Cui16 v Minister for Immigration

[2018] FCCA 2338

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUI16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2338

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider a relevant issue – whether the Authority took irrelevant considerations into account – whether the Authority’s decision was unreasonable – no jurisdictional error made out – further amended application dismissed.

Legislation:

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

Applicant: CUI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 441 of 2016

Judgment of: Judge Street

Hearing date: 22 August 2018

Date of Last Submission: 22 August 2018

Delivered at: Sydney

Delivered on: 22 August 2018

REPRESENTATION

Solicitors for the Applicant: Mr E Rajadurai
Divine Lawyers

Solicitors for the Respondents: Ms M Perotti
Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the further amended application filed 30 July 2018.

2. The further amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 441 of 2016

CUI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 12 September 2016 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 arrived in Australia on 17 August 2012. The applicant applied for a Safe Haven Enterprise visa on 17 August 2015.

3. The applicant claimed to fear harm from the Criminal Investigation Department (“CID”) of the Sri Lankan police by reason of being a young Tamil male from the North. The applicant claimed to fear harm by reason of his illegal departure from Sri Lanka and being a failed asylum seeker.

4. The applicant alleged that an incident occurred in 2011 involving the CID visiting his home in April or May and that he was detained and released the following morning after signing a letter that he was not allowed to leave the country and placed on reporting conditions. The delegate accepted the applicant’s accounts of the incidents advanced but did not accept that he or members of his family are of ongoing concern to Sri Lankan authorities due to their profiles. The delegate was not satisfied the applicant would be subject to any ramifications on return as a result of his race and imputed political association with the Liberation Tigers of Tamil Eelam (“LTTE”).

5. The delegate was also not satisfied that the account the applicant gave in relation to his continued fear of harm in relation to visits by the CID, which he claimed to have occurred, was credible. The delegate found it was not plausible the CID would continue to have an interest in the applicant and/or his family such that they would continue to make visits to see the applicant after he departed Sri Lanka. The delegate found the applicant’s claims in relation to continued ongoing fear of the harm from the CID are not credible and did not accept them.

6. On 21 July 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. On 1 August 2016, the Authority wrote to the applicant explaining that the application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided the applicant with an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information. Notwithstanding the opportunity given by the letter, no further information was provided to the Authority by the applicant.

2. The Authority in its reasons identified the background for the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims and relevantly referred to the applicant in that regard fearing harm from the CID of the Sri Lankan Police Service and fearing being suspected as a young Tamil male that he will join or build a new LTTE. The Authority also referred to the applicant’s alleged incident in April or May 2011.

3. The Authority identified the relevant law. The Authority expressly accepted that the applicant originates from an area previously controlled by the LTTE. The Authority did not, however, accept as credible the applicant’s claim that simply because of his Tamil ethnicity, the Sri Lankan authorities will impute him as having LTTE links or sympathies. The Authority referred to the LTTE controlled areas and to country information that residing in an area previously controlled by the LTTE does not of itself result in a need for international protection. That country information referred to people with actual or perceived profiles being at risk, which was referred to in the reasons of the Authority. The Authority summarised the categories of those persons expressly in its reasons. The Authority then referred to low profile former members of the LTTE.

4. The Authority found the applicant had not claimed to have engaged in any Tamil separatist activity in Sri Lanka and, on the evidence before the Authority, found that there is no indication the applicant has any real or imputed links to the LTTE such that his profile would fall within any of the categories of persons of interest summarised by the Authority in its reasons. The Authority found, given the lack of profile and the applicant being a Tamil from a previously controlled LTTE area, that the Authority did not accept as plausible the applicant’s claims that in 2011 he was detained and assaulted, and that his mother was detained and that his family was threatened, or that the CID is still searching for him.

5. The Authority did not accept as credible, the applicant’s claims that due to their Tamil ethnicity, several of his friends have been detained by the CID and tortured on suspicion of LTTE links. The Authority referred to the applicant not having claimed that any of his friends supported or engaged in Tamil separatist activity, or provided information to indicate that they had any real or imputed links to the LTTE to the extent that they would fall within the categories of interest summarised by the Authority in its reasons.

6. The Authority, taking into account the available evidence and country information, found the applicant will not be considered to have any actual or perceived links to the LTTE on return to Sri Lanka. The Authority was satisfied the applicant will not face a real chance of persecution from Sri Lankan authorities, including the CID, on return to Sri Lanka.

