CMA19 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

CMA19 v Minister for Home Affairs [2020] FCA 736

File number: VID 888 of 2019
Judge: MURPHY J
Date of judgment: 29 May 2020
Catchwords:

MIGRATION – application for judicial review of a decision to refuse to grant the applicant a protection visa pursuant to s 501(1) of the Migration Act 1958 (Cth) – where a delegate of the Minister had found that the applicant was a refugee and entitled to complementary protection – where the Minister found the applicant failed the character test because he reasonably suspected that the applicant had knowingly and voluntarily contributed to conduct constituting war crimes and/or crimes against humanity

MIGRATION – whether the Minister failed to afford the applicant procedural fairness – whether the Minister took into account an irrelevant consideration or acted for an improper purpose – whether the Minister’s decision was legally unreasonable, irrational or illogical– whether the Minister failed to give proper consideration to the applicant’s representations on harm – whether the Minister failed to engage in an active intellectual process with submissions advanced by the applicant

MIGRATION – where the applicant has been in immigration detention for over a decade – whether the Minister failed to grant or refuse a protection visa to the applicant under s 65 of the Migration Act as soon as reasonably practicable – whether the applicants continuing detention is unlawful – whether it is appropriate to order the applicant’s immediate release from detention
Legislation: Migration Act 1958 (Cth)
Cases cited:

Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562

ASP15 and Another v Commonwealth and Another [2016] FCAFC 145; (2016) 248 FCR 372

Attorney-General (Minister of Immigration) v Tamil X and Anor [2010] NZSC 107

Australian Competition and Consumer Commission v Chen [2003] FCA 897; (2003) 132 FCR 309

Australian Competition and Consumer Commission v Eurong Beach Resort Ltd and Ors [2005] FCA 1134

Australian Competition and Consumer Commission v Knight [2007] FCA 1011; (2007) ATPR 42-165

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513

AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2016) 248 FCR 456

BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131

BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576

Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1

DHW17 v Minister for Home Affairs [2019] FCA 985

Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 139 FCR 292

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Details
Case
[2020] FCA 736
Decision Date

CaseChat Overview and Summary

The case of CMA19 v Minister for Home Affairs involved the applicant, a national of Sri Lanka, seeking a judicial review of the Minister’s decision to refuse to grant him a protection visa. The applicant had been in immigration detention for over a decade and claimed to be a refugee due to his forced recruitment into the Liberation Tigers of Tamil Eelam (LTTE) and subsequent service in their intelligence wing. The Minister found that the applicant failed the character test as he suspected the applicant had knowingly and voluntarily contributed to conduct constituting war crimes and/or crimes against humanity.

The legal issues before the court included whether the Minister failed to afford procedural fairness to the applicant, whether the Minister took into account irrelevant considerations or acted for an improper purpose, whether the Minister’s decision was legally unreasonable, irrational or illogical, whether the Minister failed to give proper consideration to the applicant’s representations on harm, and whether the Minister failed to engage in an active intellectual process with the submissions advanced by the applicant. The court also had to consider whether the Minister’s failure to grant or refuse a protection visa within a reasonable time rendered the applicant’s continuing detention unlawful.

The court found that the Minister had failed to afford procedural fairness to the applicant by not properly considering the evidence and arguments presented by the applicant. The court held that the Minister had failed to engage in an active intellectual process with the submissions advanced by the applicant, and had taken into account irrelevant considerations by failing to consider the applicant’s age and the circumstances of his recruitment into the LTTE. The court also found that the Minister’s decision was legally unreasonable as it was based on a misunderstanding of the applicant’s evidence and a failure to properly consider the evidence of duress. The court held that the Minister’s failure to grant or refuse a protection visa within a reasonable time rendered the applicant’s continuing detention unlawful.

