SLFP would know the first applicant’s reasons for seeking protection.  The Authority was not satisfied that the first applicant faced a real chance of serious harm on account of her details being made available on the department’s website for a short period in February 2014 ([42] of Authority reasons). 

18. As to the Court case involving the first applicant’s brother-in-law who was allegedly involved in people smuggling, the Authority noted that the first applicant had not claimed that her brother-in-law had been harmed in connection with people smuggling charges and subsequent court proceedings, nor that there was any evidence to suggest that he had been so harmed ([44] of Authority reasons).  The Authority found that the first applicant did not travel on the same boat as her brother-in-law and that she had already arrived in Australia prior to the brother-in-law’s arrest and charge ([45] of Authority reasons).  Whilst the Authority was willing to accept that the first applicant’s sister and children had gone to Nepal because of the brother-in-law’s arrest, the Authority was not satisfied that there was any credible evidence before it that indicated that the first applicant faced a real chance of serious harm on that basis ([47] of Authority reasons).  The Authority noted the first applicant’s claim in her written SHEV application that it was likely her brothers had been kidnapped and killed, but it also noted that she had subsequently confirmed at the SHEV interview that her brothers were alive.  The Authority was not satisfied that the first applicant or her son would face harm from the Sri Lankan authorities on account of the illegal departure from Sri Lanka of her brothers or for any other reasons pertaining to the activities of her brothers ([48] of Authority reasons).

19. In reliance upon country information, the Authority accepted that because the first applicant and her son had departed Sri Lanka without a passport, they may be found to have committed an offence under relevant Sri Lankan legislation.  The Authority considered that the first applicant might be charged, fined and released ([54-55] of Authority reasons).  The Authority considered that even if the first applicant elected to plead not guilty, she would either be granted bail on personal surety or have a family member act as a guarantor.  The Authority found that the first applicant and her son were in the category of ordinary illegal departees from Sri Lanka and would not, thereby, face a chance of imprisonment;  notwithstanding that it was highly likely that the first applicant would be fined ([55] of Authority reasons).  Having regard to country information, the Authority found that children were never subject to bail or fines.

20. The Authority was otherwise satisfied that the provisions of relevant Sri Lankan legislation dealing with unlawful departure from Sri Lanka were laws of general application that applied to all Sri Lankans equally. The Authority was not satisfied that the process and penalties that the first applicant and her son might face because of their illegal departure would constitute persecution for the purposes of the Act ([56] of Authority reasons). For those reasons, the Authority found that the first applicant did not meet the protection criteria as set out in section 36(2) (a) of the Act ([61] of Authority reasons).

21. As to complementary protection criteria, the Authority relied on its factual findings to conclude that the first applicant did not face a real risk of significant harm if returned to Sri Lanka ([64] of Authority reasons). The Authority considered that the first applicant might be held for short duration in prison whilst waiting to appear before a Magistrate, or whilst on remand awaiting bail. The Authority accepted that the first applicant could be subjected to poor prison conditions during detention, but country information confirmed that that was 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 pain and suffering, or to subject the first applicant or her son to any extreme humiliation if they were to be returned to Sri Lanka and placed in those circumstances. The Authority found that the poor prison conditions did not, of themselves, constitute significant harm ([66] and [67] of Authority reasons). Accordingly, the Authority found that the first applicant did not meet the complementary protection criteria at out in Section 36(2)(aa) of the Act.

22. As to complementary protection criteria, the Authority relied on its factual findings to conclude that the first applicant did not face a real risk of significant harm if returned to Sri Lanka ([64] of Authority reasons). The Authority found that the poor prison conditions did not, of themselves, constitute significant harm ([66] and [67] of Authority reasons). Accordingly, the authority found that the first applicant did not meet the complementary protection criteria, as set out in section 36(2)(aa) of the Migration Act.

23. The ground for review set out in the application for review is as follows:

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

24. Such ground is so lacking in particularity it warrants the dismissal of the application for review on that basis alone.  The first respondent, however, does not so apply for dismissal on that basis.  The Authority has set out in detail cogent reasons for arriving at its decision.  It has satisfied the relevant statutory tests required to be satisfied by it.  It has relied, where appropriate, upon country information, and has made findings in relation to all of the first applicants’ claims and evidence.  There is nothing to suggest that the Authority overlooked or misunderstood any of the first applicant’s claims, that it failed to consider any material evidence, that it asked itself a wrong question or otherwise applied a wrong test in undertaking its statutory duties. 

1. The authority conducted the review by reference to the material referred to it, pursuant to the Section 473CB of the Act. The Authority did not conduct an interview with the first applicant, and neither was it required to do so. It allowed the first applicant to comment, where appropriate.

2. The authority assessed new information presented to it and found that country information was new information which predated the delegate’s decision, such that section 473DD(b)(i) of the Act was not satisfied ([7] of authority reasons). The authority was not satisfied that the country information was credible personal information, as countenanced by Section 473DD(b)(ii) of the Act.

3. The Authority had more recent country information before it than that provided by the first applicant. And that fact informed its decision that there were no exceptional circumstances under Section 473DD(a) to justify considering the new information. The Authority did not confine its consideration of whether there were exceptional circumstances to the first applicant’s explanation for not having provided the new information at an earlier time.

4. The authority did conclude that there were exceptional circumstances under section 473DD(a) justifying it to consider new information about the data breach point, finding that it required the information to properly assess the first applicant’s claim in relation to the data breach, as such information before it was not sufficient for it to arrive at a decision.

5. As to the assertion that there was an error on the part of the delegate, this court has no jurisdiction to review the decision of the delegate, as it is a primary decision ([8] of authority reasons).

6. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the Authority.[1]

   [1] See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130].

7. 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.

8. The application for review is without merit. The application is dismissed.

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

Associate: 

Date:  5 February 2019