CSY16 v Minister for Home Affairs

[2019] FCCA 1040

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSY16 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1040

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority adopted an erroneous meaning or misconstruction of s.473DD of the Migration Act 1958 (Cth) – whether the Authority had a real and meaningful engagement with the applicant’s claims and evidence – whether the Authority failed to assesses whether the applicant could return to his former occupation – whether the adverse findings were open to the Authority – whether the Authority misunderstood the applicant’s claims – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 476

Applicant: CSY16

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3538 of 2018

Judgment of: Judge Street

Hearing date: 16 April 2019

Date of Last Submission: 16 April 2019

Delivered at: Sydney

Delivered on: 16 April 2019

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Direct basis

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 16 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3538 of 2018

CSY16

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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 Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 21 November 2018 affirming a decision of 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. The applicant claimed to fear harm by reason of his Tamil ethnicity, his religion, being from an area once controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) during the conflict and spending time in Vanni in 2006, his involvement with the St Peter’s Church congregation and the fishermen’s organisation, his illegal departure from Sri Lanka and illegal entry into Australia, returning to Sri Lanka as a failed asylum seeker, and having spent time living in Australia.

3. On 19 July 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. The applicant was originally the subject of a letter sent by a differently constituted Authority on 21 July 2016, informing the applicant that the application for the visa had been referred for review. The letter gave the applicant an opportunity to put on new information and submissions. New information and submissions were put on, and a differently constituted Authority on 31 August 2016 made a decision affirming the decision of the delegate. That decision was set aside by orders of the Federal Circuit Court of Australia made by consent on 21 September 2018.

5. On 5 October 2018, the currently constituted Authority wrote to the applicant noting that the matter had been remitted to the Authority for reconsideration. The currently constituted Authority identified the background to the visa application and referred to the orders made by consent remitting the matter on 21 September 2018.

6. The Authority had regard to the information referred by the Secretary under s 473CB of the Act. The Authority identified that the submissions dated 25 August 2016 were ones that insofar as they engaged with the delegate’s decision was a matter to which the Authority had regard to the same. The Authority identified the statutory regime in relation to new information, including both limbs of s 473DD of the Act and proceeded to identify new information. In that regard, the Authority expressly referred to the new information concerning the applicant’s uncle’s alleged involvement in the LTTE and the alleged involvement of the applicant’s brother and sister’s involvement in the LTTE in particular periods of time that were identified.

7. The Authority referred to the absence of earlier identification of the uncle’s, brother’s and sister’s involvement with the LTTE. The Authority did not accept the applicant’s reasons for late disclosure. The Authority found that this raised questions about the reliability and corroborative value of the new information, and was not satisfied there were exceptional circumstances justifying considering the new information.

8. The Authority also referred to the new claims involving the applicant’s sister’s involvement with the LTTE, and referred to the new information being vague and lacking in detail. The Authority found the probative value was limited and it was not satisfied there were exceptional circumstances justifying considering the same.

9. The Authority referred to the applicant’s evidence given to the delegate about his uncle being arrested and disappearing in 1990, and the new information in respect of his uncle’s alleged involvement with the LTTE. The Authority noted that the applicant had not provided details as to how his uncle was involved with the LTTE and found the probative value of the new information was limited, and was not satisfied that there were exceptional circumstances to justify having regard to the same.

10. The Authority also referred to new information about a particular person, being a church elder, and was not satisfied there were exceptional circumstances justifying considering the same.

11. The Authority took into account the most recent DFAT country information report for Sri Lanka and was satisfied there were exceptional circumstances to consider the same.

12. The Authority summarised the applicant’s claims and evidence. Relevantly, in relation to the applicant’s alleged weekly reporting requirements, the Authority referred to the applicant’s claims and the letters provided and referred to country information. The Authority found it implausible that if the applicant was required to report on a weekly basis from late 2006/early 2007 until August 2012, for a period of six years, he would not have mentioned it in his arrival interview. The Authority accepted the applicant returned home after spending some time in Vanni and that he was treated with suspicion of being involved in the LTTE. The Authority was prepared to accept for a period of time after the applicant returned to a particular area, the applicant was required to report every week at a specific time and when asked. The Authority did not accept the applicant was subject to regular reporting requirements from 2007 until he left Sri Lanka in 2012. The Authority was not satisfied the applicant was subject to regular reporting requirements after the war ended in May 2009. The Authority was not satisfied the applicant was suspected of any LTTE related activities after the war ended. The Authority was not satisfied the applicant was required to have a guarantor to travel to India in late 2009 to obtain medical treatment.

