Cuz16 v Minister for Immigration

[2018] FCCA 3468

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUZ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3468

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to give genuine consideration to all of the applicant’s claims for protection – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: CUZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 443 of 2016

Judgment of: Judge Street

Hearing date: 27 November 2018

Date of Last Submission: 27 November 2018

Delivered at: Perth

Delivered on: 27 November 2018

REPRESENTATION

Counsel for the Applicant: Mr P Lochore

Solicitors for the Applicant: AUM Legal

Counsel for the Respondents: Mr P Macliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 29 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 443 of 2016

CUZ16

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 25 August 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 was found to be a Tamil born in Jaffna in the Northern Province of Sri Lanka. The applicant arrived in Australia on 25 April 2013.

3. The applicant claimed to fear harm on the basis he would be persecuted on account of his Tamil race, his imputed political opinion in respect of the United National Party (“UNP”) and the Liberation Tigers of Tamil Eelam (“LTTE”) and as a member of a particular social group of failed asylum seekers returning to Sri Lanka. On 13 July 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 14 July 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions.

5. The applicant did put on submissions, which were referred to in the Authority’s reasons. The Authority identified the background to the visa application and had regard to the information referred by the Secretary under s 473CB of the Act. The Authority identified that insofar as the submissions engaged with the delegate’s decision that the submissions do no constitute new information and had regard to the same. The Authority identified that there was included country information, which the Authority found did not meet the requirements of s 473DD of the Act.

6. The Authority summarised the applicant’s claims and evidence. The Authority found the applicant’s failure to make any mention of fear of harm as an imputed LTTE supporter following initial arrival in Australia, tends strongly to undermine the subjective element of the applicant’s fear in that regard. The Authority did not accept the applicant was questioned in 2012 regarding LTTE links.

7. The Authority found that the applicant’s family members did not contribute in a material way to the applicant facing a real chance of serious harm upon return to Sri Lanka now or in the reasonably foreseeable future. The Authority found the applicant’s wife had two brothers who had been involved in the LTTE, one whom died in 1993 and the other who has not been seen since 1998 and may be residing in India.

8. The Authority found the applicant departed lawfully from Sri Lanka, using his own passport to travel to India. The Authority referred to the fact that the applicant had an Australian criminal history. The Authority referred to the material before the Authority and in that regard described the same, as reflected in the primary decision, as indicating that on 3 December 2014, the applicant was convicted of assault with acts of indecency and was sentenced to 18 months good behaviour bond. The Authority found there was nothing in this history which would lead the applicant to face a real chance of serious harm upon return to Sri Lanka on this account.

9. The Authority referred to having regard to all of the evidence and having considered the applicant’s claims individually and cumulatively and found the applicant did not have a well-founded fear of persecution. The Authority found the applicant did not meet the definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria in s 36(2)(a) of the Act.

10. In considering complementary protection, the Authority referred to the adverse findings that had been made. The Authority also referred to having noted that whilst in Australia, the applicant was convicted of assault with acts of indecency and was sentenced to an 18-month good behaviour bond. The Authority observed that there is no basis for believing that the applicant’s Australian criminal history will in any way result in the applicant facing a serious risk of harm upon return to Sri Lanka on this account.

11. 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 did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The ground in the application is as follows:

   1. The Immigration Assessment Authority’s (IAA) decision was vitiated by jurisdictional error by a constructive failure to conduct the review required by s.473DB of the Migration Act 1958 (Cth), alternatively a failure to extend procedural fairness, by not considering the Applicant’s claim for protection founded upon the prospect of prosecution in Sri Lanka arising out of the same facts and circumstances as founded the Applicant’s 2014 conviction in N.S.W for indecent assault.

2. Mr Lochore, on behalf of the applicant, confirmed that grounds 2 and 3 are abandoned.

Ground 1

1. Mr Lochore took the Court to the delegate’s reasons in support of a submission that there was a claim that arose on the material before the Authority to the effect that the applicant feared harm by reason of his Australian criminal history. Mr Lochore in that regard referred to the delegate’s reasons, particularly at paragraphs 31 to 32. Those reasons refer to the delegate having considered the applicant’s Australian criminal history and referring to the sentencing that occurred and there being no information to suggest that the applicant is of interest to the Sri Lankan authorities on account of his Australian criminal history.

