Cve18 v Minister for Home Affairs

[2019] FCCA 1695

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVE18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1695

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority considered all of the evidence and took into account relevant considerations – whether the Authority’s decision was affected by bias – whether the Authority’s adverse findings lack an evident and intelligible justification – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Migration Regulations 1994 (Cth), r 1.12

Applicant: CVE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 574 of 2018

Judgment of: Judge Street

Hearing date: 19 June 2019

Date of Last Submission: 19 June 2019

Delivered at: Perth

Delivered on: 19 June 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr T Lettenmaier
Sparke Helmore

ORDERS

1. The oral application for an adjournment and the application in a case filed 14 June 2019 is dismissed.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDERS: 19 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 574 of 2018

CVE18

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 4 October 2018 affirming the decision of a 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 from Batticaloa, Eastern Province, Sri Lanka. On 18 September 2012, the applicant arrived in Australia as an unauthorised maritime arrival. The applicant arrived on a boat with both his wife and child. On 30 December 2015, the applicant’s application for a Safe Haven Enterprise visa was received by the Department.

3. The applicant, in summary, claimed to fear harm on return to Sri Lanka because of his Tamil ethnicity, his involvement with a paramilitary group and that he will be imputed as a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant claimed to fear harm on return to Sri Lanka by the Karuna group. The applicant also claimed to fear harm by members of the Pillayan group as he has information about their past criminal activities. The applicant also claims to fear harm from the authorities and is concerned about reports of returned asylum seekers being intimidated, harassed and tortured on return to Sri Lanka. The applicant also claims to suffer from nightmares and flashbacks. The applicant claimed he will be imputed as an LTTE supporter because of his cousin’s past involvement with the LTTE. The applicant also claimed to fear persecution on the basis of an imputed political opinion as a supporter of the Pillayan group and an imputed LTTE supported profile stemming from his ethnicity, familial link to the LTTE, residing in an LTTE-controlled area, residing for a significant period in a country with a Tamil diaspora and his status as a failed asylum seeker.

4. On 20 March 2018, a delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The delegate referred to conducting a protection visa interview with the applicant on 20 February 2018, at which the applicant provided a new set of claims that were not before the Department and which diverged significantly from the original claims the applicant made at his entry interview and from the official statement of claims the applicant submitted in support of his Safe Haven Enterprise visa application.

5. The delegate found that the applicant’s claims were not credible and that he had likely fabricated them to bolster his chances of obtaining a protection visa. The delegate did not accept that the applicant was of any interest to the authorities after the war’s end in 2009, as he has never been to a rehabilitation centre and no evidence has come to light that either the applicant or other members of his family have been targeted for such a reason. The delegate also found that the applicant had not been involved in work related activities providing him with special access to Tamil Makkal Viduthalai Pulikal party (“TMVP”) secured areas. The delegate also did not accept that the applicant fled Sri Lanka because he had aided in an assassination attempt.

6. The delegate found that the applicant being a Tamil in Sri Lanka is not a reason for the applicant to be imputed with an LTTE connection and was satisfied that the applicant does not have a well-founded fear of persecution on that basis. The delegate also found that the applicant does not have a well-founded fear of persecution as a failed asylum-seeker who departed Sri Lanka illegally. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.

7. On 29 March 2018, a differently constituted Authority wrote to the applicant, giving the applicant an opportunity to put on new information and submissions. The applicant’s then legal representative on behalf of the applicant put on new information and submissions dated 19 April 2019. On 3 May 2018, a differently constituted Authority affirmed the delegate’s decision. On 30 August 2018, by orders of this Court by consent, that decision was quashed and the matter was remitted to the Authority for reconsideration and determination according to law.

8. By letter dated 7 September 2018, the applicant was informed of the matter having been remitted to the Authority. The applicant’s then legal representative withdrew from the proceedings.

9. The Authority, in its reasons, identified the background to the applicant’s Safe Haven Enterprise visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act. The Authority referred to the fact that, at the time the application was received on 30 December 2015, the application included the applicant’s wife and child. The Authority also referred to the fact that, on 1 December 2016, a representative acting for the applicant’s wife and child advised the Department that their clients would like their applications to be considered separately as the couple had separated. In June 2017, a withdrawal of visa application form for the applicant’s wife and child was lodged.

10. The Authority referred to the submissions and new information which were provided by the applicant following the delegate’s decision. The Authority rejected the new information on the grounds of an apparent lack of probative value. The Authority was not satisfied that there were exceptional circumstances to justify considering the new information. The Authority’s reasons in this regard reflect the Authority taking into account both limbs of s 473DD of the Act. There is no basis for the Court to infer that there was any erroneously narrow meaning or misconstruction of s 473DD of the Act or the requirement in respect of exceptional circumstances.