13. The Authority referred to the applicant being a member of a fishermen’s association committee and issuing letters to LTTE members to obtain fishing passes and that when problems started the LTTE members moved to Vanni and Sri Lankan authorities found out that the applicant had issued letters to the LTTE members. The Authority accepted that the applicant could have issued letters to the LTTE members to obtain fishing passes prior to them moving to Vanni in 2006.

14. The Authority found it implausible that the applicant was detained for 14 days in 1999, or that he was detained by the Criminal Investigation Department (“CID”) or the Sri Lankan Army 35 days before he left Sri Lanka, or that his wife was called and threatened. The Authority did not accept the applicant would not have raised those claims earlier.

15. The Authority identified the relevant law. The Authority did not accept that the applicant was ever adversely targeted, threatened or harmed by any Sri Lankan authorities because of his involvement in his church and/or fishermen’s organisations.

16. The Authority was not satisfied the applicant’s profile would give rise to an adverse interest in him by the Sri Lankan authorities on account of any of the reasons raised. The Authority was satisfied that the applicant can return to Sri Lanka and would not face a real chance of any harm by any of the Sri Lankan authorities.

17. The Authority was satisfied the applicant can return to Sri Lanka and would not face a real chance of any harm by any Sri Lankan authorities because he is a practising Roman Catholic. The Authority was not satisfied the applicant would face a real chance of any harm if he returned to Sri Lanka because he voted for the Eelam People’s Democratic Party (“EPDP”) in the past.

18. The Authority was satisfied that there was not a real chance the applicant, as a returnee, will be mistreated during standard process on his return. The Authority found the applicant would be subject to standard procedures that do not involve systematic and discriminatory conduct and do not amount to persecution within the meaning of s 5J(4) of the Act.

19. The Authority was not satisfied, taking into account the applicant’s overall profile, that any period of surveillance and social stigma from the community would amount to serious harm. The Authority was not satisfied the applicant faces a real chance of serious harm if returned to Sri Lanka because he is a failed asylum seeker.

20. The Authority found there is no real chance the applicant would be given a custodial sentence. The Authority found that there is no information to support that the applicant would be unable to post bail or meet the costs of a fine or appearing before the Court. The Authority accepted the applicant may be detained for a short period during investigation and while waiting to be taken before Court and fined. The Authority found the treatment of the applicant under the Immigrants and Emigrants Act (Sri Lanka) is not discriminatory conduct, but rather the application of a law that applies to all Sri Lankans.

21. The Authority found a generally applicable law will not ordinarily constitute persecution. The Authority found the Immigrants and Emigrants Act (Sri Lanka) is not selectively enforced or applied in a discriminatory matter. The Authority found the investigation, prosecution and punishment for illegal departure under the Immigrants and Emigrants Act (Sri Lanka) would be pursuant to a non-discriminatory law of general application and does amount to persecution within the meaning of s 5J(4) of the Act. The Authority was not satisfied it involved systematic and discriminatory conduct.

22. The Authority was not satisfied the imposition of a fine, surety or guarantee and/or the possibility of being detained for a short period of time would constitute serious harm in this case.

23. The Authority found the applicant failed to meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

24. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant would suffer significant harm.

25. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the application are as follows:

   Ground 1

   The Authority fell into error in considering in considering the information provided by the Applicant and has misconstrued s 4730D (IAA at (11] - (13]).The Authority made jurisdictional error.

   Particulars

   (a) The Authority has not engaged with the issue of exceptional circumstances fully.

   (b) The Authority did not carry out meaningful review.

   (c) The Authority thereby committed jurisdictional error.

   Ground 2

   The Authority fell into error in considering in considering the information provided by the Applicant that he issued letters to L TTE member (IAA at [28]).The Authority made jurisdictional error.

   Particulars

   (a) The Authority has not engaged with the issue of fishing passes.

   (b) The Authority ought to have carried out further investigations.

   (c) The Authority thereby committed jurisdictional error.

