CTD17 v Minister for Immigration

[2018] FCCA 1548

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1548

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant: CTD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1951 of 2017

Judgment of: Judge Driver

Hearing date: 13 June 2018

Delivered at: Sydney

Delivered on: 13 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J McGovern of Clayton Utz

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1951 of 2017

CTD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and Background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 31 May 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minster’s outline of submissions filed on 6 June 2018. 

3. The applicant, who is a Sri Lankan national, arrived in Australia on 21 September 2012 as an unauthorised maritime arrival.[1]  On 11 February 2016, he lodged an application for a SHEV.[2]

   [1] Court Book (CB) 98.

   [2] A Safe Haven Enterprise Visa, see CB 23-66.

4. On 2 November 2016, the delegate refused to grant the SHEV.[3]  On 31 May 2017, the Authority affirmed the delegate’s decision.[4]

   [3] CB 95-111.

   [4] CB 117-132.

5. On 22 June 2017, the applicant commenced the present proceedings.

Applicant's protection claims

1. The applicant claims to fear harm on the basis of his Tamil ethnicity, his former position as a successful Tamil businessman, and as a failed returned Tamil asylum-seeker.[5]  In particular, he claims to fear harm because he operated a successful tailoring business in Sri Lanka which serviced the Liberation Tigers of Tamil Eelam (LTTE).[6]  He also claims that he was the victim of extortion by groups connected with the Sri Lankan authorities.[7]

   [5] Authority decision record (DR) [5].

   [6] Ibid.

   [7] Ibid.

Authority findings and decision

1. The Authority noted that it had obtained new information from the most recent DFAT country report for Sri Lanka published 24 January 2017 (which post-dated the delegate's decision), and was satisfied that there were exceptional circumstances to justify considering it.[8]

   [8] DR [4].

2. The Authority accepted the applicant's core claims that he was a Tamil who operated a tailoring business and provided tailoring services to the LTTE.[9]  The Authority also accepted that the applicant lived near an army camp and that he was subject to regular “round ups” by the Sri Lankan Army and paramilitary groups.[10]  However, the Authority noted that the applicant gave inconsistent accounts of his claimed harm by army soldiers and Sri Lankan authorities.  Based on those inconsistencies, the Authority did not accept the applicant’s claims that he was harassed and extorted by soldiers and paramilitary groups.[11]

   [9] DR [7].

   [10] DR [8].

   [11] DR [12].

3. Although the Authority accepted that the applicant had experienced some harm in the past, it noted that country information did not support a finding that there will be a real risk or a real chance of harm in the foreseeable future.[12] 

   [12] DR [37].

4. Further, based upon available country information, the Authority did not accept that the applicant faced a real risk of the relevant harm as a failed asylum seeker who departed Sri Lanka illegally.  It noted that the applicant may be briefly detained in poor conditions and face a fine, but the Authority found this would be pursuant to a non-discriminatory law of general application and did not constitute persecution or significant harm.[13]

   [13] DR [35], [43].

5. Ultimately, on the basis of the evidence before it (and having considered the applicant's claims individually and cumulatively), the Authority was not satisfied that there was a real chance that the applicant would face serious harm if he returned to Sri Lanka,[14] nor that there was a real risk he would suffer significant harm in terms of the complementary protection criterion.[15]

   [14] DR [37]-[38].

   [15] DR [45].

6. Accordingly, the Tribunal did not accept that the applicant was a person to whom protection obligations were owed.

The present proceedings

1. These proceedings began with a show cause application filed on 22 June 2017.  The applicant continues to rely upon that application.  There are six grounds in it:

   1.IAA made a jurisdictional Error;

   2.These are the relevant factors, which IAA and the Dept of Immigration and Border protection did not take into consideration

   3.They not even take into consideration , Applicant family had lengthy involvement with karuna cadres

   4.His wife frequently harassed and torched by SriLankan Arm forces.

   5.IAA did not consider he was previously assaulted and his brother was beaten to death by SriLankan Arm forces.

   6.His children unable go to school because of Karuna Cadre harassements.

   (errors in original)

2. The application is supported by a short affidavit by the applicant filed with it which I received. 

3. I also have before me as evidence the court book filed on 12 June 2017.  Only the Minister prepared written submissions in advance of today’s hearing. 

4. I invited oral submissions from the applicant this afternoon.  He told me that he had a good life in Sri Lanka but that the Karuna group caused him problems.  I asked him what he thought was wrong with the Authority decision.  He told me that he could not say anything was wrong with the decision, but he is very anxious about the prospect of having to return to Sri Lanka and is having difficulty sleeping.  In his submissions in reply the applicant reiterated that he cannot go back to Sri Lanka.  Those submissions go to the merits of the Authority decision, which are beyond the scope of this proceeding. 