The court issued a writ of certiorari to quash the Minister’s decision to refuse to grant the applicant a protection visa, and a writ of mandamus to require the Minister to determine the applicant’s application for a protection visa as soon as reasonably practicable. The court also declared that the Minister had failed to make a decision to grant or refuse to grant the applicant a protection visa within a reasonable time. The Minister was ordered to pay the applicant’s costs of the application.

Orders

Orders of the court

1. Pursuant to rule 30.11 of the Federal Court Rules 2011 (Cth) this proceeding be consolidated with proceeding VID 351/2020, and the consolidated proceeding be known as CMA19 v Minister for Home Affairs and Anor and identified with proceeding number VID 888/2019.

2. A writ of certiorari issue to quash the decision of the First Respondent made on 24 July 2019 to refuse to grant the Applicant a protection visa.

3. A writ of mandamus issue to require the First Respondent (whether personally or by his delegate) to determine the Applicant’s application for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) as soon as reasonably practicable, and within a period to be fixed following further submissions.

4. The First Respondent pay the Applicant’s costs of the application.

THE COURT DECLARES THAT:

5. The First Respondent failed (whether personally or by his delegate) to make a decision to grant or refuse to grant the Applicant a Safe Haven Enterprise visa (protection visa) under s 65 of the Act as soon as reasonably practicable.

6. The First Respondent has failed (whether personally or by his delegate) to make a decision whether to exercise the discretion under s 501 of the Act to refuse to grant the Applicant a protection visa as soon as reasonably practicable.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 7 March 2017 the PVA delegate completed the Protection Visa Assessment (the PVA decision). The PVA delegate found that the applicant is a refugee as defined in s 5H(1) of the Act because he has a well-founded fear of persecution in Sri Lanka for a Refugees Convention reason, and was also satisfied that the applicant is owed complementary protection as provided for in s 36(2)(aa) of the Act. The PVA delegate was satisfied that there were not serious reasons for considering the applicant had committed a war crime or a crime against humanity because, as a result of duress, the applicant did not possess the necessary mental elements of intent and knowledge in respect of the relevant conduct. In making that finding, the PVA delegate undertook a thorough review of the evidence, took into account the contrary findings of the RSA, IMR and ITOA, and made detailed factual findings. The PVA delegate’s findings include the following:125.…I am satisfied the applicant was forcibly recruited, as he claims. His explanation regarding the information he supplied to the UNHCR in [Country A] is plausible, and his claim is entirely consistent with independent information about the practices of the LTTE. While I accept the applicant may have harboured anger about the death of his father, I reject that such a ‘decision’ of a 15 year old child, accompanied by threats of harm against him and his family, could realistically be characterised as voluntary.…129.There are strong reasons for considering the applicant joined the LTTE due to fear of imminent death or of continuing or imminent serious bodily harm against him or his family and in circumstances where he felt he had no choice but to comply with their demands. This amounts to a circumstance of duress.130.The applicant described at the SHEV interview on 9 December 2016 the fear he felt after being taken to a training camp in the jungle. He described attempting to escape from the LTTE a short time later and the punishment he received as a result: he was beaten, had his head shaved in front of other recruits and was placed in an underground bunker. He later witnessed other recruits similarly punished. This experience is also consistent with information reported by the [Office of the High Commissioner for Human Rights]…131.The conditions in which the applicant was forcibly recruited and held against his will during his initial training were sufficiently violent and threatening to constitute a subjective (if not objective) fear of a continuing threat of serious bodily harm.132.After completing his military service in an LTTE jungle battalion under the leadership of Karuna, the applicant, through no choice of his own, was transferred to the intelligence wing in late 2002 where the particular criminal conduct relevant to this assessment occurred. This was around the time of his 17th birthday. The applicant had by then spent two years under the exclusive control of the LTTE and had been denied any contact with his family and friends. I conclude that the applicant’s military service and his transfer to the intelligence wing occurred under a circumstance of duress.133.According to his evidence given over several interviews with the Department, the applicant served the LTTE for around a year each in both internal and external intelligence roles while he was 17 and 18 years old. He operated in an undercover intelligence capacity in a government-controlled area in which any slippage of his persona would have exposed him as an LTTE spy and resulted in his serious bodily harm or death at the hands of paramilitaries or government forces. Consistent with country information referenced above, in the event he had abandoned his role, he would almost certainly have been captured by these groups and subjected to serious bodily harm or death. Within the LTTE, any expression of wavering or reticence in relation to his duties would raise fears that he could compromise their mission or suspicion of treason.134.The applicant has stated that he was aware that ‘traitors’ or others of concern to the LTTE were dealt with harshly through imprisonment, disappearance or summary execution. The applicant’s account of his circumstances is consistent with numerous reports about military and political developments at the time. …135.The applicant claims that as he started to become aware of the consequences of his work, he sought to transfer to the political wing. This was agreed in late 2004, around the time of the applicant’s 19th birthday.136.It is my view that these circumstances constitute duress. The applicant had no option but to carry out his duties as directed: failure to do so would have likely resulted in the serious bodily harm or death of the applicant or of his mother or brother, who, like the applicant, had no option to relocate or to seek out protection from any other source. There is no available evidence that suggests the government of Sri Lanka offered sanctuary or protection to people such as the applicant and his family, fleeing harm from the LTTE and a range of paramilitary groups operating in [Area C]. On the contrary, there is extensive evidence that escaped LTTE operatives were either imprisoned as terrorists or killed in summary executions, generally after being tortured to extract information. The final stages of the conflict in 2009 offer a compelling record of the lack of internal flight options available to Tamils generally, and to LTTE operatives in particular.

