Cup16 v Minister for Immigration

[2020] FCCA 2366

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUP16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2366

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s findings were unreasonable and/or amounted to a failure to take into account a relevant matter – no jurisdictional error made out – amended application dismissed.  

Legislation:

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

Applicant: CUP16

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2651 of 2019

Judgment of: Judge Street

Hearing date: 26 August 2020

Date of Last Submission: 26 August 2020

Delivered at: Sydney

Delivered on: 26 August 2020

REPRESENTATION

Counsel for the Applicant: Mr G Foster

Solicitors for the Applicant: Sentil Solicitors

Solicitors for the Respondents: Ms A Wong, Mills Oakley

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 26 August 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2651 of 2019

CUP16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Pt 7AA of the Act made on 26 September 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa. 

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

3. The applicant claimed to be a young male Tamil from a particular location in Eastern Province, and his family were displaced in 1992 when he was an infant, and claimed that they lived in a refugee camp in India and returned to his home region in 1993. 

4. The applicant claimed that he stayed with a paternal uncle for one month when he was a teenager in 2006. 

5. The applicant claimed that he was interrogated on one occasion in 2010 and asked why he visited his uncle in 2006. The applicant alleged that he was again picked up in August 2011 and interrogated and was released. 

6. The applicant claims to fear harm because he would be targeted by the Criminal Investigation Department (“CID”) and the Sri Lankan Army (“SLA”) by reason of his ethnicity, his perceived association with the Liberation Tigers of Tamil Eelam (“LTTE”) because of his uncle, and being a young Tamil male from the East and for having an imputed political opinion as anti-government for seeking protection, and as a failed asylum-seeker who left Sri Lanka illegally. 

7. The applicant arrived in Australia as an unauthorised maritime arrival on 21 September 2012. The applicant applied for a Safe Haven Enterprise visa on 4 December 2015. On 22 July 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. A differently constituted Authority wrote to the applicant on 26 July 2016 identifying that the matter had been referred to that differently constituted Authority for review and providing the applicant with an opportunity to put on submissions and new information. 

8. The differently constituted Authority affirmed the Delegate’s decision on 5 September 2016.  The matter went on judicial review and ultimately, on 22 July 2019, the learned Farrell J allowed an appeal setting aside the orders made by the Federal Circuit Court on 20 October 2017 and remitting the matter to the Authority for determination according to law. 

9. The currently constituted Authority wrote to the applicant on 20 August 2019 explaining that the matter had been remitted to the Authority for reconsideration. 

10. The currently constituted Authority, in its decision dated 26 September 2019, identified the background to the Protection visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority identified the receipt of submissions from the applicant’s representative and had regard to the same insofar as they engaged with the Delegate’s decision, and also found that there were exceptional circumstances to justify taking into account a letter from the LTTE Police Services dated 2 May 1999 regarding the promotion of the applicant’s uncle. 

11. The Authority otherwise considered the other new information against the criteria under s 473DD of the Act and found that there were not exceptional circumstances to justify considering the same. The Authority’s reasons reflect taking into account the whole of the limbs of s 473DD of the Act in its deliberation in that regard. The Authority also took into account updated country information. 

12. The Authority summarised the applicant’s claims and accepted that the applicant visited his uncle in a particular province that was not the province from which the applicant came when he was 14 years old, and identified the applicant’s lack of knowledge of his uncle at the time of his application for a Protection visa, and that the applicant asked his uncle’s family to provide evidence of his uncle’s LTTE involvement and allegedly discovered that he had been a Chief Policeman in the LTTE. 

13. The Authority identified that the Sri Lankan civil war began in 1993 and ended in 2009 when the applicant was a young man, and that the applicant was not among those who were detained, which suggests that he was not considered by the authorities to have any association with the LTTE. 

14. The Authority referred to the applicant’s claim in relation to his imputed association because of being related to his uncle and because he visited his uncle in 2006. The Authority took into account that the applicant knew nothing of his uncle’s alleged prominent position when he visited his uncle in 2006 and that he was not sure that his uncle was in the LTTE until August 2016. 

15. The Authority made express reference to the United Nations High Commissioner for Refugees (‘UNHCR’) Eligibility Guidelines for Assessing the International Protection Needs of Asylum‑Seekers from Sri Lanka, dated December 2012, to the effect that persons who are closely related to persons who held senior positions in the LTTE civilian administration or closely related to former LTTE combatants and supporters may need protection. The Authority expressly footnoted the relevant reference. The Authority identified that it was not convinced on the information before the Authority that the applicant is “closely related”. The Authority in that regard referred to the applicant’s only contact with the uncle being the time he spent with him as a teenager in 2006, and that he had had no contact with his uncle after 2006 and lived in a different province. The Authority also took into account that there was no claim or evidence before the Authority to suggest that anyone in the uncle’s immediate family had been harmed because of the uncle’s role in the LTTE. 

16. The Authority considered the applicant’s claim, that he was of adverse interest for visiting his uncle in 2006, to be farfetched. The Authority identified the young age of the applicant at that stage and that, were the authorities interested in the applicant’s uncle, the Authority would have expected that they would have been questioning the uncle’s closer family members and friends and neighbours, not a nephew who had not seen him since 2006 and who lived in another province. The Authority also took into account that, were the Sri Lankan authorities looking to interrogate, detain and mistreat relatives of the uncle in order to find him or just because they were related to him, it is not logical that they would focus their attention only on the applicant. 