11. The Authority summarised the applicant’s claims for protection. The Authority found that the applicant would have disclosed the claim that he was an informant for the Pillayan group, if true, in his protection visa application. The Authority also referred to the applicant’s delay in disclosing claims. The Authority was not satisfied that the applicant acted as an informant for the Pillayan group. The Authority did not accept that the applicant was abducted and tortured by members of the Karuna group in 2013, or that they came to his family home and harassed his mother and wife, or that they visited regularly, or at all, after the applicant left Sri Lanka.

12. The Authority referred to having concerns in respect of the applicant’s account that, in April of 2017, Colonel Karuna, members of the TMVP, Special Taskforce (“STF”) and the army attended the applicant’s family home, demanded evidence of his identity and that the family vacate the property, and assaulted the applicant’s brother. The Authority found it far-fetched that Colonel Karuna himself would have made such a visit. The Authority also referred to a hospital statement in respect of injuries allegedly sustained by the applicant’s brother. The Authority accepted that the applicant’s brother sustained an injury from an assault in 2017 but not in the circumstances asserted by the applicant. The Authority did not accept the applicant’s account that the assault of the applicant’s brother occurred when the TMVP, Colonel Karuna and others came to his family home to ask for identity documents for the applicant and then demanded his mother vacate the family property, or that the alleged assault of his brother related to the applicant.

13. The Authority did not accept that the applicant worked as an informant for the Pillayan group, gave information that resulted in the assassination of two members of the Karuna group, gave information about army officers or ex-LTTE fighters which resulted in their deaths, was involved in the theft of weapons from soldiers at a hair salon or provided other information gathered from visiting army bases, the STF, or other official places. The Authority did not accept that the applicant had any association with the TMVP. The Authority also did not accept that the applicant had any association with the Pillayan group or that the applicant attended Pillayan’s birthday celebrations. The Authority also did not accept that the applicant developed relationships with any Karuna group members or was abducted and tortured by the Karuna group. The Authority found that the applicant fabricated these claims in an attempt to enhance his protection claims.

14. The Authority did not accept that the applicant had been detained and tortured as claimed. Therefore, the Authority did not accept the applicant’s assertions in respect of nightmares and disturbances due to being a torture survivor.

15. The Authority accepted that the applicant departed Sri Lanka illegally. The Authority took into account that the applicant is a young Tamil male from a former LTTE controlled area and that his cousin was an LTTE member. The Authority also referred to country information in that regard. The Authority, however, was not satisfied that there was a real chance the applicant would face harm on this basis on return to Sri Lanka.

16. The Authority did not accept that the applicant’s residence in a country with a Tamil diaspora would give rise to a profile of concern. The Authority noted that there is no indication the applicant has been involved in diaspora or Tamil separatist activities. The Authority did not accept that the applicant would be perceived as an LTTE activist or Tamil separatist supporter on return to Sri Lanka.

17. The Authority found the likelihood of the persecution of Tamils increasing exponentially because of local government election results and the possibility of Mr Rajapaksa becoming president in the future to be speculative. The Authority was not satisfied that this gives rise to a well-founded fear of persecution.

18. The Authority referred to the applicant, by reason of his illegal departure, facing a brief period in detention. The Authority did not consider that a brief period in detention would constitute such a level of threat to the applicant’s liberty as to amount to serious harm, significant physical harassment or ill-treatment, or otherwise amount to serious harm within s 5J(5) of the Act. The Authority did not accept that any likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed and/or the imposition of a fine, combined with a brief period of detention, would constitute serious harm.

19. The Authority found that the Immigrants and Emigrants Act 1949 (Sri Lanka) is not discriminatory in its terms and is not applied in a discriminatory manner. The Authority also found that the investigation, prosecution and any punishment of the applicant under the Immigrants and Emigrants Act 1949 (Sri Lanka) would be the result of a non-discriminatory application of a generally applicable law and does not amount to persecution within the meaning of ss 5H(1) or 5J(1) of the Act.

20. The Authority referred to having considered the applicant’s claims on the basis of him being a young Tamil male, having a familial link to the LTTE, being from a former LTTE controlled area, his family’s wealth, his illegal departure from Sri Lanka and being a returned failed asylum seeker and the Authority was not satisfied that there is a real chance the applicant will suffer harm in the foreseeable future in Sri Lanka.