   Ground 3

   The Authority fell into error by failing to take into account / ignoring relevant considerations being the relatives and / or giving meaningful consideration of the Applicant's claims thereby committing jurisdictional error.

   Particulars

   (a) The Authority ignored the roles and association of the Applicant's brother and sister (IAA at [6]- [7].with LTTE.

   (b) The Authority did not carry out meaningful review.

   (c) The Authority thereby committed jurisdictional error.

   Ground 4

   The Authority fell into error by failing to assess who is a former office bearing in the fishing association could return to his former occupation. The claim that the Applicant would not be able to survive on fishing as a means of livelihood resulting in persecutory harm. The Authority's consideration of the Applicant's claims thereby resulted in jurisdictional error.

   Particulars

   (a) The Authority ignored the conditions that may be imposed on the Applicant

   (b) The Authority failed to consider the Applicant's previous role in the industry.

   (c) The Authority committed jurisdictional error.

   Ground 5

   The Authority misunderstood the claims relating to uncle being in LTTE (IAA at [14]). The Authority's consideration of the Applicant's claims thereby resulted in jurisdictional error.

   Particulars

   (a) The Applicant has not claimed that the uncle with LTTE.

   (b) The Authority has misdirected its inquiries.

   (c) The Authority committed jurisdictional error.

   Ground 7

   The Authority committed jurisdictional error when it failed to give consideration to sister's LTTE link and the sister's husband being in Australia. The Authority failed to make inquiries.

   Particulars

   (a) The Authority failed to engage with the claims of brother in law being given protection visa.

   (b) The Authority fell into jurisdictional error.

   Ground 8

   The Authority committed jurisdictional error in consideration the Applicant's reporting conditions (IAA at [22 - 25]).

   Particulars

   (c) The Authority failed to engage with the claims found that the Applicant would be detained for illegal departure.

   (d) the Authority fell into jurisdictional error.

2. Mr Kumar of counsel, who appeared on behalf of the applicant, confirmed that grounds 6 and ground 9 were not pressed.

Ground 1

1. In relation to ground 1, Mr Kumar submitted that there had not been a real and meaningful engagement with the new information the subject of the Authority’s reasons in paragraphs 11 to 13 and accordingly, that the Authority had not engaged in an essential jurisdictional step required under s 473DD of the Act in determining whether there were exceptional circumstances to justify considering the new information.

2. The Authority gave reasons for not being satisfied that exceptional circumstances existed, sufficient to justify it considering new information about the applicant’s brother and sister. The new information was contained in the submission to the Authority and none of the information had been advised before. The Authority was clearly correct to find it was new information. The Authority engaged with the new information when considering whether exceptional circumstances existed.

3. The Authority addressed the claims about the brother and observed that this was the third version put forward by the applicant about the circumstances of his brother’s death. The year of the death contained in the document in support of the applicant’s brother being a member of the LTTE was different to the year previously given by the applicant. The Authority did not accept the applicant’s reasons for the late disclosure which did not explain the inconsistencies but led the Authority to question the reliability and probative value of the new information.

4. In respect of the claims about the applicant’s sister, likewise the Authority found the details were generally vague and contradicted what the applicant had said at his arrival. The Authority found the new information had limited probative value. The Authority in those circumstances found it was not satisfied there were exceptional circumstances to justify considering the new information.

5. I accept the first respondent’s submission that there is no basis to find that the Authority did not have a real and meaningful engagement with the applicant’s new information in determining whether it met the criteria under s 473DD of the Act. There is no basis to find that the Authority adopted an erroneous meaning or failed to take into account the whole of s 473DD of the Act. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Kumar submitted that there had been a failure to have a real and meaningful engagement with the applicant’s claims and evidence concerning the letters issued to LTTE members to obtain fishing passes.

2. It is apparent from the reasons summarised above that the Authority referred to the applicant’s claims and evidence in that regard and that the same were taken into account by the Authority. In the conclusion at paragraph 44, the Authority found the applicant’s profile would not give rise to any adverse interest in him by the Sri Lankan authorities on account of the claims raised, which included the fact that he had issued letters to LTTE members.

3. There is no substance in the contention that the Authority was required to carry out further investigation. There was no easily ascertainable material fact identified that could be readily ascertained from a particular source to support any such obligation. Nothing has been identified that supports any basis upon which it could be said the Authority was required to consider or exercise its power under s 473DC of the Act.