17. The Authority also referred to the treatment of the applicant in Sri Lanka as being inconsistent with the claim that he was of adverse interest to the Sri Lankan authorities. The Authority referred to the applicant having only been interrogated or questioned on two occasions and having been detained for about three hours only and then released. The Authority also took into account that the applicant did not claim to have been seriously mistreated, which suggested that he is not of adverse interest. 

18. The Authority referred to the applicant’s claims of hiding and that he remained in his home region at different relatives’ houses, and observed that the Sri Lankan authorities could have located him at his relatives’ houses if he were of interest to them. 

19. The Authority took into account that the applicant was not questioned again after August 2011, prior to leaving Sri Lanka in September 2012. The Authority also took into account that the applicant completed his high school and obtained a passport. The Authority found the ability to do both of those things indicated that the applicant was not in hiding and was not sought by the authorities and was not of adverse interest. 

20. The Authority referred to the applicant’s claim that Sri Lankan authorities have continued to look for him since he left Sri Lanka. The Authority took into account that the applicant had no knowledge of his uncle’s LTTE activities and no knowledge of his whereabouts, and that the applicant had had no personal association with the LTTE and was released after having been questioned. The Authority referred to the letter, which said that the applicant had been arrested on suspicion and was released, and found the letter and the lack of follow-up suggest that the Sri Lankan authorities’ inquiries were made and finalised. 

21. The Authority did not accept that the Sri Lankan authorities could not have found the applicant in his last year in Sri Lanka if he was of interest. The Authority did not accept that the Sri Lankan authorities continued to ask the applicant’s family or his cricket friends where he was. The Authority found this claim was an embellishment to strengthen the applicant’s claims for protection and did not accept it. 

22. The Authority accepted that the applicant had an uncle who was in the LTTE and took into account that the uncle may have been a chief policeman in the LTTE. The Authority did not, however, accept that the applicant was of adverse interest to the Sri Lankan authorities, including the CID and SLA, prior to leaving Sri Lanka. 

23. The Authority had regard to the relationship with the applicant’s uncle and did not accept it to be a close relationship, and, having regard to the lack of information that any other family members who were relatives have been targeted by Sri Lankan authorities for their relationship to the uncle, including the applicant’s immediate family, found the chance of the applicant facing harm for being related to his uncle to be too remote to amount to a real chance. 

24. The Authority referred to the applicant’s ethnicity and that he came from the East of Sri Lanka and found the chance of the applicant being harmed now or in the reasonably foreseeable future as a young Tamil male from the Eastern Province to be too remote to amount to a real chance. 

25. The Authority found that the applicant does not face a real chance of harm for reason of his ethnicity in his home region. 

26. The Authority found that the applicant’s fear of persecution and being processed as a returnee who departed illegally is not well-founded. 

27. The Authority found that the applicant does not have a real chance of harm as a returning failed asylum-seeker, and the Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

28. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

Before the Court

1. The ground in the amended application is as follows: 

   1.The 1AA erred when it did not accept the applicant's uncle was a close relative of the applicant (paragraph 26). [CB176]

   Particulars

   The IAA referred to UNHCR 2012 Report (21) [CB174] and noted it identified that persons who are closely related to persons who held senior positions in the LTEE civilian administration or closely related to former LTTE combatants or supporters may need protection.

   The IAA accepted the applicant has an uncle who was in the LTTE, who may have been a ‘Chief Policeman’ in the LTTE. (26) [CB176]

   When considering if the applicant’s uncle was a close relative of the applicant, the IAA considered matters including the applicant’s only contact with the uncle was the time he spent with his uncle and aunt in 2006; that he had no contact with this uncle after 2006; and that he lived in a different province to his uncle. (21) [CB174]

   The IAA accordingly did not view the blood relationship of uncle/nephew bore upon the question of ‘close relative’, being unreasonable and/or amounting to a failure to take into account a relevant matter thereby amounting to jurisdictional error.

2. Mr Foster, counsel on behalf of the applicant, maintained that the Authority had misunderstood the UNHCR country information in its reference to “closely related”, and that the meaning in that regard was one of blood relationship, and that the Authority, in failing to find that blood relationship of the uncle means the uncle was a close relative, was legally unreasonable and reflected jurisdictional error. 

3. The Authority’s reasons are not to be read with a keen eye for error. It is apparent that the Authority appreciated and took into account the content of the UNHCR report referring to blood relations and clearly identified the person that the applicant stayed with in 2006 and who was represented as being the applicant’s uncle. 

4. The Court does not accept that the Authority misunderstood or misconstrued the country information, and finds that it was open to the Authority to take into account the limited nature of the relationship between the applicant and the uncle and the different locations where they lived and the other matters to which the Authority referred in determining whether or not the applicant faced a real chance or real risk of significant harm or serious harm. 

5. The Authority’s reasoning in respect of the applicant not facing a real chance or real risk of serious harm or significant harm cannot be said to lack an evident and intelligible justification. That evident and intelligible justification has been summarised above in relation to the limited knowledge of the applicant in relation to the uncle, the limited time of stay at a young age in a different province to where the applicant lived, the absence of steps taken in relation to the applicant’s immediate family, and the absence of ongoing adverse interest by the Sri Lankan authorities after the applicant was released in 2011. 

6. The Authority’s adverse finding was not legally unreasonable. The substance of the argument is, in reality, one inviting the Court to engage in impermissible merits review. 

7. No jurisdictional error as alleged in ground 1 is made out.

8. As the amended application fails to make out a jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 26 August 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 13 November 2020