CQM19 v Minister for Immigration

[2020] FCCA 502

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQM19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 502

Catchwords:
MIGRATION – Application for a Safe Haven Enterprise visa – Administrative Appeals Tribunal – whether the Tribunal failed to have regard to relevant material – whether the Tribunal failed to consider relevant aspects of the applicant’s claim – whether the Tribunal determined the matter unreasonably, illogically, without intelligible justification or active intellectual consideration – whether the Tribunal erred in finding that the applicant was not a member of the same family unit as his mother – no jurisdictional error made out – third further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5J, 36, 91WB, 418, 424, 425

Migration Regulations 1994 (Cth), r.1.05A

Cases cited:

MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68

Applicant: CQM19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1708 of 2019

Judgment of: Judge Street

Hearing date: 6 March 2020

Date of Last Submission: 6 March 2020

Delivered at: Sydney

Delivered on: 6 March 2020

REPRESENTATION

Counsel for the Applicant: Mr G Schipp

Solicitors for the Applicant: Western Sydney Legal and Migration

Counsel for the Respondents: Ms J Davidson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. 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.

2. Leave is granted to the applicant to rely upon the proposed third further amended application on the basis that it contains only the grounds in the exact form as found in Exhibit B and the Court directs that the applicant file and serve an electronic copy in that form on or before close of business on 12 March 2020.

3. The third further amended application is dismissed.

DATE OF ORDER: 6 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1708 of 2019

CQM19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 Administrative Appeals Tribunal (“the Tribunal”) made on 24 June 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

3. The applicant arrived in Australia on 27 February 2019 as an undocumented air arrival. The applicant applied for a Safe Haven Enterprise visa on 5 March 2019. 

4. In the applicant’s application for the Safe Haven Enterprise visa, under Part B “Persons included in this Application and Family Composition”, the only person included in the application, as identified in paragraph 2, was the applicant. Paragraph 4 of the application had a heading referring to members of the same family unit not included in this application.  Question 4 of paragraph 4 asked:

   Are there any members of the same family unit who are in Australia or overseas but are not included in this application?

   The answer, yes, was ticked by the applicant.

5. The applicant provided a statement in support of the claims for protection identifying that he was a Tamil born in a Tamil-dominated Northern Province village which was controlled by the Liberation Tigers of Tamil Eelam (“the LTTE”). The applicant referred to what occurred at the end of the war in May 2009 when the applicant was in his early teens. The applicant referred to both his parents working with the LTTE but claimed he did not know their actual functions with them.

6. The applicant referred to his father having been assaulted and having died in 2013.

7. The applicant also provided a statement from his mother in support of her application for a Safe Haven Enterprise visa and requested that that be taken into account in considering his claims for protection. In the statement in that regard, it identified that his mother would like to assist him in the interview. The applicant’s mother attended the applicant’s hearing before the Tribunal and provided evidence.

8. The statement identified that the applicant’s mother came to Australia when the applicant was 15 and at that time he was dependent upon her. The applicant, in his statement as an adult, made the assertion that he requested protection be given him as a dependant of his mother and a member of her family unit. No information was provided to the Tribunal that identified criteria required by reg.1.05A of the Migration Regulations 1994 (Cth) (“the Regulations”). Further, the applicant made the application for the Safe Haven Enterprise visa at a point of time after his mother had been granted a Safe Haven Enterprise visa in relation to s.91WB of the Act. 

9. In summary, the applicant claimed to fear harm from a particular person “M” and his associates on the basis that the applicant and his mother had information relating to jewellery.

10. The applicant also claimed to fear harm by reason of an alleged association between M and the Criminal Investigation Department (“the CID”) and by reason of his ethnicity and background.

11. On 20 March 2019 the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. 

12. The applicant applied for review of the Delegate’s decision on 23 March 2019. The applicant was invited to, and attended, two hearings on 30 May 2019 and 14 June 2019 to give evidence and present arguments.  The transcripts of those hearings have been tendered into evidence. The Tribunal identified in that regard that the applicant’s mother also gave evidence to the Tribunal. 

