CLI19 v Minister for Immigration
[2020] FCCA 236
•6 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLI19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 236 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority correctly applied s.473DD of the Migration Act 1958 (Cth) – whether the Authority failed to take into account relevant considerations – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 473DD, 476 |
| Cases cited: Australian Retailers Association v Reserve Bank [2005] FCA 1707 |
| Applicant: | CLI19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1529 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 6 February 2020 |
| Date of Last Submission: | 6 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Mr A Downie MinterEllison |
ORDERS
The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.
DATE OF ORDER: 6 February 2020
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1529 of 2019
| CLI19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
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 pt.7AA of the Act on 28 May 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil Hindu from a particular village in the Northern Province of Sri Lanka. On 26 May 2013, the applicant arrived in Australia as an unauthorised maritime arrival. On 22 March 2017, the applicant applied for a Safe Haven Enterprise visa.
The applicant claimed that his brother “T” was involved in the militant group Liberation Tigers of Tamil Eelam (“LTTE”). The applicant claimed he was subjected to monthly reporting requirements at a Sri Lankan Army (“SLA”) camp. The applicant also claimed that an alleged informant, “S” forced him to travel to India to collect LTTE information. The applicant further alleged that S visited the applicant’s home and told the applicant that he had received orders to kill the applicant’s brother. The applicant claimed that in January 2013, the applicant was threatened again by S. The applicant also alleged that he was informed by his brother that the applicant was the subject of a kidnap plan.
In these circumstances, the applicant claimed that he fears returning to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally. The applicant alleged that he fears he would be identified, kidnapped and killed by the Sri Lankan authorities upon his return to Sri Lanka.
On 10 January 2019, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
On 15 January 2019, the Authority wrote a letter to the applicant explaining that the applicant’s application for a Safe Haven Enterprise visa had been referred to the Authority for review. The Authority’s letter attached a fact sheet and Practice Direction which provided the applicant an opportunity to put on new information and submissions.
On 25 January 2019, the applicant’s representative sent an email to the Authority attaching an uncertified court document titled, “Warrant of Arrest”, dated 13 May 2013 in support of the applicant’s application. The applicant’s submissions in the email to the Authority noted that the arrest warrant states that the applicant has an arrest warrant issued against him by a Magistrates Court in a particular region. The submissions also noted that the document is not available on the applicant’s file as it was not previously provided to the Department of Home Affairs.
On 4 February 2019, the applicant’s representative provided further submissions to the Authority. Those submissions also referred to the arrest warrant that was described as having previously been provided. A copy of the arrest warrant was once again enclosed with the further submissions dated 4 February 2019.
The Authority in its reasons identified the background to the application for review. The Authority had regard to the material provided by the Secretary under s.473CB of the Act. The Authority referred to the applicant’s submissions.
In relation to the arrest warrant, the Authority identified that the same was new information that was not before the Delegate. The Authority referred to the fact that in the applicant’s Safe Haven Enterprise visa interview, the transcript identified that the applicant said there was a court case because of his brother and that there was a summons for the applicant. In that regard, on page 8 of the transcript of the record of interview, there is a notation: “About two months prior to coming to Australia 8/4/2013 I was summonsed by the EPDP.”
In the applicant’s Safe Haven Enterprise visa application, the applicant completed dot point 3 of question 4, “Has any person named in Question 3 ever: been the subject of an arrest warrant or Interpol notice?” and the applicant ticked “No.” The Authority, in considering the new information, considered the possibility that the applicant was referring to an arrest warrant at this time and that there may have been a translation issue.
The Authority took into account the fact that the Safe Haven Enterprise visa application was made by the applicant on 22 March 2017 and that the Safe Haven Enterprise visa form required him to indicate if he has ever been charged with any offence awaiting legal action to which he selected “No.”
The Authority also took into account that, at the time of the applicant’s arrival interview, the applicant was asked if he had been charged with any offence and that the applicant responded he had not. The Authority noted that the arrival interview was soon after the arrest warrant was purportedly issued and that the applicant had stated, that since his arrival in Australia, he had been in contact with his family in Sri Lanka.