5. I have considered whether any of the applicant’s grounds of review could point to a jurisdictional error.  The applicant asserts that some elements or integers of his claims were overlooked by the Authority.  In particular the applicant asserts that his brother was beaten to death by the Sri Lankan armed forces.

6. The Authority’s reasons are silent about that assertion, which raised a question whether the Authority had overlooked a claim based on the applicant’s relationship with members of his family.  The solicitor for the Minister took me through the court book and submitted that no such claim was ever made by the applicant before the Minister’s Department or the Authority.  Rather than the applicant claiming a fear of harm because of his connection to other family members, he asserted that certain family members suffered difficulties because of his problems.  The only references in the claims to the applicant’s brother appears to have been as an identifier of places where the applicant took refuge. 

7. I otherwise agree with the Minister’s submissions concerning the grounds of review. 

8. A failure to consider a relevant consideration will only constitute jurisdictional error if the proper construction of the statute indicates that the decision-maker was required to consider the relevant matter in making the decision.[16]  Similarly, consideration of an "irrelevant" consideration will only constitute jurisdictional error where, on the proper construction of the statute, the decision-maker was prohibited from considering the relevant matter.[17]  In either case, relief will only be granted if the error was capable of materially affecting the decision.[18]

   [16] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42.

   [17] Peko-Wallsend Ltd, 39-42.

   [18] Peko-Wallsend Ltd, 39-42.

9. Contrary to the applicant’s assertion, the Authority did consider the applicant's claim that the Karuna group extorted him for money and “stopped his daughter and scared and threatened her by asking about his whereabouts.”  However, it rejected this claim.[19]

   [19] DR [13].

10. Further, the applicant made no claim to the delegate or the Authority that his wife was “frequently harassed” by the Sri Lankan Army.  In his statutory declaration dated 7 September 2013, the applicant said that his wife “assisted [him] with the business”;[20] that he “asked [his] wife to deliver the wedding gown that [he] had been working on”;[21] and that “[his] wife speaks limited Singhalese” but she was visited by a Sri Lankan Army officer and understood that the officer was looking for the applicant.  To the extent that the wife's interaction with the Army officer raised a factual claim, it was addressed and rejected by the Authority.[22]

    [20] CB 61 (statutory declaration at [11]).

    [21] CB 62 - 63 (statutory declaration at [26]).

    [22] DR [13].

11. The applicant's contention that the Authority did not consider his claim that he was previously assaulted and that his brother was “beaten to death” is also misconceived.  The Authority accepted that from 1995 to 1999 the applicant “was beaten” during "round-up exercises" conducted by the army and paramilitary groups.[23]  However, it rejected his protection claims on the basis that there had “been a significant change in the country circumstances since the end of the war”, and that there was not a real chance the applicant would face harm if returned to Sri Lanka on the basis of the evidence before it.[24]

    [23] DR [8].

    [24] DR [19].

12. Additionally, the applicant did not claim his brother was beaten to death in his entry interview, his SHEV application or his protection visa interview.  A submission written by a Minister of the Uniting Church on behalf of the applicant (dated 30 August 2016) stated that the applicant's “mother, sister and brother had been threatened because of him”.[25]  The Authority expressly considered this material in the context of the applicant's claims and recorded that the applicant claimed that he hid for a period at his brother's home.[26]

    [25] CB 80-81.

    [26] DR [5], [11].

13. The applicant's final assertion that the Authority did not consider his claim that his children cannot attend school because of harassment by paramilitary groups is also without basis.  The submission from the Uniting Church Minister stated that: “[the applicant] says at his age he should be there for the family with three young children, 20 year old daughter, 12 year old son and 7 year old daughter to protect and provide for with his then growing tailoring business, but is unable to go back.” There was no claim that the applicant feared harm because his children could not attend school.

14. The Authority was not required to consider claims that were not raised either expressly or squarely on the facts. On the contrary, the Authority engaged with the claims raised by the applicant and ultimately found that he had not established a claim for protection under s.36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth).

15. The Authority’s findings were reasonably open to it, for the reasons it gave.  The applicant’s disagreement with the findings in such circumstances seeks to engage in merits review and is not the source of any jurisdictional error.

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606.  The applicant told me that he is not presently able to meet that cost burden, but he anticipates receiving funds from a company liquidation after July.  I will not require payments of the costs by any particular time.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     14 June 2018