CLK18 v Minister for Home Affairs

[2019] FCCA 220

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLK18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 220

Catchwords:
MIGRATION – Application for safe haven enterprise visa – finding that no protection criteria had been satisfied – adverse findings – country information adverse to claims of applicant – application for review dismissed.

Legislation:

Federal Circuit Court Rules 2001, rr.16.05(2)(a), 13.03C(1)(c)
Migration Act 1958 (Cth), ss.7AA, 473CB, 36(2)(a), 36(2)(aa), 473DD(b)(i), 473DD(a), 476(2)(a)

Cases cited:

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: CLK18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 472 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 First 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 Respondents costs of and incidental to the application for review fixed in the amount of $5000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 472 of 2018

CLK18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The hearing of the application for review filed on 14 May 2018 was listed for hearing today at 9.30 am. The order listing the matter for hearing was made by Registrar Buckingham on 20 June 2018. That order appears on the Court portal. The matter has been called three times by the Associate and there was no appearance on behalf of the applicant consequent upon such call. In the circumstances, Ms Helsdon, the lawyer who appears on behalf of the first respondent, has made application for the dismissal of the application for review pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”). In all of the circumstances, there being no appearance today on behalf of the applicant and there being no correspondence or other indication as to why there is no such appearance, I grant the application and order that the application for review filed on 14 May 2018 be dismissed. Pursuant to an application made by Ms Helsdon for costs, I also order that the applicant pay the first respondent’s costs of and incidental to the application fixed in the amount of $5000.

2. So, by reason of the appearance of the applicant, I make another order pursuant to rule 16.05(2)(a) of the Rules vacating the orders which were made by the Court this morning whereby the application for review filed on 14 May 2018 was dismissed and whereby costs were ordered against the applicant in the amount of $5,000.

3. The applicant is a citizen of Sri Lanka.  She arrived in Australia as an unlawful maritime arrival on 21 November 2012.  She arrived with her daughter, a minor grandson and a granddaughter.  Those people are the subject of 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 then invited to apply for a temporary protection (subclass 785) safe haven enterprise visa (a SHEV). 

4. On 27 October 2016, the applicant applied for the SHEV.  Her claims for protection were as set out in [12] of the reasons of the Immigration Assessment Authority (“the Authority”) handed down on 30 April 2018.  Those claims are as follows:

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

   ·In approximately 2009, the applicant converted from Buddhism to Christianity. In response, the authorities ordered that she be ‘shown up to be like a cow that has no brains’;

   ·The applicant was humiliated and treated with no dignity. She was ignored by her husband and by people at the market. People also threw things at her and tried to whip her. Paddy grass and pots of water were put outside her house;

   ·The applicant’s sons were actively involved with the JVP (Janatha Vimukthi Peramuna) political party and her family were JVP supporters. A friend of her son was killed due to his association with JVP;

   ·The applicant supported the JVP by accompanying her sons when posters needed to be displayed;

   ·The applicant believes that, because of her religious conversion, the authorities were suspicious of her political activities;

   ·The authorities’ suspicion of the applicant was exacerbated by the fact that her daughter Rohini was married to a member of the Sri Lankan Freedom Party (SLFP), who was also a very influential person with the authorities;

   ·The applicant’s son-in-law was also involved in drugs and corruption, and was very violent towards her daughter and grandson. The police dismissed her daughter’s complaint about her husband;

   ·Shortly before she left Sri Lanka, four SLFP members came to both the applicant’s house and her daughter’s house looking for her sons. The men shot the applicant’s dog and verbally abused her. They told her that they were going to shoot her sons and her family, and that when they return that her sons must be at home. The applicant believes that her son-in-law, a member of the SLFP, may have been behind this incident;

   ·The SLFP members also went to Colombo where the applicant’s daughter-in-law was living and took her to the police station to question her about where her husband was;

   ·About one month later, the same men came to the applicant demanding to know the whereabouts of her sons. They also went to her daughter’s house and threatened to return in fifteen days;

   ·The applicant’s husband told her that he did not want to be involved with her or support her, and that she should leave;

   ·After the applicant left Sri Lanka with her family members, her daughter Sujeewa was threatened by persons from the SLFP. Her daughter then fled Sri Lanka with her husband and children but they were sent back to Sri Lanka after arriving at Cocos Island. On return to Sri Lanka they were arrested, and after they were released they fled to Nepal;

   ·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 sons 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 face the same fate as her sons and be killed.