The Authority was not satisfied that the reference to “summons” and “arrest warrant” is a result of any translation issue.
The Authority was satisfied that the claim that applicant has an outstanding warrant against him and that he fears harm upon return to Sri Lanka for this reason was not made to the Delegate making its decision and is also new information.
The Authority noted that the submissions stated that the applicant obtained the arrest warrant with the help of his family lawyer prior to the submission being made.
The Authority referred to what occurred prior to the Safe Haven Enterprise visa interview. The Authority noted that the applicant was provided with a document that informed the applicant that it was important that all his claims for protection were presented during the interview and that the applicant may not be able to raise new claims if a refusal decision was made.
The Authority referred to what occurred at the commencement of that interview. The Authority noted that the applicant was invited to provide any new information or correct any information already provided and that the applicant made no mention of the arrest warrant.
The Authority noted that at the end of the Safe Haven Enterprise visa interview, the Applicant sought to obtain other document evidence. The Authority noted that the Delegate invited the applicant to provide any further documents within seven days of the interview and no further documents were provided.
In these circumstances, the Authority was satisfied that the applicant had been given an opportunity to present all his claims for protection. The Authority was also satisfied that the timing of the provision of this information to the Authority was of significant concern. The Authority identified having serious reservations as to the veracity of the document and the claim. In these circumstances, the Authority was not satisfied that there were exceptional circumstances to justify considering the new information.
The Authority noted that there had been five files provided to the Authority that were unrelated to the Applicant and that had been provided in error. The Authority did not have regard to the same.
The Authority summarised the Applicant’s claims.
The Authority accepted that the Applicant, as a Tamil civilian, was required to report to the SLA camp on a monthly, basis during 2009.
The Authority accepted that prior to departing Sri Lanka, the applicant’s sole primary residence was his family home in a particular village which was owned by his parents. The Authority noted that the applicant had confirmed at the interview that his parents and sister continued to reside there. The Authority also accepted that the applicant has three brothers and one younger sister. The Authority accepted that the applicant’s sister is living with the applicant’s parents and is a civil engineer and two of his older brothers live in Northern Province working as a government engineer and as a bank manager.
The Authority referred to the applicant’s second eldest brother T who now lives in France and has sought asylum there. The Authority noted that the applicant’s central claims for protection relate to his familial association with his brother T and the serious consequences the applicant claims he will face as a result of that association.
The Authority accepted that the applicant had a brother T who was involved in the LTTE in 2005 and 2006 and that T fled Sri Lanka in 2006. The Authority also accepted that Sri Lankan authorities sought to locate T and in the process questioned, threatened and mistreated the applicant and his family in 2006.
The Authority referred to the applicant’s assertion that one of T’s fellow LTTE members, S, became an informant for the SLA and knew the applicant’s family well because of S’s association with T. The Authority noted that the applicant was unable to provide basic information about S, including his surname. The Authority also noted that the applicant did not mention issues relating to an informant or a person named S, or a purported claymore mine attack in his arrival interview, nor did he suggest that his brother fled Sri Lanka on suspicion of involvement in this particular crime.
The Authority referred to the applicant’s claims regarding the fact that neither S nor any other Criminal Investigation Department (“CID”) officers questioned the applicant about a trip that he was purportedly forced to take to obtain intelligence from his brother. The Authority noted that this seriously called into question the legitimacy of the applicant’s claim.
The Authority referred to the applicant being broadly consistent in his arrival interview and Safe Haven Enterprise visa interview in relation to being questioned by the EPDP prior to departing Sri Lanka. The Authority noted however, that the applicant made no mention of being questioned by the EPDP in his written statement. The Authority also noted that the responses the applicant provided to the Delegate at the interview were not convincing.
The Authority referred to an example of the applicant being asked questions by the Delegate about what he meant by being summonsed and how the applicant was contacted. The Authority noted that the applicant’s alleged trip to India to see his brother had been three years prior to the applicant’s claimed interaction with persons in Colombo in 2013.
The Authority referred to the applicant’s claims concerning confiscation of his passport. The Authority found that the scenario advanced by the applicant to be particularly speculative and incongruent with the timeline in respect to the applicant’s own claims.
