CPU18 v Minister for Home Affairs

[2019] FCCA 208

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPU18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 208

Catchwords:
MIGRATION – Application for safe haven enterprise visa – adverse credibility findings by authority – finding that applicant was not entitled to protection – content of country information adverse to claims of applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 5H(1), 36(2)(a), 36(2)(aa), 473DD

Cases cited:

M147 v Minister for Immigration and Border Protection [2018] HCA 16

BRA16 v Minister for Immigration and Border Protection [2018] FCA 127
AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: CPU18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 496 of 2018

Judgment of: Judge Egan

Hearing date: 16 January 2019

Date of Last Submission: 16 January 2019

Delivered at: Brisbane

Delivered on: 16 January 2019

REPRESENTATION

Counsel for the Applicant: Mr Kumar

Counsel for the Respondent: Ms Hooper

Solicitors for the Respondent: Minter Ellison

ORDERS

IT IS ORDERED THAT:

1. The application for review filed on 21 May 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 496 of 2018

CPU18

Applicant

And

MINISTER FOR HOME AFFAIRS & ANOR

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 13 October 2012.  On 15 June 2017, the applicant made application for a safe haven enterprise visa (SHEV - CB108).  The applicant had withdrawn his earlier application for a temporary protection visa (CB151).  A delegate of the Minister refused the visa application on 25 July 2017.  The decision of the delegate was referred to the Immigration Assessment Authority (“the Authority”) for review.  Written submissions made on behalf of the applicant were submitted to the Authority on or about 21 August 2017.  The Authority handed down its decision on 19 April 2018. It did not overturn the decision of the delegate. 

2. On 21 May 2018, the applicant filed an application for review of the decision of the Authority pursuant to the provisions of Section 476 of the Migration Act 1958 (Cth). There were six (6) grounds contained in the amended application filed on behalf of the applicant. Mr Kumar of counsel who appeared on behalf of the applicant advised the Court that reliance upon grounds 1 and 4 had been abandoned. At paragraph thirteen (13) of the reasons of the Authority, the applicant’s claims were summarised (CB 440-441). Those claims were as follows:

   ·He was born 25 June 1971 in Jaffna in the Northern Province of Sri Lanka

   ·In 1987 he was detained and tortured by the Elam People’s Revolutionary Liberation Front (EPRLF) after they suspected he knew two other people they were in pursuit of who managed to escape

   ·After being displaced in 1995 due to the conflict he was detained and tortured by the police on suspicion of being an LTTE member.

   ·He was arrested and detained by the authorities for 18 months for failing to give information in connection with a bomb blast in Colombo. He hid at his Aunt’s place until 2002.

   ·In November 2002 he went to Saudi Arabia on the advice of his lawyer who said the authorities would build a case against him and put him back in jail if he did not.

   ·A few days later after returning to Sri Lanka in 2009 CID officers found him and took money he had saved for his wedding.

   ·He married in 2009 and started working as a farmer. Shortly after this he found decaying bodies in a well on his property and alerted the authorities. The army accused him of having killed these people and he was tortured and forced to sign a document written in Sinhalese which he believes was a confession. \

   ·One day in July 2012 he was abducted in a white van. He believes in was the CID. He was taken to a camp and detained for a night and severely mistreated. He was released after paying his captors off. After being released he received calls from unknown people threatening to kidnap him. He left for Sri Lanka in fear of his safety for Malaysia on 9 September 2012 and travelled to Australia from there.

   ·His brother was killed by unknown people in 2016.

   ·He fears being detained extorted and mistreated by the Sri Lankan authorities including the CID Terrorist Investigation Division (TID), military and paramilitary groups like the EPRLF. He fears being tortured by the authorities in order to extract a confession. He fears being found and detained after leaving the airport and returning to his home village. Documents he signed may be used against him.

3. He will suffer harm because he is young Tamil male from the Northern Province who has sought asylum in a western country. The Authority accepted that the applicant had been detained and mistreated by the Eelam People’s Revolutionary Liberation Front (EPRLF) in a case of mistaken identity dating back to 1987.  The Authority also accepted that the applicant had been detained in 1995 of suspected LTTE involvement, but that he had been released one week later, no longer under suspicion.  The Authority also accepted that the applicant had been charged and imprisoned under the provisions of the Prevention of Terrorism Act 1978 and that he had been mistreated for failing to give information in 1999, but that he was released without conviction after having served eighteen (18) months in jail. 

4. The Authority accepted that the applicant had been interrogated in relation to some corpses found in a well on his property in 2009, but it did not accept that the applicant had ever been charged, detained or forced to sign a confession in relation to that matter.  The Authority did not accept that the applicant had been extorted by Criminal Investigation Division (CID) officers in 2009 or detained and extorted by CID officers in 2012, nor that he had received threatening calls from unknown people following any event at the time. 