13. The Tribunal identified the background to the application for review and summarised the relevant law.

14. The Tribunal summarised the applicant’s claims, including that his parents were members of the LTTE, his mother was in communications and his father was in supply. 

15. The Tribunal noted that the applicant claimed in particular that one person, M, who worked for the LTTE, now works for the CID. The applicant further claimed that M then told the CID that the applicant’s mother knew about where weapons were and that she should return to the LTTE. The applicant claimed that he was harassed by the CID. The applicant alleged that he faced constant threats, intimidation and demands for money, as well as attention from authorities. The applicant further claimed that he was threatened by the CID and that he fears harm by reason of his ethnic background and association with the CID. The applicant also asserted that there was an untranslated document from the CID office dated 5 January 2019 by reason of which the applicant claimed to fear harm. The Tribunal identified that the Delegate had noted that the interpreter stated that that document advises that the applicant was required to report to the CID by 25 January 2019 and that if he fails to do so an arrest warrant will be issued for him.

16. The applicant referred to the fact that at the time his mother came to Australia he was still not an adult and, at that time, dependent upon her. The applicant also claimed that he was not at that stage well. The applicant requested that protection be given to him as a dependant of his mother and as a member of the family unit. 

17. The Tribunal referred to the applicant’s evidence about alleged person M and two or three other men demanding money from him in or about March 2018. The applicant alleged that at this time, M was demanding to be told where the LTTE had hidden jewellery. The applicant alleged that the M then returned to his home again with three men. The applicant alleged that he was a subject of attack and went to live with his aunt to hide from M and his associates.

18. The applicant confirmed to the Tribunal that his reference to constant threats, intimidation and demands for money referred only to the threats by M and his associates. The applicant confirmed that he had not received threats from the authorities or any other group or individual. 

19. The Tribunal referred to the applicant’s claim that M had aligned himself with the CID and would have the CID pick up the applicant if he returned to Sri Lanka. The applicant claimed a fear of being harmed by M and his associates and, that in the event that he returned, M would cause the CID to kidnap and shoot him. The applicant claimed to fear harm of being kidnapped and shot by M and his associates or upon their instructions by the CID.

20. The Tribunal referred to country information and accepted that the applicant was an ethnic Tamil who grew up in a Northern Province being a former LTTE controlled area. The Tribunal accepted that the applicant’s mother worked for the LTTE as a communications officer. The Tribunal accepted that the family were housed in an Internally Displaced Person (“IDP”) camp after the war as displaced Tamil civilians. The Tribunal accepted that the applicant’s mother and father had not been identified as LTTE cadres by the authorities. 

21. The Tribunal referred to the applicant’s mother and two sisters arriving in Australia as unauthorised maritime arrivals and being granted a Safe Haven Enterprise visa on 10 July 2017.

22. The Tribunal also identified that the applicant made trips in and out of Sri Lanka in January 2018 to Singapore, in May 2018 to India, in August 2018 to Azerbaijan and Dubai, on 26 January 2019 via Singapore to Australia.

23. The Tribunal found the applicant did not present as a credible witness and that it appeared that he had embellished or fabricated the evidence in support of his claims. 

24. The Tribunal referred to the applicant’s claim relating to his mother holding a Safe Haven Enterprise Visa in her own right that was granted before he arrived in Australia. The Tribunal correctly identified that the applicant cannot be granted a Safe Haven Enterprise Visa simply because he claims to be a dependant of his mother. It was apparent that, at the time the application was lodged, the applicant was no longer a child and there is no evidence to support that he was a dependant or could meet the criteria and the regulations.

25. Further, as the Tribunal identified, the applicant lodged his own SHEV application but on a proper reading did not assert that he was a member of a separate family unit or that he was dependent upon his mother. The reference to his dependence in his statements is clearly historical. The Tribunal was correct in identifying the applicant’s application was separate from that of his mother. The Tribunal referred to the profile that his mother may have in relation to his claim for protection and that the applicant’s claim is otherwise independent of his mother’s application for protection.

26. In the course of the hearing, it is apparent that the Tribunal expressly raised with the applicant’s mother that she and the applicant’s sisters feared harm by reason of being women in seeking protection. The Tribunal’s finding in that regard was clearly open because, in those circumstances, the Tribunal, in its reasons, referred to the fact that at the hearing the applicant’s mother confirmed that her claim was based on the fact that she and the sisters were females. 