The Authority noted that the applicant legally obtained his passport from the Sri Lankan authorities in 2009/2010 and travelled to India, passing through a Sri Lankan immigration and security clearance without apparent issue. The Authority also noted that for the purposes of work, the applicant claimed that he regularly travelled between Colombo and a particular region from 2010 to 2013, which country information indicates meant he was passing through military checkpoints. The Authority further noted that the applicant did not claim to have faced any issues from the authorities during these trips.
The Authority was not satisfied that the authorities wanted information on T from the applicant and found that, had the authorities wanted information on T, they would have also attempted to seek this information from the applicant’s other brothers, regardless of whether they were living in the family home or not.
The authority noted that the applicant confirmed with the Delegate that his father had never been involved in the LTTE, including providing any low level support. The Authority noted that the applicant had not claimed that there had been any adverse consequences for his father or suspicion of LTTE involvement as a result of his father’s absence from home between 2006 and 2010. The Authority referred to the relevant country information and was not satisfied with the applicant’s evidence and his lack of information regarding his father’s displacement and circumstances. The Authority found that the applicant’s evidence in this regard was, overall, vague and unconvincing. The Authority was not satisfied that the applicant’s evidence was credible. The Authority found that the applicant’s explanation did not explain why his father was not targeted by the authorities between 2010 and 2013 in the manner in which the applicant claims he was targeted.
The Authority referred to the applicant’s response concerning questions in respect of his history of any political involvement. The Authority did not accept that the applicant engaged in low level political activity through putting up posters for the EPDP.
The Authority accepted that the applicant’s brother was in the LTTE in 2005 and 2006 and that he left Sri Lanka as the authorities suspected his involvement. The Authority accepted that, at around this time, the applicant’s family were questioned regarding the applicant’s brother’s involvement and absence and that the SLA mistreated the applicant and his family during questioning. The Authority also accepted that, in 2009, the applicant was part of a Tamil population subjected to reporting requirements with the SLA. The Authority was not, however, satisfied that this reporting was a result of any real or imputed suspicion but rather that it was a result of the security climate around the particular region at the time.
Given the credibility concerns in respect to the applicant’s evidence, the Authority found that the applicant’s evidence about his brother’s involvement in a claymore bomb attack and that there is some ongoing criminal case was unconvincing and had been fabricated to elevate the profile of the applicant’s brother and to create a profile for the purpose of the applicant’s Safe Haven Enterprise visa.
The Authority was not satisfied that the applicant’s claim concerning his father being displaced between 2006 and 2010 was credible. The Authority was not satisfied that the applicant was targeted, harassed and threatened by an informant S, even if such a person exists. The Authority was not convinced that the authorities maintained adverse interest in the applicant for seven years after T had departed Sri Lanka on account of his connection to him, particularly given the applicant’s other family members did not face the same issues. The Authority did not accept that the applicant has a profile that warranted any attention by the authorities after the war. The authority was not satisfied that the applicant was continually harassed and threatened by the EPDP, CID and SLA for seven years regarding his second brother’s LTTE involvement. The Authority was also not satisfied that the applicant was questioned by armed men in Colombo in 2013 regarding his brother or for any other reason. The Authority did not accept that the applicant had been named in a court case regarding his brother T and/or that he has been summonsed by the court or by anyone else.
The Authority was not satisfied that the applicant was forced to travel to India. The Authority found this particular aspect of the applicant’s claims to be fanciful. The Authority found the applicant’s ability to pass through airport security in Sri Lanka in 2010 and domestic military checkpoints indicates that the applicant was not a person of interest to the authorities. The Authority was not satisfied that the applicant’s passport and identity documents were confiscated by the authorities prior to departing Sri Lanka. The Authority found that the applicant’s evidence was inconsistent. The Authority did not accept the applicant’s reasons for confiscation. The Authority was not satisfied that the applicant was a person whose movements were of any interest to the authorities when he departed Sri Lanka.
The Authority accepted that the applicant departed Sri Lanka illegally.
Taking into account country information, the Authority expressly referred to a number of reports, including a United Nations High Commissioner for Refugees (“UNHCR”) report. The Authority identified the weight of information from those country information reports suggesting that those at potential risk include close relatives and former high profile LTTE members or those who have played a significant role in Tamil separatist activities and those who have a criminal history or an outstanding arrest warrant.