5. The Authority did not accept that claimed events asserted by the applicant as having occurred in 1987, 1995, 1999 and 2009 were, in any way, connected, nor did it accept that the relevant authorities in Sri Lanka had had any interest in the applicant since the 2009 incident.  The Authority referred to independent country information and did not accept that there was a real chance that the applicant would face harm through mistreatment, extortion or threat of extortion by paramilitary groups or authorities (CB447-448 and [24] of reasons) if returned to Sri Lanka. 

6. The Authority did not accept that the applicant was wanted by any relevant Authority in Sri Lanka in connection with an adverse security profile at the time when the applicant left Sri Lanka in 2012 or subsequently, nor did it accept that the applicant continued to be of interest to any of the Sri Lankan authorities.  It was noted that there had been a substantial period of time since the applicant had asserted that he had last been harassed by any such authorities, and it was found that there was nothing to suggest that the time spent by the applicant in Australia would be viewed adversely by any of the authorities. 

7. The Authority noted that it had been thirty-one (31) years since the applicant’s detention and mistreatment by the EPRLF, and it further noted that the applicant had not claimed to be mistreated by them or by any other paramilitary group whilst in Sri Lanka after the 1987 incident.  The Authority found at [25] of its reasons that the applicant was no longer of any relevant interest to such EPRLF or other paramilitary groups.  Nor at [26] of its reasons did the Authority accept that the applicant, being a Tamil man in his late forties from a northern province, was of any adverse interest to any arm of the Sri Lankan authorities. 

8. The Authority considered that, based upon the applicant’s profile and the country information which it had before it, there was no real chance that the applicant would be detained, interrogated, tortured, extorted or otherwise harmed because of his ethnicity, origin, previous experiences or because he had lived in Australia for the past five years, nor was it satisfied that he would suffer any real chance of harm if he was to return to Sri Lanka either on the basis that he had unlawfully left Sri Lanka in 2012, or by reason of the fact that he had sought asylum in Australia subsequent to his departure from Sri Lanka (CB448 and [27] of reasons). 

9. The Authority accepted that it was likely that the applicant would return to Sri Lanka via a temporary travel document, rather than a passport – the applicant’s passport having been separated from the applicant some time ago – but the Authority did not consider that the applicant would face any real chance of harm by reason of his re-entering Sri Lanka on such temporary travel document, even though he may, upon arrival in Sri Lanka, be checked for any past criminal or Court record by reason of such entry process.   

10. The Authority found that the applicant did not meet the requirements of the definition of refugee in Section 5H(1) of the Act, nor that he met any of the criteria as set out in Section 36(2)(a) of the Act, nor did the Authority accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka that there was a real risk that the applicant would suffer significant harm. It found that the applicant did not meet the relevant criteria as set out in Section 36(2)(aa) of the Act.

11. When dealing with each of the relevant grounds as set out in the application for review, ground two (2) deals with an assertion that the Authority had improperly dealt with claims by the applicant, insofar as they might be categorised as “white van” claims.  Those “white van” claims relate to instances relating to alleged 1987 and 2012 events.  Insofar as the 1987 event was concerned, the Authority dealt with that matter in its reasons.  It related to an event many years in the past and fell under the umbrella of findings made by the Authority to the effect that the Authority was not satisfied that it was of relevance to the proper consideration of the applicant’s claimed application for a visa. 

12. The Authority at paragraphs [1-16] inclusive of its reasons (under the heading “Factual Findings” as set out in CB 441 - 445 inclusive) made detailed findings in relation to each of the claims raised by the applicant.  In such paragraphs, it set out how there were inconsistencies in the evidence of the applicant leading the Authority not to accept the most recent version of events as related by the applicant. It also found that the applicant’s evidence was in substantial respects implausible.

13. It cannot be accepted that the Authority failed to properly address the applicant’s white van allegations.  At paragraph [19] of its reasons, the Authority dealt with the 1987 mistaken identity claim made by the applicant.  It also made findings that it did not accept that the applicant had been detained and extorted by CID officers in 2012.  The Authority found that the relevant authorities had not had any relevant interest in the applicant for a very long time.

14. At [20-28] inclusive of its reasons (CB 446-449 inclusive), the Authority gave a detailed account of its consideration of country information reports indicating improvements in Sri Lanka since the applicant’s departure in 2012, particularly since the election of the Sirisena Government in Sri Lanka in 2015.  It noted that DFAT reported in 2017 that the monitoring and harassment of Tamils in day-to-day life had significantly decreased, was not longer state sponsored or systemic, and that members of the Tamil community had described a positive shift in the nature of interactions with authorities.