21. The Authority found that the applicant does 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.

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

Before the Court

1. At the commencement of the proceedings, the applicant raised that he had filed an application for an adjournment supported by an affidavit from his solicitor. The applicant’s legal representative had withdrawn from the proceedings. The applicant asked for an adjournment and for the appointment of a lawyer to represent him. It is not the function of this Court to appoint a lawyer to represent the applicant. The fact that the applicant does not have a legal representative is not a basis upon which an adjournment should be granted.

2. On 2 November 2018, these proceedings were commenced by the applicant. At that time, the applicant was legally represented. The applicant’s legal representative withdrew in circumstances where they informed the Court they were of the view that there was no proper arguable ground they could advance consistent with their ethical duties. These are not circumstances which give rise to a reason why an adjournment should be granted. The applicant has had a reasonable opportunity to obtain legal representation. The fact that the applicant’s legal representative has withdrawn because there is no arguable case that they can identify is not a basis upon which an adjournment should be granted.

3. Given the time of commencement of these proceedings and the orders which have been made by the Court, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. The Court also notes that the first respondent did not consent to the adjournment. For these reasons, the adjournment application is refused.

4. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. From the bar table, the applicant indicated that his wife and child had been granted a protection visa. The applicant also indicated that he had come with his wife and child on a boat from Sri Lanka. The applicant maintained that he could not go back to Sri Lanka.

6. On the face of the material before the Court, the Authority took into account that the applicant had separated from his wife. The applicant was no longer the spouse within the meaning of s 5F of the Act and, accordingly, not a member of the family unit. Whilst the applicant may have been the spouse at an earlier time, there is no evidence to support the applicant having been the spouse at the time of the determination of his application for a Safe Haven Enterprise visa by the Authority. In those circumstances, the Authority was correct in not taking any steps to ascertain the state of any visa application by the applicant’s wife and child. The fact that the applicant’s wife and child were pursuing a separate application is not conduct by reason of which it could be said that the Authority should have exercised or expressly considered the exercise of the discretionary power under s 473DC of the Act to obtain other material or invite the applicant to participate in an interview.

7. On the material before the Court, the applicant had been given an opportunity to put on new information and submissions following the delegate’s decision. It is also apparent that a further opportunity was given to the applicant to put on new information and submissions after notice of remittal of the matter to the Authority was given to the applicant’s then legal representative. The fact that the applicant’s legal representative withdrew without putting on further submissions and new information does not identify any circumstances in which it could be said that the Authority exceeded its statutory power in the conduct of the review. For the reasons already given, it is apparent that the Authority had a real and meaningful engagement with the submissions put on by the applicant and that the Authority correctly considered the new information in accordance with the requirements of s 473DD of the Act.

8. The applicant’s reference to his wife having been granted a visa is not a factor, in circumstances where they have separated, which gives rise to the applicant being a member of the family unit or a basis upon which it could be said that there was any relevant error by the Authority in the conduct of its review. Further, it is not apparent that the Authority was aware that there had been any grant of any visa at the time of the conduct of the review and, accordingly, for this further reason, cannot give rise to jurisdictional error.

9. The applicant’s submission from the bar table that he cannot go back to Sri Lanka, in essence, takes issue with the adverse findings by the Authority which rejected the applicant’s claims. The Authority provided logical and rational reasons for the adverse credibility findings, including the applicant’s delay in raising his new claims. The adverse findings cannot be said to lack an evident and intelligible justification. The applicant’s assertion that he cannot go back to Sri Lanka, in substance, invites this Court to engage in merits review. This Court has no power to review the merits of the Authority’s decision. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

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

   1. The decision of the Immigration Assessment Authority (IAA) was vitiated by a constructive failure to exercise jurisdiction, or a failure to take into account a relevant consideration, in that the IAA failed to consider whether the Applicant was a ‘member of the same family unit’, under regulation 790.221(3) of Schedule 2 to the Migration Regulations 1994 (Cth), of a person who satisfied paragraph 36(2)(a)( or 36(2)(aa) of the Migration Act 1958 (Cth).

   Particulars

   1.1The applicant’s wife and child were granted a Safe Haven Enterprise Visa (SHEV) on or about the same day as the Applicant’s SHEV visa application was refused.

   2. Alternatively, the decision of the IAA was vitiated by a constructive failure to exercise power, or failed to conduct the kind of review commanded by Part 7AA, because the IAA was disabled from doing so in that the Secretary failed to provide the IAA with the information as to the Applicant’s wife and child’s independent visa applications under section 473CB of the Migration Act.