The Authority also referred to improvements that have been made for Tamils since the applicant departed Sri Lanka. The Authority was not satisfied that the applicant was ever perceived as an LTTE member, nor was the Authority satisfied that the applicant’s second brother held a significant role in the LTTE or that the Sri Lankan authorities’ interest or that of any associated groups in the applicant extended beyond questioning of family during the war.
The Authority also took into account the applicant’s family members who hold similar profiles to the applicant, and the fact that they continue to live in the Northern Province without identified issue. The Authority also took into account that the applicant’s siblings being engaged in professional occupations, one being a government employee. In these circumstances, the Authority was not satisfied that the applicant was a person who holds the profile of a person who will be at risk on account of any real or perceived LTTE association.
The Authority was not satisfied that the applicant would be placed at real risk of harm on account of any real or perceived LTTE association, his ethnicity and links to the former LTTE controlled area or his family’s profile or circumstances in the reasonably foreseeable future in Sri Lanka.
The Authority did not accept the applicant’s assertion that he is at real risk of being arrested upon arrival in Sri Lanka and that he would be imprisoned for a long period, resulting in serious harm to him.
The Authority referred to country information and the checking of the applicant’s identity. The Authority accepted that in the process of investigation, the authorities will become aware that the applicant departed Sri Lanka illegally and he may be charged for an offence.
The Authority was not satisfied that, in the process of the authorities’ investigation, the applicant faces a real chance of being suspected of LTTE involvement or being a terrorist or a person who would be considered a threat to the integrity of the Sri Lankan state.
The Authority was not satisfied that the imposition of a fine or short period of detention at the airport or the judicial process the applicant would be subject to upon return to Sri Lanka constitutes serious harm in the applicant’s circumstances. Taking into account country information, the Authority was not satisfied that the penalties and procedures that the applicant may face amount to persecution.
The Authority was not satisfied that the applicant, as a returning asylum seeker, faces a real chance that he would be unable to find accommodation or employment or that his capacity to subsist would be threatened.
The Authority found the applicant does not face a real chance of persecution for his illegal departure from Sri Lanka in 2012 or for having sought asylum in Australia.
The Authority found that the applicant does not have a well-founded fear of persecution.
The Authority found the applicant does not meet the requirements of the definition of “refugee” in s.5H(1) of the Act. The Authority found that the applicant failed to meet the criteria in s.36(2)(a) of the Act
The Authority considered the issue of complementary protection. The Authority accepted that the applicant, as a returning asylum seeker and an illegal departee, would very likely be investigated and held for several hours at the airport and possibly detained for some days, pending an appearance before a magistrate, and that he may be subject to the judicial process and penalties determined for illegal departure. The Authority was not satisfied that this treatment amounts to the death penalty or arbitrary deprivation of life or torture for the purposes of s.36(2A) of the Act. The Authority was not satisfied that the applicant would be placed at a real risk of significant harm in this regard.
The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there was a real risk that the applicant would suffer significant harm. The Authority found that the criteria in s.36(2)(aa) of the Act was not made out.
Accordingly, the Authority affirmed the decision under review.
Before the Court
These proceedings were commenced on 21 June 2019.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.
From the bar table, the applicant raised concern in relation to the Authority’s reasons referring to irrelevant files. Whilst, ideally, one might expect the Authority, when provided with irrelevant material which it returns or does not take into account, to inform the applicant’s representatives concerning the same, this does not, in the Court’s view, give rise to any relevant error that is capable of constituting a jurisdictional error.
In particular, there is no basis to find any material significance as a consequence of disregarded files to which the Authority did not have regard. In these circumstances, the disregarded files could not possibly have had an impact on the outcome of the review and could not be said to be material. The irrelevant files did not prevent the Authority from conducting the statutory review required under pt 7AA of the Act. For these reasons, no jurisdictional error arises in relation to the applicant’s reference to the material in paragraph 13 of the Authority’s reasons.