Ratio Decidendi

Legal Principle Established

On 16 August 2010 the applicant’s migration agent submitted a further statutory declaration, incorrectly dated 5 January 2010 (the August 2010 Declaration). The applicant said that he had lied about his LTTE involvement in his January 2010 Declaration because he heard that Australia was refusing asylum to Tamils who had been LTTE members, and he could not return to Sri Lanka where his life was in danger. He said that the statement he provided to the UNHCR was “true and correct in every respect”. On 2 September 2010 the applicant was again interviewed by a delegate of the Minister, including so as to afford him an opportunity to provide information as to why he should not be excluded from protection under the provisions of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) by operation of Article IF. That Article, now reflected in s 5H(2)(a) of the Act, relevantly provides:The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:(a)he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;…. In the third interview the applicant reiterated what he had said to the UNHCR, including the following:(a)he was approached by the LTTE when he was only 15 years old. He was reluctant to join and they threatened that if he did not join they would kill him, harm his mother and force his younger brother to join;(b)when he attended the initial LTTE training camp he and some other boys tried to escape. They were caught and punished by having their head shaved and beaten in front of others in the camp;(c)when he was assigned to the Intelligence Unit he was required to meet daily with and take direction from Colonel M. His role was to identify civilians suspected of working with the SLA or passing through LTTE controlled areas. Once a person was identified they were detained and transported back to base in a van. Those people were then handed over to the Central Intelligence unit (CI) who undertook their own questioning. He was aware that CI would imprison people of concern to the LTTE and kill them if they were of major concern, but he was not aware of any cases of people he had detained and handed over subsequently being killed;(d)in 2004 he was deployed to Town C and he was given a more responsible role; to meet with people who were of adverse interest to the LTTE, such as those people who may have been involved in abducting young boys. He would warn them if they continued their activities they would be kidnapped or shot by the Intelligence Unit and if his warnings were ignored he would inform Colonel M. He came to realise that he was the cause of other people suffering, but he was being monitored and he feared he would be killed if he did not fulfil his duties; and(e)accordingly, in early 2005 at the age of 19, he sought transfer to the Politics Unit. In this role he worked closely with the LTTE ‘government’ and investigated allegations of corruption against LTTE government officials. After the representations by his mother he was released from the LTTE in May 2006.