2. Reference was made to Sri Lanka’s Code of Criminal Procedure Act (1979) that a person will not be tried twice for the same offence and that there was no support for double jeopardy prosecution. The delegate referred to, based on country information, finding that the applicant does not have a real risk of significant harm on return to Sri Lanka on account of his Australian criminal history. Mr Lochore submitted that the material before the Authority, including the delegate’s reasons, thereby gave rise to there being a claim that the applicant fears harm based on his Australian criminal history.

3. The applicant, when he completed the application for the Safe Haven Enterprise visa, was asked as to whether he had been convicted of an offence. The applicant had ticked yes and referred to assault with the act of indecency T2 on 1 December 2014.

4. The applicant had also completed a form at the time of applying for the Safe Haven Enterprise visa in which, in question 4, there was a question relating to character, asking whether the person named in the question had been convicted of an offence in any country, and the applicant had ticked yes. Under the details in respect of the positive answer, there was first a reference to having pleaded guilty to assault with active indecency T2 in Bankstown Local Court NSW, released on good behaviour bond for 18 months. There was then a reference to an alleged conviction for ‘forced shooting training with LTTE’ with the words added:

   See attachment for more information on basic shooting training by LTTE.

5. In support of the application for the Safe Haven Enterprise visa, the applicant provided further information in relation to his history, involvement with the Criminal Investigation Department, past links with the LTTE, threats to his life, what will happen to him if he returns to his country, and, in that regard, the fear of interrogation referred to the alleged LTTE links, and no reference whatsoever was made to the applicant fearing harm by reason of his Australian criminal history.

6. The information before the Authority clearly included the delegate’s decision. It is apparent from the Authority’s reasons in relation to the Australian criminal history of the applicant, as well as in relation to the commencement of the Authority’s reasons, that the Authority took the delegate’s decision into account. That does not mean that a claim that the applicant feared harm on the basis of his Australian criminal history was advanced by the applicant, or clearly arose on the material before the Authority. I do not regard the consideration of the applicant’s criminal history, as engaged in by the delegate, as meaning that there was a claim by the applicant to fear harm that fairly arose on the material before the Authority.

7. Further, insofar as the applicant’s Australian criminal history was identified as an issue addressed in the delegate’s reasons, it is apparent that the Authority had a real and meaningful engagement in respect of that issue by reason of the analysis referred to in paragraphs 31 and 38 of the Authority’s reasons. The Authority engaged in a thoughtful deliberation in respect of that issue by reason of the reference to the content of what was reflected in the primary decision in respect of the applicant.

8. Insofar as that issue is concerned, Mr Lochore submitted that taking into account the requirement for reasons, that there should have been an express deliberation upon Sri Lankan law and country information to support the findings made by the Authority in relation to the applicant not facing a real chance of serious harm under the convention, and/or in relation to the reasoning in respect of not facing a risk of serious harm under complementary protection.

9. The circumstances in the present case are ones where the applicant, in the submissions advanced to the Authority, advanced no argument concerning a fear of harm in respect of his Australian criminal history. In those circumstances, there was no requirement or need for the Authority to descend into making findings of fact by reference to Sri Lankan law or country information. The Authority’s reasons, on their face, reflect a real and genuine consideration of the issue that was identified from the delegate’s reasons.

10. I do not regard that issue as reflecting a claim advanced by the applicant to fear harm by reason of his Australian criminal history and, in those circumstances, the Authority’s reasons, whilst brief and concise, adequately reflect a real engagement with the issue apparent on the face of the material before the Authority by reason of the disclosure of the criminal history and the application of the Safe Haven Enterprise visa, and the reference to the consideration of the same by the delegate. Notwithstanding the skilful and eloquent submissions of Mr Lochore, no jurisdictional error as alleged in ground 1 is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  1 February 2019