27. The Tribunal turned to the claims concerning the applicant’s parents’ involvement as members of the LTTE. The Tribunal accepted, due to the father’s inability to work, that the applicant’s mother started working for the LTTE in about 2003. The Tribunal found that the applicant’s mother did not claim to be the head of communications or to have held any position of responsibility within the LTTE. The Tribunal found that, rather, she worked in the LTTE’s communication unit as a low-level civil servant employee for approximately six years. It was in those circumstances that the Tribunal turned to the tasks that were performed by the applicant’s mother, including passing information obtained from Sri Lankan intelligence officers, distributing money received from the diaspora and assisting in tapping calls and other information. The Tribunal noted that the applicant’s mother did not claim to be a member of the LTTE. The Tribunal accepted that the applicant’s mother worked for the LTTE. The Tribunal found that she worked as a low-level employee and did not accept that the applicant’s mother held any position of responsibility or that she was ever a member or cadre of the LTTE.

28. The Tribunal found the applicant’s claims that his father was a member of the LTTE and worked in the supply section to be embellished or a complete fabrication. The Tribunal found the applicant’s father was not involved in the LTTE and, as such, not a member or cadre of the LTTE as claimed.

29. The Tribunal referred to the applicant’s claims concerning his father passing away prior to receiving threats from M and his associates. The Tribunal referred to the applicant’s claims that the threats were based on his mother’s knowledge of the location of jewellery hidden by the LTTE and not because of any perceived involvement in the LTTE. The Tribunal found that there is no real chance of the applicant being seriously harmed as a result of his father’s perceived involvement in the LTTE. 

30. The Tribunal referred to country information in relation to rehabilitation and found there is no real chance the applicant be seriously harmed as a result of his mother having been interrogated and harassed and threatened as a result of her involvement in the LTTE.

31. The Tribunal referred to the mother having confirmed to the Tribunal that she and her daughters fled because they faced unwanted sexual advancements from the Sri Lankan Army (“the SLA”).

32. The Tribunal referred to the applicant’s claim that, after his mother departed for Australia, his brother had been harassed by M and his associates. The Tribunal noted that it had not been provided with any evidence to support claims in relation to his brother leaving Sri Lanka or attention given to his brother by M and his associates. The Tribunal found that any threats toward the brother were of a relatively low level of harassment and did not amount to serious or significant harm. The Tribunal, taking into account the lack of independent or supporting evidence, placed no weight on the applicant’s evidence that his brother was threatened or harassed by M and his associates. 

33. The Tribunal referred to the applicant’s claims in relation to the threats by M and his associates and referred to the finding that his mother worked for the LTTE’s Communication Unit as a low to medium level civil servant for approximately six years and that there is nothing to suggest she held a position within the organisation to have information as to where the LTTE hid any of its financial assets. The Tribunal also took into account the applicant’s mother’s evidence that she had no such knowledge.

34. The Tribunal noted that M, having worked with the applicant’s mother, would have known that she was a low level employee and would not have any knowledge of the location of jewellery as claimed. It was in these circumstances that the Tribunal found it extremely unlikely that a person pressing to have information would continue to do so for a period of approximately two years without carrying out their threats. 

35. The Tribunal referred to the applicant’s evidence that the visits by M and his associates to the applicant’s house were infrequent. Despite the applicant’s evidence that his grandfather was assaulted, the Tribunal did not accept that M and his associates would have visited the applicant’s home on such infrequent occasions and for over such a long period for the purpose of discovering a location of jewellery.

36. The Tribunal did not accept the applicant was threatened or harassed by M and his associates or any members of the CID for the purpose of discovering the location of LTTE jewellery as claimed. The Tribunal found the alleged attacks by M and his associates on the applicant so improbable that they lacked credibility. 

37. The Tribunal accepted that M and his associates may have approached the applicant for money. The Tribunal did not accept that the applicant was threatened or harassed as claimed. The Tribunal did not accept that the applicant was attacked by M in October 2018 as claimed. 

