CPJ17 v Minister for Immigration
[2017] FCCA 3176
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPJ17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3176 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – the applicant’s mental health issue and ongoing consequences of his mental health were the subject of dispositive findings by the Authority – the Authority’s reasons reflect a thorough and careful active intellectual engagement with the submissions – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473BC, 473DD, 473DE, 476 |
| Applicant: | CPJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1849 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 15 December 2017 |
| Date of Last Submission: | 15 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco on a direct access basis |
| Solicitors for the Respondents: | Mr J Pinder Minter Ellison Lawyers |
ORDERS
Grant leave to the applicant to rely upon the amended application initialled and dated by the Court and dispense with the need for the filing of an electronic copy of the same.
Grant leave to the applicant to rely upon the written submissions dated 14 December 2017 and treat the particulars to the ground identified in the application as being substituted by the sub paragraphs within paragraph 21 of the submissions dated 14 December 2017.
The amended application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1849 of 2017
| CPJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 Part 7AA made on 1 June 2017 affirming a decision of 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 arrived in Australia on 28 August 2012 as an unauthorised maritime arrival. The applicant was found to be a Tamil Hindu from the Trincomalee district in the Eastern Province of Sri Lanka. The applicant applied for the Safe Haven Enterprise visa on 28 August 2012. On 27 October 2016, a delegate found the applicant failed to meet the criteria for the grant of a visa.
The applicant claimed to fear harm because of his political opinion, his support for the Tamil National Alliance (“TNA”), his imputed support for the Liberation Tigers of Tamil Eelam (“LTTE”), being harassed and assaulted by paramilitary groups, the disappearance of two cousins, being a Tamil, and being a returned asylum seeker who had fled Sri Lanka illegally.
The Authority’s decision
Information before the Authority
The Authority identified in its reasons having regard to the information referred under s 473CB of the Act. The Authority referred to being provided with two New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) reports which on their face appear to be a psychological health assessment of the applicant. The Authority accepted that there were exceptional circumstances justifying considering that information.
The Authority otherwise identified other submissions to which the Authority had regard, and identified certain extracts and unrelated Authority decisions that the Authority was not satisfied met the criteria under s 473DD of the Act to consider the new information. The Authority also identified taking into account new country information consistent with s 473DE(3)(a) of the Act.
On the face of the Authority’s reasons, the Authority did not adopt an erroneously narrow meaning of exceptional circumstances and took into account the whole of the provisions of s 473DD of the Act.
Consideration of the applicant’s claims
The Authority identified the applicant’s claims and incidents that the applicant alleged had occurred. The Authority referred to the applicant’s claims concerning the disappearance of his cousins, and also referred to the applicant travelling to India. The Authority was satisfied that the harassment did not continue beyond 2008 and that the applicant has not suffered any further harm in relation to his cousin P’s disappearance. The Authority found the applicant does not have an adverse profile with the paramilitary organisations as a result of his cousin P’s disappearance and that he does not face a real face of serious harm for this reason should he return to Sri Lanka.
The Authority referred to an incident in April 2012 and considered it plausible that the applicant would not report a sexual assault to the police and found it surprising that he did not report the abduction and beatings. Nonetheless, the Authority accepted after the beatings and sexual assault, the applicant was afraid and left Trincomalee. The Authority was prepared to accept that he was too scared to return to his home, and remained in Jaffna apart from discreet visits to his family.
The Authority did not accept that any persons were searching for the applicant or that they would continue to do so. The Authority did not accept the applicant’s claims that persons visited his home, threatened his wife, monitored his home and have continued to do so. The Authority was satisfied the applicant is of no ongoing interest to the authorities, military, paramilitary or any other organisation arising from the incident at the coconut plantation.
The Authority referred to the applicant’s cousin’s disappearance, and did not accept the applicant’s claim that the Sri Lankan Navy (“SLN”) is behind cousin A’s disappearance or that it is in any way linked to the applicant or his family. The Authority did not accept that this indicates the applicant or his family continue to have any adverse profile with the SLN or any other military, paramilitary or police organisation. The Authority did not accept the applicant is at risk of harm from any persons as a result of cousin A’s disappearance.
The Authority referred to the applicant’s potential imputed association with the LTTE. The Authority was satisfied on the evidence that the evidence and his family do not have any real or imputed LTTE profile whatsoever. The Authority found the applicant has not and will not now be imputed with any profile as a supporter or member of, or any association with the LTTE. The Authority found the applicant does not face a real chance of harm for this reason.
The Authority found the applicant has not and will not now face any real chances of serious harm on the basis of his political opinion or support for the TNA.
The Authority was satisfied the applicant does not face a real chance of serious harm on the basis of being a Tamil fisherman should he return to Sri Lanka and resume fishing.