15. It also noted that the UK Home Office had, in a report dated 19 May 2016, stated that it considered that being of Tamil ethnicity did not in itself warrant international protection. It also referred to the December 2016 report of the UN Special Rapporteur on Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment on a mission to Sri Lanka which went on to state that those deemed to have any link to the LTTE during the period of great conflict remained subjected to extensive surveillance and intimidation by the military, although to a lesser extent than immediately after the war. The Authority made its findings in the context of its consideration of a considerable amount of country information documentation which it had before it, and it was satisfied that the applicant did not meet the definition of a refugee, or that the applicant ought to be granted complementary protection. That ground is without merit.

16. Grounds 3 and 5 were lumped together by the applicant. Those grounds related to an assertion that the Authority had erred in its approach to a consideration of whether exceptional circumstances existed as set out in Section 473DD of the Act. In that regard, the Authority in [4-12] inclusive of its reasons (CB 438-440 inclusive) referred to its having received new information. The information was set out in [5] of its reasons.

17. The Authority dealt in detail with the nature and substance of the new information which had been submitted to it. It was noted at [4] of the reasons that to the extent that the submission engaged in argument with the delegate’s decision and was based on information which was before the delegate, the Authority had had regard to such arguments.  At [7-9] inclusive of the Authority’s reasons, the Authority identified that the personal statement provided by the applicant contained information in the nature of general country information as well as general background information about the applicant’s family and past events. The Authority found that it was not satisfied that had it been known, the new information may have affected consideration of the applicant’s claims.

18. The Authority also noted that the personal statement contained new claims which related to the applicant’s claims made before the delegate which presented a very different picture to the applicant’s evidence before the delegate. It did so at [8] and [9] of its reasons, concluding at [10] that the Authority was not satisfied that exceptional circumstances existed to justify consideration of such new information within the ambit of section 473DD of the Act. It recorded at [9] of its reasons that no explanation had been given to explain the significant differences in the version of events presented to the Authority, as opposed to those presented to the delegate.

19. The Authority considered the Human Rights Watch World Report and the Committee Against Torture Report at [12] of its reasons (CB 440), noting that both were publicly available documents which predated the date of the delegate’s decision and which had not been provided to the delegate despite the applicant having had an opportunity to do so. It could not be said that the Authority failed to have regard to its obligations in respect of a consideration as to whether exceptional circumstances existed or not so as to require it to consider such new information, bearing in mind that the new information was required to meet the requirements of the section, and that there was the imposition of a cumulative requirement in that regard (see M147 v Minister for Immigration and Border Protection [2018] HCA 16 at [29]-[31] inclusive per Gageler, Keane and Nettle JJ and at [88] per Gordon J; BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26]; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13]; and Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [36].

20. Insofar as the documentary material at CB 321 was concerned, the Authority found that the material had never been received by the department (see email at CB 427). The Authority considered the substantive new claims and discussed inconsistencies with other claims made by the applicant. The Authority identified the lack of explanation as to the circumstances in which the personal statement had been created, including that as a reason for concluding that there were no exceptional circumstances justifying the consideration of such new information.

21. The Authority in its reasons can be seen to have weighed up its consideration of credibility issues together with other relevant matters before concluding that there were no exceptional circumstances justifying such consideration. It cannot be said that the Authority did not engage appropriately with the requirements of Section 473DD of the Act when reaching its conclusion, and no jurisdictional error was disclosed thereby, either in respect of such consideration involving exceptional circumstances, or as to its approach to the consideration of relevant country and other information.

22. The approach of the Authority was in no relevant respect in error. Even if found to be in error, it could not be said that any such error was, in the circumstances, material, or that it went to jurisdictional error (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34). There is no merit to grounds 3 and 5 of the application for review.

23. Ground 6 of the application for review is an assertion that the Authority failed to consider a claim that the applicant had been a member of EPRLF.  The Authority did deal with this claim which related back to 1987 at [13] of its reasons, the Authority not accepting that the applicant had experienced any relevant problems with the EPRLF after his release as set out in [3] of its reasons (CB 442).

24. The Authority gave a balanced decision making due reference to that 1987 event, as well as to other relevant events as set out in paragraphs [19]-[28] of its reasons. The Authority appropriately dealt with the applicant’s claims in all the circumstances. This ground is also without merit.

25. It cannot be said that no other rational or logical decision-maker could not have made the same decision in respect of the way in which the decision was made by the Authority in the sense as set out by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] which provides as follows:

    [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 be considered as legally unreasonably 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 stated 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 as a whole 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:  1 February 2019