The applicant also referred to the arrest warrant and, in particular, to the Authority’s reasons in finding that it was not new information. On the face of the Authority’s reasons, the Authority took into account the whole of the provisions of s.473DD of the Act and had a real and meaningful engagement with the applicant’s submissions concerning, in particular, the arrest warrant. The Authority made an adverse finding in respect of the arrest warrant and new claim. –– The Authority was not satisfied that there were exceptional circumstances justifying considering the new information, which was open to the Authority.
The Court Book identifies that the Authority made a request for the audio record of the entry interview and that only the transcript was available. It is not apparent that the communication concerning the audio record not being available was conveyed to the applicant’s representatives. This is not a case where the audio recording was available before the Delegate.
In these circumstances, again it would have been preferable to ensure that the applicant’s representatives were informed that there was no such audio recording. This does not give rise, however, to any relevant error by the Authority in conducting the review required under pt.7AA of the Act. This is because the Authority is required, in that regard, to conduct the review on material provided by the Secretary subject to the provisions of pt.7AA of the Act.
In circumstances where there is no audio record in the possession of the Secretary, this issue did not give rise to any failure by the Authority to conduct the review required under pt.7AA of the Act. Nor is the missing recording something giving rise to any obligation upon the Authority, in the circumstances of the present case, to expressly consider exercise of the powers under s.473DC of the Act.
The applicant’s reference to the Authority’s discussion concerning whether there may have been an interpretation or a language translation issue at the time of the Safe Haven Enterprise visa interview does not give rise to any error by the Authority. It was open to the Authority to find that there was no language interpretation or translation issue. The dates of the documents were clearly different.
The applicant otherwise referred to the adverse findings by the Authority and sought to provide further explanation in support of his alleged fears regarding his second brother and the situation in Sri Lanka. These submissions invited the Court to engage in “merits review”. The Court has not power to do so. Nothing said by the applicant from the bar table identified any jurisdictional error.
The grounds
The grounds on the application are as follows:
1. The Immigration Assessment Authority (hereinafter referred as 'Authority') made a jurisdictional error erred by making a finding of its purported application of s 473DD of the Act which was legally unreasonable.
Particulars
a) The Authority referred at [paragraph 7] of its decision to an arrest warrant as new information provided by the applicant to the Authority and said.... "I have considered the possibility that the applicant was referring to an arrest warrant at this time and that the different terms (court summons/arrest warrant) may have been a result of a translation issue".
b) The Authority also said "I am satisfied that the claim that the applicant has an outstanding arrest warrant and that he fears harm upon return to Sri Lanka for this reason was not made prior to the delegate making her decision and is also new information" at [paragraph 8].
c) The Authority concluded at [paragraph 12] of its decision and said, "I am not satisfied that there are any exceptional circumstances to justify considering the new information."
d) In effect, the Authority's decision is affected by jurisdictional error in circumstances where the Authority at the [paragraphs 7,8 and 12] applied an unduly narrow interpretation of the term "exceptional circumstances" for the purposes of s 473DD(a) of the Migration Act 1958 (Cth) and constructively failed to exercise jurisdiction: BVZI 6 v Minister for Immigration and Border Protection [2017] FCA 958 at [46]-[47] and Minister for Immigration & Border Protection v BBSJ 6 [2017] FCAFC 176 at [112].
2. There was no evident and intelligible justification for the Authority to say "I am not satisfied the applicant will face a real chance of harm on account of any real or perceived LTTE association or his ethnicity and links to a former LTTE controlled area, or his family's profile or circumstances in the reasonable future in Sri Lank." at [paragraph 44].
Particulars
a) The Authority said "I accept that he had a brother T who was involved in the L TTE in 2005 and 2006 and who fled Sri Lanka in 2006. I also accept that the Sri Lankan authorities sought to locate T and in the process questioned, threatened and mistreated the applicant and his family in 2006" [paragraph 20].
b) The Authority also said "I accept that the applicant's brother was in the LTTE in 2005 and 2006 and that he left Sri Lanka as the authorities suspected his involvement. I accept that around this time the family were questioned regarding the brother's involvement and absence and that the SLA mistreated the applicant and his family during the questioning. I also accept that in 2009 the applicant as part of the Tamil population was subjected to monthly reporting requirements with the SLA. However, I am not satisfied that this was a result of any real or imputed suspicion and find it was a result of the security climate in Jaffna at the time." At [paragraph 3 3].
c) The Authority failed to give due consideration based on the applicant's familial association with the LTTE according to "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka", 21 December 2012.