The Authority was satisfied the applicant has not suffered serious harm as a result of his religion in the past and that there was no evidence before the Authority to suggest that the applicant faces a real chance of serious harm for this reason should he return to Sri Lanka. The Authority was not satisfied that the applicant faces a real chance of serious harm on the basis of being a young Tamil male from the East or by reason of being a Hindu.
The Authority referred to the consequences of the applicant’s illegal departure and the application of the Immigrants and Emigrants Act. The Authority did not accept that the requirement to pay a fine would cause the applicant economic hardship or otherwise threaten his capacity to subsist. The Authority found the fine that may be imposed and any requirement for bail, surety or guarantee, would not constitute serious harm.
The Authority expressly referred to taking into account the evidence from the psychologist’s report provided by the applicant and expressly noted that the applicant has ongoing psychological issues. The Authority made reference to the applicant being fined, detained and questioned under Immigrants and Emigrants Act and was satisfied this would not constitute serious harm and would be the exercise of laws of general application that apply to all Sri Lankans equally.
The Authority overall was not satisfied the applicant will face a real chance of serious harm on the basis of his political opinion and his support for the TNA, any imputed support for the LTTE, being harassed and assaulted by paramilitary groups, the disappearance of his two cousins, his mental health, being a Tamil fisherman, being a Tamil, a young male, a Hindu and a Tamil from the East and being returned as a asylum seeker who fled Sri Lanka illegally. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and did not meet the criteria under s 36(2)(a) of the Act.
Assessment of Complementary Protection criteria
The Authority then turned to the issue of complementary protection and identified the requirements in relation to a real risk of significant harm. The Authority expressly referred to having found that the applicant does not face a real chance of serious harm on the basis of his political opinion and support for the TNA, being harassed and assaulted by paramilitary groups, the disappearance of his two cousins and the complaints lodged, his mental health and being a young Tamil male from the East, and a Hindu.
The Authority did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found the applicant failed to meet the criterion under s 36(2)(aa) of the Act, and affirmed the decision under review.
Before this Court
The grounds in the amended application are as follows:
Ground 1
The Authority has failed to deal with the full integers of the Applicant’s claims, namely to deal with a claim to fear harm arising from being a victim of a number of sexual assaults.
Particulars
1. That there is no square finding that deals with a claim to face harm arising from the withdrawal of mental health services currently being provided by STARTTS;
2. The only findings turn to whether, as a victim of sexual assaults, he would be a victim again in the future – as opposed to facing harm as a victim of a sexual assault;
3. Further and with respect of the psychological matter, these findings were only dealt with and applied to the issue of harm that may occur while he is held in detention – and not in regards to his need for ongoing supporting counselling.
Consideration
Mr Bodisco of counsel on behalf of the applicant, took the Court to the psychologist’s report which identified the applicant having symptoms and presentation that are consistent with an individual who has experienced prolonged exposure to threat as indicated by disturbances in arousal levels, re-experiencing symptoms and high levels of fear. The report noted that the applicant recently also reported sudden surges of intense worry, difficulty concentrating and reduced interest in pursing activities as a result of his fear being returned.
The report identified that the applicant continues to engage with supportive counselling, psycho-education and cognitive behavioural therapy strategies. The report observed that the applicant will benefit from further counselling sessions to support his psychological and emotional health and wellbeing. The report noted that ongoing counselling sessions would be provided by STARTTS. The report earlier identified the effect of the completion of the questionnaire completed by the applicant and that he is symptomatic for Post-Traumatic Stress Disorder (“PTSD”). The report made reference to the applicant disclosing that he was a victim of a sexual assault incident that occurred while he was being detained by the Sri Lankan military.
The report in its accompanying “Summary of Treatment” identified the applicant was the beneficiary of a type of intervention described as “Brief counselling Treatment” and that the period of treatment was from October 2014 to present. The date of sessions was described as “fortnightly sessions”.
Mr Bodisco of counsel submitted that while the Authority had made findings referable to the incident the applicant alleged, including the sexual assault identified in the psychologist’s report, it was submitted that the Authority had not dealt with an essential integer of the applicant’s claim, being the potential fear of harm arising from the withdrawal of mental health services.
I accept the first respondent’s oral submission that there was no claim to fear harm by reason of the withdrawal of mental health services. Further, no such claim fairly arises on the material before the Authority. It is apparent that the applicant’s mental health issue and the ongoing consequences of his mental health were taken into account and the subject of dispositive findings by the Authority, by reason of the reference to mental health.
Mr Bodisco of counsel submitted that there was not the provision of adequate reasoning in support of that finding. The Authority’s reasons reflect a thorough, logical and careful active intellectual engagement with the submissions and in particular the psychologist’s report. There is no deficiency in the reasons provided by the Authority in support of the adverse findings. The adverse findings were open for the reasons given by the Tribunal referred to above and cannot be said to lack an evident and intelligible justification. There is no integer of the applicant’s claims that the Authority failed to deal with.
Accordingly, no jurisdictional error as alleged in the amended application is made out. The amended application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 30 January 2018
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