5. On 4 July 2017, the applicant provided to the delegate some post-interview submissions via her representative. On 10 August 2017, the delegate refused to grant to the applicant the visa she had applied for. On 15 August 2017, the matter was referred to the Authority for review under Section 7AA of the Migration Act 1958 (Cth) (“the Act”). On 28 August 2017, the 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 to the applicant the SHEV. On 14 May 2018, the applicant filed an application for judicial review of the decision of the Authority handed down on 30 April 2018.

6. 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). It was noted by the Authority that it had received a submission from the applicant’s representative which in part comprised argument on issues before the delegate, and which otherwise referred to claims and evidence that were before the delegate ([5] of Authority reasons).

7. The Authority considered that the submission raised two claims that were not before the delegate, namely, that the applicant’s son had been jailed for two and a half years after he was returned from Australia and that he had been tortured and required to report to the Criminal Investigation Division, his being unable to work because of harassment and discrimination; and, secondly, that the applicant’s son’s wife had to seek protection in Nepal so as to avoid ongoing persecution by the Criminal Investigation Division ([6] of Authority reasons).

8. The Authority considered that those claims were new information not before the delegate, relating to events that predated the delegate’s decision ([8] of Authority reasons).  The Authority noted that the submission did not explain why that information could not have been provided earlier, as well as that the new information contradicted information previously provided ([9] of Authority reasons).

9. The Authority was not satisfied that that information could not have been provided prior to the delegate’s decision.  Nor was the Authority satisfied that the information was credible.  In all of the circumstances, the Authority was not satisfied that there were exceptional circumstances to warrant further consideration of that information ([10] of Authority reasons). 

10. The Authority obtained new information relevant to the issue of what was referred to as the “data breach”, considering that it was necessary to obtain such information as there was insufficient information before it on that issue.  The Authority was satisfied that there were exceptional circumstances justifying consideration of such information ([11] of Authority reasons).

11. The Authority considered all of the claims made by the applicant.  It noted that the applicant claimed to have converted from Buddhism to Christianity, though it was represented by the applicant’s representative that the applicant was not claiming that she would suffer harm on the basis of any religious persecution argument.  The Authority found that there was not a real chance that the applicant would face serious harm on account of her change of religion ([19] of Authority reasons). 

12. The Authority accepted the applicant’s evidence that two of her sons had been involved with the JVP in a low level capacity prior to 2006 ([20] of Authority reasons), but the Authority found that the applicant’s evidence that she too was actively involved in JVP, and that she and her family had been harassed by members of the SLFP in 2012, or at any other time in relation to her sons’ political activities, was unconvincing.  The Authority considered the applicant’s oral evidence at the SHEV interview in relation to this aspect of her claim to be brief and lacking in any real substantive detail beyond written claims that she had suffered a genuinely lived experience ([28] of Authority reasons). 

13. The Authority considered that the applicant was not, in fact, recalling a genuine personal experience in relation to events that she claimed had led to her decision to leave Sri Lanka.  Though accepting that two of the applicant’s sons had been involved in the JVP in a low-level capacity up until 2005, the Authority was not satisfied that the applicant herself had been politically active, or that she was perceived to have been involved with the JVP.  Nor was the Authority satisfied that the applicant had come to the adverse attention of the SLFP or any other group prior to her departure from Sri Lanka ([29] of Authority reasons). 

14. Whilst the Authority was prepared to accept that the applicant’s daughter had been a victim of domestic violence, the Authority found that there was no credible information before it that indicated that the applicant would be subjected to violence or threats from her daughter’s ex-husband ([31] of Authority reasons).  The Authority was satisfied that on return to Sri Lanka the applicant would live with one of many family members who remained in the south of the country ([34] of Authority reasons). 

15. Accordingly, the Authority was not satisfied that the applicant faced a real chance of sexual or gender-based violence on her return to Sri Lanka ([35] of Authority reasons).  As to the question of the data breach raised by the applicant, the Authority accepted the possibility that the Sri Lankan authorities might have accessed the information erroneously published on the department’s website, but it was satisfied that no asylum claims had been published such that neither the Sri Lankan authorities nor the SLFP could have known of 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 being made available on the department’s website for a short period in February 2014 ([36] of Authority reasons). 