38. The Tribunal referred to the applicant’s travelling overseas and his return to Sri Lanka. The Tribunal found the fact the applicant returned to Sri Lanka on each occasion indicated that, on an objective basis, he did not have a well-founded fear of persecution upon return. The Tribunal further found that the applicant, if he had held such a fear, would not have returned to Sri Lanka

39. The Tribunal also referred to a CID letter, which the Tribunal correctly noted was conceded by the applicant through submissions, is to be a document that may not be genuine and may have been used to scare him into divulging the location of the jewellery. The Tribunal identified that the latter purports to require the applicant to report to the CID in Colombo. The Tribunal found this improbable for the purpose of the applicant divulging information as to the location of jewellery. The Tribunal referred to the fact that the letter may not be genuine, the fact that the Tribunal does not accept the applicant was threatened as claimed in relation to the jewellery, and that it did not accept the applicant was attacked as claimed. The Tribunal gave the letter no weight.

40. The Tribunal found that the applicant was not threatened by M and his associates as claimed and did not have a well-founded fear of persecution on return from India and Dubai. The Tribunal further found that there is no real chance that the applicant would be seriously harmed in the event he returns to Sri Lanka as a result of any alleged threat from M and his associates as claimed. 

41. The Tribunal referred to the applicant’s family links to the LTTE. The Tribunal referred to the fact that the authorities did detain and interview the applicant’s mother, but not for any political or strategic purpose, but rather for inappropriate personal reasons not related to her involvement with the LTTE. The Tribunal found that the applicant’s mother was not detained for questioning and sent to rehabilitation. Taking into account the applicant’s evidence and the country information, the Tribunal found that there is no real chance that the applicant would be seriously harmed in event he returns to Sri Lanka by reason of a family association with the LTTE.

42. The Tribunal referred to the applicant returning as a refugee. The Tribunal did not accept that the applicant received any threats from anyone else in the community or from the authorities and, particularly, CID as claimed. The Tribunal accepted that the applicant may face some societal discrimination upon return to Sri Lanka. However, the Tribunal found that there is no real chance that the applicant will be seriously harmed in the event he returns to Sri Lanka by reason of being found a refugee.

43. The Tribunal referred to the applicant’s ethnicity. The Tribunal found that there is no real chance that the applicant would suffer serious harm by reason of being an ethnic Tamil upon his return to Sri Lanka. 

44. The Tribunal proceeded to consider, even though it was not required to do so, whether that the applicant could reasonably relocate to Colombo and found that the applicant could do so. The Tribunal found the applicant would be able to find employment in the reasonably foreseeable future on return to Sri Lanka and could reasonably relocate to Colombo.

45. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.5J(1)(c) of the Act. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has a protection obligation under s.5J(1)(a) of the Act and s.5J(1)(b) of the Act. Therefore, the Tribunal was not satisfied that the applicant would meet the criteria in s.36(2)(a) of the Act. 

1. The Tribunal found that the applicant did not meet the criteria in s.36(2)(aa) and turned to the issue of complementary protection.

2. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there is real risk that the applicant will suffer significant harm as required under s.36(2)(aa) of the Act. There is an obvious typographical error in paragraph 97 of the Tribunal’s reasons in the reference to India. Reading the Tribunal’s reasons as a whole, it is clear that the Tribunal appreciated and conducted the review on the basis that the applicant was a citizen of Sri Lanka. The reference to India is an obvious typographical error that it is not alleged as giving rise to any jurisdictional error.

3. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

4. The Tribunal, in relation to the evidence, found that the applicant did not satisfy the requirements of s.36(2) of the Act on the basis of being a member of a family unit or a person who satisfies the requirements of s.36(2)(a) of the Act or section 36(2)(aa) of the Act. The Tribunal found that the applicant did not satisfy the criteria in s.36(2) Act.