   Particulars

   1.2    Particular 1.1 is repeated.

   3. The decision of the IAA was vitiated by reason of apprehension of bias, in that a fair-minded observer knowing that the IAA had before it objectively-irrelevant and prejudicial material might reasonably apprehend that the IAA might not bring an impartial and independent mind to the determination of the matter on its merits.

   Particulars

   3.1 The Federal Circuit Court quashed a previous decision of the IAA for apprehended bias by reason that objectively-irrelevant and prejudicial information was before the IAA.

   3.2 The same material was before the second IAA, albeit that the IAA at [7] purported to put the material out of its mind.

   3.3 Notwithstanding the statement of the IAA that it put the material out of its mind, having regard to the nature of the material, a fair minded observer might still reasonably apprehend that the IAA might be subconsciously influenced by the material such that an open mind might not be brought to bear on a determination of the merits.

Ground 1

1. In relation to ground 1, it is apparent the Authority took into account that the applicant had separated from his partner and he is no longer a member of the family unit with his wife and child. In those circumstances, there was no requirement for the Authority to take into account information in respect of the applicant’s wife and child. The delegate had found that the applicant was not a member of the same family unit and that the applicant was not a person in respect of whom Australia had protection obligations.

2. The Authority expressly referred to the applicant and his wife having separated. Accordingly, at the time of the decision of the Authority, the applicant no longer met the meaning of the term “spouse” in s 5F(2) of the Act or “member of the family unit” within r 1.12(4)(a) Migration Regulations 1994 (Cth) (“the Regulations”).

3. The Authority turned its mind to the question of whether or not the applicant was a member of the family unit. It cannot be said that the Authority’s conclusion that the applicant was not a member of the family unit was not open on the material before it. Further, at no time before the Authority did the applicant claim to be a member of the same family unit as his wife for the purpose of r 1.12(a) of the Regulations. The separate pursuit of an application for a protection visa by the applicant’s wife and child does not identify any basis upon which it can be said that the Authority, in the present case, exceeded its statutory power and engaged in any relevant error. Moreover, there was no submission advanced on behalf of the applicant to the Authority that the applicant met any criteria in respect of being a member of the family unit.

4. There was no new request for the Authority to exercise any power under s 473DC of the Act in relation to the applicant’s former wife and child. Accordingly, and given the finding in relation to separation, the absence of any consideration of the exercise of that discretionary power by the Authority cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1 of the amended application.

Ground 2

1. In relation to ground 2, as the applicant’s wife and child were not members of the family unit, there is no obligation on the Secretary under s 473CB of the Act to provide information in respect of the same. Nor is there a new issue of a kind which gives rise to a relevant error by the Authority in not expressly considering its exercising of powers under s 473DC of the Act in circumstances where it was identified that the applicant and his wife had separated. No such submission was advanced to the Authority on behalf of the applicant.

2. Further, the applicant had an opportunity to provide new information and submissions as a result of letters which were sent to the applicant following the decision of the delegate and the setting aside of the differently constituted Authority decision. The fact that the applicant’s legal representative withdrew does not identify a basis upon which it can be said that there is any relevant error by the Authority. Nor has there been identified before this Court any document which could be said to be credible, relevant and significant in respect to the applicant’s claims. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, reference is made to the Authority’s reasoning in paragraph 7 where the Authority referred to the applicant’s wife having made a complaint to police, their later reconciliation, the statutory declaration of the wife being struck out and withdrawn and a copy of a report from the applicant’s wife’s treating psychologist. The Authority also referred to the applicant remaining in immigration detention when he completed his protection visa application. The Authority stated that it did not consider the information relating to the police complaint, the psychologist and/or the striking out or withdrawal of a matter before the Magistrates Court as being relevant to the issues before the Authority. The Authority also stated that it was not satisfied the information is material and did not have regard to the same.

2. It has not been identified how that material could be said to be credible, relevant or significant to the determination of the Authority’s review. It also has not been identified how the said material could give rise to a rational, logical basis by reason of which the Authority would not determine the matter on its merits. On the face of the Authority’s reasons, it is apparent that the Authority did not have regard to any such material. The identified material to which the Authority has not had regard is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits.

3. On the face of the material before the Court, the Authority conducted the review in accordance with the statutory requirements and with an open mind reasonably capable of persuasion as to the merits. The adverse findings are not conduct which gives rise to the allegation or support the allegation of actual or apprehended bias. The reasoning in paragraph 7 of the Authority’s decision does not support the Court finding that there was any actual or apparent bias. No jurisdictional error as alleged in ground 3 is made out.

4. As the amended application fails to make out any jurisdictional error and there is nothing which has been said by the applicant from the bar table which identified any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street.

Date: 2 August 2019