3. The change of government and the new information of the country information the Immigration Assessment Authority's decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).
Particulars
a) The delegate's decision was dated 10 January 2019. The political situation was drastically changed on 26 October 2018 and the return of the Mahinda Rajapaksa which was not taken to consideration by the delegate. Rajapaksa's administration was accused of serious human rights violations during the final stages of the conflict between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). It is a matter of record that the Sri Lankan military indiscriminately attacked civilians, hospitals and schools, executed prisoners and interned thousands of Tamils with widespread use of torture and sexual violence. Thousands of Tamils and other minorities with links to the Tigers were also forcibly disappeared. For a beleaguered Tamil population in the north and east of the country, the concern will be that history could repeat itself with the threat of further discrimination and violence looming. With no real accountability processes for previous crimes committed, Rajapaksa's return could see Tamil activists and perceived dissidents targeted once again. Rajapaksa is the leader of the opposition and opposes any move to grant rights or to address the grievance of the Tamils.
b) The new Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emmerson Report) in support of the applicants' protection claims in Australia.
c) According to the 2018 Emerson report, Tamils also experience pervasive and insidious forms of stigmatisation." at [para 55] of the said report.
d) The Special Rapporteur was told about the surveillance of Tamil civil society, including women's groups and of fear of reporting alleged human rights violations and sexual violence to the authorities. [para 55] of the said report.
e) The Special Rapporteur said "When viewed side by side with the figures that show that Tamils have been, and still are, overwhelmingly and disproportionately affected by the operation of the Act (PTA), a figure emerges of widespread institutional stigmatisation of a single community. [para 56] of the said report.
f) The Special Rapporteur said in his conclusion "The Tamil community remains stigmatised and disfranchised, while the trust of other minority communities is being steadily eroded.
g) In 2017, the Supreme Court of Sri Lanka ordered the State to pay over Rs. 2 million each to the parents of two Tamil youths tortured and killed in police custody by Batticaloa police, following the filing of a Fundamental Rights case. In this case the petitioners cited the former OIC of Batticaloa Police and four others as respondents. The petitioners stated that their deceased sons' arrest, detention is wrongful and illegal and that they were subjected to torture and killed that their fundamental rights guaranteed by Article 11, 13(1), 13(4) and 17 of the Constitution was violated by the respondents. The applicant is also a young Tamil from Sri Lanka.
h) According the above new information as there is a material change in the applicants' circumstances which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the referred applicants' country of claimed of protection, such as a change in the political and/or security landscape.
4. The change of security and human rights and the prevailing violence due to the recent bomb attacks in Sri Lanka and the new information of the country information the Immigration Assessment Authority's decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).
Particulars:
a) The Sri Lankan Police and the Aimed Forces are totally engaged in the operation against the Islamic subversive elements in a continuing battle in the whole of the Sri Lankan Island and it is unrealistic to believe the Sri Lankan Police would give protection to the applicant at present or in the near future.
b) Unwillingness to seek protection will be justified for the purposes of Article 1A(2) where the state fails to meet the level of protection which citizens are entitled to expect according to international standards" (See MIMA v Respondents S152/2003 (2004) 222 CLR at 271 [29]).
c) The joint judgment in S152/2003 refers to the obligation of the state to take reasonable measures" to protect the lives and safety of its citizens, including an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system or a reasonably effective police force and a reasonably impartial system of justice, indicating that the appropriate level of protection is to be determined by ,,international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245.
d) According the above new information as there is a material change in the applicants' circumstances which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the referred applicants' country of claimed of protection, such as a change in the political and/or security landscape. Filing to consider the material change in the applicant's claims if he were to return to Sri Lanka which is a jurisdictional error.