5. Accordingly, the Tribunal affirmed the decision on the review.

The grounds

1. The grounds in the third further amended application are as follows: 

   1. By failing to have regard to the material in the Applicant's mothers Department File (including the reasons for the granting of a protection visa and the evidence she gave in relation thereto) the Tribunal's decision was infected with jurisdictional error because:

   a. It was not provided with all documents relevant to the review of the decision pursuant to s4 l 8(3) of the Migration Act 1958,

   b. The failure to provide documents under s4 l 8(3) deprived the Applicant of a fair hearing under s425 of the Migration Act, 1958,

   c. The Tribunal unreasonably failed to get that information pursuant to s424 of the Migration Act, 1958,

   d. The Tribunal failed to make an obvious enquiry regarding a critical fact, being the reasons behind the granting of the Applicant's mother's protection visa and the evidence relating thereto.

   2. The Tribunal failed to understand the Applicant's claim and did not determine all aspects of it, in that:

   a. Failed to determine whether the Sri Lankan Authorities were aware of the Applicant's mother's role in intelligence,

   b. Failed to consider that Mylvaganan might expose the Applicant's mother's role in intelligence to the CID or other authorities, in other words, the possibility of future harm,

   c. Failure to consider the possibility that the CID letter was genuine, and the consequences thereof.

   3. The Tribunal determined the matter unreasonably, illogically, without intelligible justification or active intellectual consideration in that it:

   a. Misapprehended the nature of the Applicant's mother's role within the LTTE and the method by which risk was determined,

   b. By determining that the Applicant's mother did not know about the location of jewellery, it reasoned that Mylvaganan that would have been aware of this, and thus did not accept the Applicant's claim.

   c. In noting that the Applicant did not know whether the CID letter was genuine or not, it determined that it was not, and considered the Applicant's claim on that basis only.

   4. The Tribunal failed to determine according to law, failed to consider, or took into account irrelevant considerations in determining that the Applicant was not a member of the Same Family Unit as the Applicant's mother, who had already been granted a Protection Visa.

Ground 1

1. In relation to ground 1, Mr Schipp, counsel for the applicant, provided a combination of arguments. First, in relation to paragraph a, Mr Schipp argued that there was a jurisdictional error in that the Tribunal was disabled from conducting a review required under pt.7 of the Act by the failure of the Secretary to provide documents relevant to the review of the decision in breach of s.4(3) of the Act. In that regard, Mr Schipp relied upon other documents concerning the applicant’s mother’s arrival interview and the transcript of the arrival interview and documents of that kind, which it was conceded were not before the Delegate in the deliberation of the applicant’s application for a Safe Haven Enterprise visa.

2. The invitation letter sent to the applicant on 9 May 2019 expressly said: “We have considered the material before us but we are unable to make a favourable decision on this information alone.” Further, it is apparent that the applicant was represented at the Tribunal hearing. The applicant was also unsuccessful before the Delegate pursuant to s.5AAA of the Act. 

3. It is for the applicant to provide sufficient evidence to establish his claims. It is apparent from the applicant’s statement that he was well alive to his mother’s application for a Safe Haven Enterprise visa. It is also apparent that the applicant made express reference to the document he wished to provide in support of his claims from his mother, being her statement.

4. Mr Schipp, in substance, argues that, by reason of the reference to the applicant’s mother’s role in relation to the LTTE, the information in the entry interview and the recording of the interview, found in the transcript, can be said to be material and that the applicant has been deprived of the possibility of a successful outcome by reason of the breach of s.418(3) of the Act. The Court does not accept that there has been any breach of s.418(3) of the Act or that the documents asserted concerning the record of the arrival interview or transcript were documents relevant to the review of the Delegate’s decision.

5. Further, the Court is of the view that the alleged breach, in this case, is one in respect of which the same type of principles as identified in MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at [46] to [68], are a useful analogy. The nature of the hearing before the Tribunal in that case was, however, very different to that under pt.7AA of the Act. In that case, the Full Court of the Federal Court of Australia identified that, if there was material that had not been provided, the question became whether as a matter of fact it can be said to be material. That Court also said that the applicant bears the onus in that regard in determining whether or not the applicant has been deprived of the possibility of a successful outcome.

6. Mr Schipp skilfully endeavoured to argue the significance of the mother’s claims and the information in her arrival interview. There was nothing to satisfy the Court, as a question of fact, that there was material relevant to the applicant’s application and the documents referred to by Mr Schipp could not possibly have deprived the applicant of the benefit of a successful outcome. The applicant, in the present case, had a real and meaningful hearing before the Tribunal. 