4. Ground 2 is in substance a challenge to the adverse findings by the Authority. There is no substance in the contention there was not a real and meaningful engagement with the applicant’s claims in relation to the letters to obtain fishing passes. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, Mr Kumar properly conceded that this ground could not succeed if ground 1 failed. For the reasons already given, ground 1 cannot succeed. Accordingly, ground 3 cannot succeed.

Ground 4

1. In relation to ground 4, Mr Kumar submitted that the applicant had claimed he would not be able to survive from fishing as a means of livelihood, resulting in persecutory harm. Mr Kuma submitted that the Authority fell into error by failing to assess whether the applicant could return to his former occupation. Mr Kumar submitted that the applicant would not be able to survive with fishing as a means of livelihood resulting in persecutory harm and that the Authority had failed to consider the applicant’s previous role in this industry.

2. I accept the first respondent’s submission that Mr Kumar’s submissions mistake the applicant’s claim and that the applicant had claimed that by reason of restrictions imposed by the Sri Lankan Navy his ability to fish would be impacted and thus his capacity to earn a livelihood. The Authority squarely rejected those claims at paragraph 48 where it found that, despite those restrictions, the applicant had still been capable of supporting himself and his family prior to leaving Sri Lanka. The Authority found, given the reduced military presence in the North and based on country information, it was satisfied the applicant would be able to earn a living for himself and his family if returned.

3. The Authority made detailed reference to the applicant’s involvement with the fishermen’s organisation in paragraph 29 which the Authority accepted in paragraph 33. The Authority made an adverse finding in respect of the applicant facing any harm because of his involvement in the fishermen’s organisations in paragraph 41. The Authority found in paragraph 62 that the applicant would be able to earn a living for himself and his family if returned to Sri Lanka.

1. Accordingly, there was no error by the Authority in failing to assess the applicant’s involvement in the fishing association and, insofar as there is claim advanced as the applicant’s ability to sustain himself, the Authority made an adverse finding that was open to the Authority for the reasons given by the Authority. The proposition that the Authority ignored conditions that may be imposed on the applicant is, in substance, an endeavour to engage in merits review and does not identify any jurisdictional error. There was no failure by the Authority to consider the applicant’s previous role in the fishing organisation. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, Mr Kumar submitted that the Authority had misunderstood the claim advanced in relation to the uncle being in the LTTE. Reference is made to paragraph 14 of the Authority’s reasons in which there is a reference to the uncle being arrested and disappearing in 1990 and a reference to new information that his uncle was involved in the LTTE.

2. The submissions provided to the Authority at page 284 of the Court Book assert that the applicant strongly believes that he would be perceived to be someone linked to the LTTE by virtue of his brother, sister and uncle’s involvement with the LTTE. There is no basis to find that the Authority misunderstood the applicant’s claims in considering whether the new information met the requirements under s 473DD of the Act. No error could be made out on the further basis that the new information was not accepted by the Authority. No jurisdictional error as alleged in ground 5 is made out.

Ground 7

1. In relation to ground 7, Mr Kumar properly acknowledged that that ground could not succeed if ground 1 failed. For the reasons already given, ground 1 cannot succeed and accordingly, no jurisdictional error is made out by ground 7.

Ground 8

1. In relation to ground 8, Mr Kumar submitted that there had been a failure to engage meaningfully with the applicant’s submissions in relation to the reporting conditions to which the applicant alleged he had been subject.

2. The Authority’s reasons, as summarised above, address in detail the applicant’s alleged weekly reporting requirements.

3. It is apparent from the Authority’s reasons in relation to the application of the Immigrants and Emigrants Act (Sri Lanka) that the Authority took into account the applicant’s profile, including the matters the subject of findings in paragraph 25 in respect of the reporting conditions. There is no substance in the contention that there was a failure by the Authority to have a real and meaningful engagement with the applicant’s claims and evidence in respect of the reporting conditions. Nor was there any failure by the Authority to take into account the applicant’s profile as found by the Authority in determining whether or not the applicant would face a real chance of serious harm or significant harm whilst detained upon the return to Sri Lanka given his illegal departure. Ground 8 is in substance an invitation to the Court to engage in merits review. No jurisdictional error is made out by ground 8.

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

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  22 May 2019