The Court notes that the applicant did, from the bar table, seek to hand up the original version of the arrest warrant, as well as other documents that the applicant acknowledged went to his claims and were not before the Authority. In circumstances where the documents went to the applicant’s claims, or the merits of his claims, and were not before the Authority, the documents are not relevant to the issue of jurisdictional error before this Court, as this Court is not engaged with a reassessment of the merits. It is for this reason that the Court refused to accept the tender of the documents proffered by the applicant in that regard.
Ground 1
In relation to ground 1, the applicant alleged that there was an error made in the application of s.473DD of the Act. The applicant alleged that the Authority adopted an unduly narrow interpretation of the meaning of “exceptional circumstances” and failed to constructively exercise its jurisdiction. There is no basis to find that the Authority adopted any erroneous meaning of “exceptional circumstances”. The submissions and particulars in relation to ground 1, in substance, seek to take issue with the adverse finding by the Authority as to whether there were exceptional circumstances. The adverse finding was open to the Authority, for the reasons given by the Authority as summarised above. Those reasons relevantly, include the negative answer that the Authority referred to in respect of the Safe Haven Enterprise visa application form.
In these circumstances, the adverse finding cannot be said to lack an evident and intelligible justification. The Authority was correct to find that the arrest warrant and outstanding arrest warrant claim were “new information.” The Authority’s reasons reflect a thorough and detailed consideration of the circumstances surrounding the “new information”. There is no discernible error either in the Authority’s approach to the application of s.473DD of the Act or in its findings that were adverse to the applicant and were open in that regard. No jurisdictional error alleged in ground 1 is made out.
Ground 2
In relation to ground 2, the applicant sought to take issue with the adverse finding by the Authority in paragraph 44 of its reasons. Ground 2 refers to the applicant’s brother’s involvement with the LTTE that the Authority accepted and contends that the adverse finding was legally unreasonable. It is apparent that the Authority identified a combination of matters in relation to the adverse finding in respect of the applicant’s claimed fear of harm and perceived LTTE links, not least of which were those referring to his family members that remain in the same area in Sri Lanka and the profile of the applicant not being one of the kind identified in the country information to which the Authority referred was “likely to give rise to concern to the authorities”.
The Authority also identified the applicant’s second brother as having a low profile. The Authority’s reasons in relation to rejecting the applicant’s claimed fear of harm by reason of perceived or real LTTE links was open to the Authority, for the reasons given by the Authority, and cannot be said to lack an evident, intelligible justification. It was a matter for the Authority as to what country information it had regard to. It is apparent that the Authority considered the type of profile of a person who might be at risk, based on the country information. It is not necessary for the Authority to refer to every piece of country information before it. It is apparent that the Authority took into account, in considering whether the applicant would be a person at risk, the country information identified in the Authority’s reasons, as summarised above, as to the type of person who would have a profile of concern. No jurisdictional error arises by reason of ground 2
Ground 3
In relation to ground 3, the Applicant sought to refer to there being a change of government and new information whereby the decision has become legally unreasonable. The Applicant referred to the political situation as having changed and sought to put submissions in relation to the merits, albeit referring to some material that was before the Authority. The substance of the submissions in ground 3 are to invite merits review. The Authority provided logical, rational and reasonable reasons in support of the finding that the situation for Tamils had improved and that included, apart from the country information, the Applicant’s own personal family situation and his family members that remained in Sri Lanka who had the same profile as the applicant and had not had any such issues as alleged by the applicant, as well as the adverse credibility findings made by the Authority.
Further, the Authority is required by pt.7AA of the Act to conduct the review on the papers and the Authority is under no duty to request or accept new information identified by the applicant. There was no proper basis or new material issues upon which the Authority was required to expressly consider exercising the powers under s.473DC of the Act in respect of new information or change of government. No jurisdictional error as alleged in ground 3 is made out.
Ground 4
In relation to ground 4, the Applicant again sought to refer to the security situation, prevailing violence and recent bomb attack whereby the decision has become legally unreasonable. Material that was not before the Authority is not capable of giving rise to any jurisdictional error. The Applicant’s reference to particular events in the particulars are in substance an invitation to this Court to engage in merits review. This Court has no power to review the merits. No jurisdictional error is made out by ground 4.
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 6 February 2020 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 5 March 2020
1
3
2