7. The transcripts of the two hearings have been tendered. Mr Schipp has suggested that the applicant would have been unaware of and not in possession of internal documents such as the entry interview recording and that in these circumstances, there may be an explanation for why his representatives and the applicant did not seek to identify those documents. The Court does not accept that this proposition is anything more than an endeavour to invite the Court to descend into the merits in circumstances where it was patent and clear that the applicant would have been aware that the his mother would have gone through a process in respect of the application for a Safe Haven Enterprise visa that the representative, if they had wished to do so, could have sought to obtain. There is no evidentiary basis for the allegation of breach of s.418(3) of the Act.

8. Further, the documents, the subject of the alleged breach, are not as a matter of fact ones material to the review of the applicant under circumstances of the present case. The applicant did not, in any event, even if there was some breach of s.418(3) of the Act, have a position where he was denied material information that deprived him of the benefit of a possible successful outcome. No jurisdictional error arises by reason of ground 1(a).

9. In relation to ground 1(b), Mr Schipp argued that, by reason of the absence of the documents, the applicant was deprived of the hearing of the kind required under s.425 of the Act. There is no substance in this contention. It is apparent that the applicant and his representative would have been well aware of the existence of information of the kind suggested in respect of his mother’s application for protection Safe Haven Enterprise visa and had ample opportunity to seek to obtain the same if it was in any way relevant to the applicant’s claims. Further, as it is apparent from reasons given by the Court, the Court is not satisfied that the material was in any way relevant and cannot be said to be material. There was no breach by the Tribunal of the requirements of s.425 of the Act. The applicant was invited to, and attended, a hearing, in accordance with the statutory regime. Having read the transcripts of the two hearings, the Court is satisfied that the applicant had a real and meaningful hearing before the Tribunal. No jurisdictional error as mentioned in ground 1(b) is made out.

10. In relation to ground 1(c), Mr Schipp argued that the Tribunal had, effectively, failed to obtain information pursuant to the power under s.424 of the Act and that that failure it was legally unreasonable. In circumstances where the applicant was represented, and the Tribunal informing the applicant that it could not make a favourable decision on the information that was before it, and where the applicant is plainly aware of his mother’s application in obtaining a Safe Haven Enterprise visa. The lack of any express consideration of the power under s.424 of the Act cannot be said to lack an evident and intelligible justification. No jurisdictional error of the kind alleged in respect of ground 1(c) is made out.

11. In relation to ground 1(d), Mr Schipp suggested that the obtaining of the information relating to the entry interview and the transcript of the same was an obvious inquiry of a critical fact and that it was easily ascertainable. No critical fact was identified by Mr Schipp that could be said to be the subject of any such duty. There was no such duty in the present case. No jurisdictional errors as alleged in ground 1(d) is made out.

12. No jurisdictional error accordingly is made out by ground 1.

Ground 2

1. In relation to ground 2, the proposition that the Tribunal failed to understand the applicant’s claim has not been supported by any of the evidence to which the Court was taken by Mr Schipp in relation to the mother’s role in the intelligence unit or the mother’s role in the LTTE.  The Tribunal understood the nature of the tasks the mother had undertaken and there is no basis for the assertion of a misunderstanding of the claims or evidence in relation to the mother’s role. 

2. Further, it is apparent that the Tribunal appreciated the assertion that M may provide information to the CID, as the Tribunal expressly referred to the threats claimed by the applicant in that regard. The Tribunal, however, made adverse credit findings, rejecting the applicant’s claims in respect of M and his associates. In those circumstances, there is no substance to the allegation in ground 2 that the Tribunal failed to make dispositive findings in respect of the applicant’s claim concerning M and his associate. There is also no basis for finding that the Tribunal did not have a real and meaningful engagement with the applicant’s submissions and the evidence in relation to the mother’s role in the LTTE, his claims concerning M and his associates and the CID and the possibility of future harm. The Tribunal made adverse findings that were open to the Tribunal and dispositive of the applicant’s claims. No jurisdictional error is made out by grounds 2(a) or 2(b).