7. The Authority referred to the applicant’s claimed fear of harm due to his Tamil race and was not satisfied the applicant will face a real chance of serious harm on the basis of being a Tamil. The Authority referred to country information, including country information concerning Tamils from the north and east. The Authority found as not credible the applicant’s claims that his family had been threatened by the CID or that CID officers continued to visit his family home in search of him.

8. The Authority found that there was no indication the applicant has engaged in any political or separatist activity in Sri Lanka. The Authority was not satisfied the applicant will be considered to have any real or imputed profile that would attract attention of Sri Lankan authorities. The Authority was not satisfied the applicant will face a real chance of persecution from Sri Lankan authorities due to his race on return to Sri Lanka now or in the reasonably foreseeable future.

9. The Authority did turn to consider the applicant’s illegal departure from Sri Lanka and being a failed asylum seeker. The Authority found a brief period of detention does not rise to the level of threat to the applicant’s life or liberty, or to significant physical harassment or ill‑treatment, or any other form of serious harm for the applicant. The Authority was satisfied that payment of a fine, being held in detention for a short period and questioning, cumulatively, does not amount to serious harm. The Authority found the Immigrants and Emigrants Act 1948 (Sri Lanka) is a law that applies to all Sri Lankans and that the treatment the applicant will face as a consequence of the application of the Immigrants and Emigrants Act 1948 (Sri Lanka) is not persecution within the meaning of the Act.

10. The Authority referred to country information in relation to the post-arrival monitoring and taking into account country information, found that relates to those who hold actual or imputed connection to the LTTE. The Authority was not satisfied the applicant has any real or perceived connection to the LTTE. The Authority did not accept the applicant would be imputed with separatist or anti‑government dissident beliefs by the authorities because of his extended residence in a western country or imputed asylum seeking, either individually or cumulatively. The Authority found the applicant does not face a real chance of persecution from Sri Lankan authorities either as a failed asylum seeker or as a returnee from the West, or for any other reason.

11. Having considered the applicant’s claims individually and cumulatively, the Authority found the applicant does not have a well‑founded fear of persecution. The Authority found the applicant failed to meet the definition of “refugee” in s 5H(1) of the Act and found that the applicant does not meet the criteria in s 36(2)(a) of the Act.

12. 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 will suffer significant harm. The Authority found the applicant does not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision of the review.

Before this Court

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

   Ground One

   1. Authority made a jurisdictional error as it did not consider a relevant issue.

   Particulars

   Authority did not consider the case on the basis that Applicant claimed that he was a young Tamil from the north of Sri Lanka. Had it considered the case on that basis, it would have accepted the incidents claimed by the Applicant.

   Ground Two

   2. Authority took an irrelevant consideration into account and fell into a jurisdictional error.

   Particulars

   There was some requirement on the part of the Authority that Applicant must have engaged in LTTE activities to be persecuted, and this was an irrelevant consideration.

   Ground Three

   3. Authority made a jurisdictional error as it did not consider a relevant issue.

   Particulars

   Authority did not consider the warning by the army that the Applicant does not leave the country and be on reporting condition. This was a claim implicit in Applicant’s case which the Authority failed to deal with. .

   Ground Four

   4. Authority’s decision is unreasonable.

   Particulars

   Authority did not call Applicant for a hearing. It disbelieved what the Delegate believed and therefore the decision of the Authority is unreasonable.

   5. Delegate stated at CB 204: at 47 I accept applicant fears harm on return to Sri Lankan for the following reasons:

   Race- Tamil

   Political opinion (imputed )- member of LTTE

   Political opinion (imputed) – unauthorized departure from Sri Lanka and seeking asylum in Australia

Ground 1

1. Mr Rajadurai solicitor on behalf of the applicant, in support of ground 1, identified the applicant being a male young Tamil from the North and the fear of harm arising from the risk of both actual and perceived links to the LTTE as well as the applicant’s ethnicity. Mr Rajadurai drew the Court’s attention to the applicant’s claims in his statutory declaration and, in particular paragraph 123, referring to fear of harm including abduction, torture and murder at the hands of the CID, including on the basis of his Tamil ethnicity. Mr Rajadurai submitted that the Authority had failed to address an integer of the applicant’s claims being a young Tamil male from the North.