16. In relation to the Court case involving the applicant’s son-in-law, who was allegedly involved in people smuggling, the authority noted that the applicant had not claimed, nor was there any evidence before it to suggest, that her son-in-law had been harmed in connection with or because of the charges or Court proceedings which the son-in-law had faced because of his alleged people smuggling activities ([38] of Authority reasons). 

17. The Authority found that the applicant did not travel on the same boat as her son-in-law, and the authority finding that she was already living in Australia when he was arrested and charged.  Whilst the authority was willing to accept that the applicant’s daughter and grandchildren had gone to Nepal because of the charges against the son-in-law, 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 ([41] of authority reasons).

18. As to the applicant’s claim that the applicant would self-harm if returned to Sri Lanka, and that she required medication, the Authority considered that the applicant had not provided any details about the medical condition that she claimed to be suffering from, or any details about any medication or medical treatment which might have relevantly been received by her in Australia.  Having regard to country information, the authority was not satisfied that the applicant was not able to access the same or similar medication or appropriate medical treatment should she be returned to Sri Lanka.

19. Though the Authority accepted that the applicant had departed Sri Lanka without a passport, based on country information, the Authority found that although the applicant may be found to have committed an offence under the relevant Sri Lankan legislation such that she might thereafter be charged and fined, it found that she would be released without harm.  The Authority considered that if the applicant elected to plead not guilty, she would either be granted bail on personal surety or have a family member as a guarantor, and that though there was a chance of imprisonment, it was highly likely that the applicant would only be fined even if found guilty ([51] of authority reasons). 

20. The Authority was otherwise satisfied that any penalties handed out under any relevant Sri Lankan legislation were determined by laws of general application that applied to all Sri Lankans equally. The Authority was not satisfied that the process and penalties that the applicant could face because of her illegal departure would constitute persecution against her under the provisions of the Act. Accordingly, the authority found that the applicant did not meet the protection criteria as set out in section 36(2)(a) of the Act.

21. As to the complementary protection criteria, the Authority relied upon its previous factual findings to conclude that the applicant did not face a real risk of significant harm should she be returned to Sri Lanka ([57] of Authority reasons).  The Authority considered that the applicant might be held for a short period of time in prison whilst waiting to appear before a magistrate, or whilst on remand awaiting bail, but though the Authority accepted that the applicant in such circumstances may be subjected to poor prison conditions during such detention, and in reliance upon country information, the Authority considered that any such poor prison conditions were due to overcrowding, poor sanitation and lack of resources. 

22. The Authority found that there was no intention on the part of the authorities in Sri Lanka to inflict pain or suffering or extreme humiliation upon any person in the position of the applicant should she be returned to Sri Lanka. The Authority otherwise found that any such poor prison conditions did not of themselves constitute significant harm ([59] of authority reasons). The Authority found in such circumstances that the applicant did not meet the criteria for complementary protection as set out in section 36(2)(aa) of the Act ([62] of authority reasons).

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

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

    Such application is without any particularity and is objectionable on that basis alone, and warrants dismissal thereby. Nevertheless, the first respondent has not pressed for dismissal on that basis. The authority provided detailed and cogent reasons for arriving at its decision. It followed the relevant tests as described under the Act. It made findings in relation to all of the claims made by the applicant. There is nothing to suggest, nor was it submitted, that the authority overlooked or misunderstood any of the applicant’s claims, failed to consider any material evidence, asked itself a wrong question, or otherwise applied a wrong test in undertaking its statutory task. The authority conducted its review by reference to the material which had been before it pursuant to section 473CB of the Act. The authority was not required to interview the applicant.

24. The authority considered new information which was found to be in relation to events that predated the delegate’s decision such that section 473DD(b)(i) of the Act was not satisfied. The authority considered the significance of the new information but found that there were no exceptional circumstances to justify considering it. The authority did not confine its consideration of whether there were exceptional circumstances to the applicant’s explanation for not having provided the new information earlier.[1] At [11] of its reasons, the authority concluded that there were exceptional circumstances, pursuant to Section 473DD(a) of the Act, to justify considering the new information about the data breach. The authority found that it required information to properly assess the applicant’s claim in relation to the data breach, but insofar as the applicant has alleged error on the part of the delegate, the Court had no jurisdiction to review that decision as it was a primary decision: Section 476(2)(a). The authority arrived at its decision after having duly performed its functions in a proper manner.

    [1] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [47].

25. It cannot be said that no other rational or logical decision-maker could not have made the same decision. The court relies upon the decision in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ Where it was said:

    [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.

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

   [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.

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

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  4 February 2019