3. In relation to ground 2(c), the letter that the Court was taken to was an untranslated letter and it is apparent from the transcript that it was accepted that it may not be genuine. The Tribunal clearly referred to the concession and clearly referred to the letter. There is no basis for the assertion that the Tribunal misunderstood the applicant’s claims to fear harm by reason of the letter. The Tribunal was entitled, as it did, to give the letter no weight in the circumstances it identified as summarised above. Mr Schipp sought to argue that there should have been findings made in the event that the letter was genuine. It is apparent that the Tribunal decided to give the letter no weight in the circumstances of the present case. There was no necessity, given the adverse credibility findings that were made in respect of the applicant’s claims, for the Tribunal to make any other finding. No jurisdictional error as alleged in ground 2(c) is made out. Ground 2 failed to make out any jurisdictional error.

Ground 3

1. In relation to ground 3, there is a combined series of alleged errors in relation to the mother’s role in the LTTE. Those submissions in relation to the evidence are nothing more than an invitation to this Court to engage in merits review. They do not identify any arguable case or relevant error. It is apparent from the Tribunal’s reasons, as summarised above, that there was active intellectual engagement and a proper consideration of the applicant’s claims by the Tribunal concerning his mother’s role with the LTTE. The adverse credibility findings were open, logical, rational and reasonable. It was in light of the low level nature of the mother’s role that it was open for the Tribunal to make the adverse findings, taken together with the implausibility of the applicant’s claims concerning her knowledge of the hiding of valuable assets by the LTTE. The adverse finding did not reflect any illogicality or unreasonableness. No jurisdictional error is made out by ground 3(a) and alleged in ground 3(b).

2. It was open to the Tribunal to reason in relation to the proposition that M had a degree of knowledge by reason of which he was seeking to pursue a threat against the applicant to disclose the identity of the location of valuables that his mother had allegedly ascertained in the course of her role. It was implicit that M must have been aware of the obtaining of such information by the mother. In circumstances where such an implausible claim was advanced it was entirely open to the Tribunal to reason as it did in respect of the applicant’s alleged claim and the adverse findings made in respect of the claim concerning M and his associates and the mother’s alleged knowledge of those assets. Ground 3(b) is really nothing more than an invitation to engage in merits review. No jurisdictional error is made out by ground 3(b).

3. In relation to ground 3(c), this is in substance, again, an invitation to the Court to engage in merits review attached to the issue as to whether or not the CID letter was genuine. The concession was made by the applicant’s representative that the letter may not be genuine. The Tribunal was entitled as such to give it no weight. That decision cannot be said to be illogical, irrational or legally unreasonably, nor does it reflect any failure to have a real and meaningful engagement or proper active intellectual engagement with the applicant’s claims and evidence. No jurisdictional error is made out by ground 3(c). 

Ground 4

1. In relation to ground 4, it was argued that the Tribunal had failed to consider whether or not the applicant is a member of the same family unit as the mother. No such claim properly arose on material before the Tribunal and a claim that was not advanced is not one that can give rise to any error by the Tribunal. Further, in any event, it is apparent that the applicant did not advance a claim that he was a dependant on a proper interpretation of his application for a Safe Haven Enterprise visa. It is also apparent that the applicant produced no evidence to meet the requirements of the relevant r.1.05A of the Regulations as referred to above. There is no basis to find, in any event, that the Tribunal’s adverse finding in paragraph 100 of its reasons did not subsume any suggestion of dependence by the applicant or his mother albeit an adult at the time of his application and an adult at the time of his hearing.

2. Further, the alleged issue in relation to the applicant being a dependant did not give rise to a jurisdictional error in light of the provisions of s.91WB of the Act. The applicant applied for a Safe Haven Enterprise visa after his mother had been granted a Safe Haven Enterprise visa. In those circumstances, no alleged error could have said to be material so as to constitute a jurisdictional error. 

3. No jurisdictional error is made out by ground 4. 

4. As the third further amended application fails to make out any jurisdictional error, the third further amended application is dismissed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the transcript of the published oral reasons for judgement of Judge Street delivered in open Court on 6 March 2020 and the parties were provided sealed copies of the Court’s orders

Associate: 

Date:  20 March 2020