2. The Authority’s reasons are not to be read with a keen eye for error. Further, the Authority’s reasons must be read as a whole. The Authority’s reasons expressly refer to the applicant being a young Tamil man and the Authority’s reasons expressly refer to the applicant coming from an area previously controlled by the LTTE. The Authority’s adverse findings in relation to the applicant being imputed as an LTTE supporter, and in relation to the applicant’s claims by reason of being a Tamil, clearly subsumed the applicant’s personal circumstances of being a male who is young and from the North. The Authority’s reasons expressly refer to those facts.

3. The findings of the Authority were dispositive of the applicant’s claims. There was no failure by the Authority to address an integer of the applicant’s claims as advanced in ground 1 and no jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Rajadurai submitted that the Authority had fallen into error by taking into account an irrelevant consideration to the effect that the Authority had assumed that there must have been an engagement in LTTE activities to give rise to a well‑founded fear of harm. Mr Rajadurai took the Court to the Authority’s reasons, particularly at paragraphs 11 and 17, as well as referring to the applicant’s claims in his statutory declaration. Mr Rajadurai submitted that there is no need for the applicant to have engaged in LTTE activities in the past to be imputed with LTTE support and submitted that the Authority had made such an erroneous assumption.

2. The Authority’s reasons are not to be read with a keen eye for error. No such erroneous assumption was made by the Authority in the Authority’s reasons. The Authority’s reasons expressly refer to imputed links as well as real links. The Authority’s reasons do not support the contention that the Authority confined itself to an assumption that the applicant must have engaged in LTTE activities in order to be imputed with an LTTE link. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Rajadurai took the Court to the applicant’s statutory declaration and the applicant’s claims in relation to signing a letter and being told he was not allowed to leave the country and having to report every three months. Mr Rajadurai submitted this was a relevant issue that the Authority had failed to consider in its review.

2. The Authority’s reasons expressly refer in paragraph 11 to not accepting as plausible the applicant’s claims as to what occurred in 2011. This was a finding dispositive of the applicant’s claim that was open to the Authority. Accordingly, there was no failure by the Authority to consider a relevant issue as alleged in ground 3. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Rajadurai submitted that the Authority made findings that were legally unreasonable by reason of the failure to expressly consider the exercise of their power under s 473DC of the Act before departing from the findings of the delegate in relation to the matters upon which the Authority did not accept the applicant.

2. The Authority did not accept the applicant’s claims in relation to the 2011 incident, nor in relation to the applicant’s claims concerning continued visits involving his family. The delegate also did not accept the applicant’s claims relating to continued visits on his family and, notwithstanding accepting the applicant’s claims in part, the delegate found the applicant did not have a well‑founded fear of persecution. The applicant was given an opportunity to put on new information and submissions as identified by the letter dated 1 August 2016 referred to above. The applicant did not do so.

3. It is necessary, in relation to ground 4, to take into account the source of the statutory power giving rise to the findings made by the Authority in Part 7AA of the Act. That statutory scheme, subject to the provisions within Part 7AA of the Act, is one in which the Authority must review the material without accepting or requesting new information and without interviewing the referred applicant. Section 473EA of the Act provides for the Authority to make a written statement setting out the decisions on the review and its reasons for the decision.

4. Given the adverse findings by the delegate, notwithstanding the acceptance of the 2011 incident and the sending by the Authority of the letter of 1 August 2016, the Authority’s failure to expressly consider exercising the powers under s 473DC of the Act cannot be said to lack an evident and intelligent justification. The Authority was not bound by the findings made by the delegate. The applicant had an opportunity to put on new information and submissions and did not do so. In these circumstances, there is no legally unreasonable exercise of statutory power by the Authority in failing to expressly consider exercise of its powers under s 473DC of the Act.

5. The Authority gave reasons in support of the adverse finding in paragraph 11, being the lack of profile of the applicant in terms of the fact finding. Accordingly, the adverse fact finding cannot be said to lack an evident and intelligible justification and there is no legal unreasonableness in the exercise of a fact finding power insofar as raised by ground 4.

6. Further, in that regard, the Authority took into account the lack of profile of the applicant in rejecting the applicant’s claims relating to ongoing interest of the CID in his family. That adverse factual finding by the Authority cannot be said to lack an evident and intelligible justification and does not reflect any legal unreasonableness in the exercise of its fact finding power. No jurisdictional error as alleged in ground 4 is made out.

Conclusion

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

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 October 2018