CXF17 v Minister for Immigration

[2020] FCCA 1666

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXF17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1666

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to take into account relevant material – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: CXF17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 354 of 2017

Judgment of: Judge Street

Hearing date: 22 June 2020

Date of Last Submission: 22 June 2020

Delivered at: Sydney

Delivered on: 22 June 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the Respondents: Mr A Gerrard, Australian Government Solicitor, via Microsoft Teams

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

DATE OF ORDER: 22 June 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 354 of 2017

CXF17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is 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 Pt 7AA of the Act, dated 26 May 2017, affirming a decision of a delegate of the first respondent (“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. 

3. The applicant was found to be of Tamil ethnicity, from the Northern Province of Sri Lanka, and claimed to fear harm by reason of actual or imputed Liberation Tigers of Tamil Eelam (“LTTE”) links and by reason of being a person who left Sri Lanka illegally and as a failed asylum seeker.  

4. On 24 November 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. 

5. The Delegate did not accept the applicant’s claims in relation to his father being in hiding or being suspected of being an LTTE supporter. 

6. The Delegate also referred to a letter provided by the applicant, and gave the same no weight. 

7. The Delegate found that the applicant was not a person of interest to the Sri Lankan authorities when he left the country. 

8. On 29 November 2016, the Authority wrote to the applicant, explaining that the application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction providing the applicant an opportunity to put on new information and submissions. No such information was provided to the Authority by the applicant. 

9. The Authority identified the background to the Safe Haven Enterprise visa application and had regard to the material referred by the Secretary under s 473CB of the Act. 

10. The Authority summarised the relevant law, including in a paginated annexure incorporated into the Authority’s reasons. 

11. The Authority summarised the applicant’s claims, including the alleged incident in October 2010, which included his claim that after his father’s release from hospital, he went into hiding. 

12. The Authority referred to the applicant’s claims concerning relatives being killed in 2006, and accepted that there were family members killed by the Sri Lanka Army (“SLA”) in 2006. The Authority did not accept that the killing of the applicant’s relatives and his appearance at the crime scene the morning after will lead to him facing a real chance of harm in Sri Lanka.

13. The Authority took into account the age of the applicant at the relevant time and was satisfied that the event would not lead to the applicant facing a real chance of harm now or in the reasonably foreseeable future in Sri Lanka. 

14. The Authority referred to the applicant’s father’s elder brother being in the LTTE. The Authority found the applicant’s evidence regarding his uncle and his uncle’s whereabouts to be vague and confused. The Authority found that the applicant’s uncle, who had been involved in the LTTE in the past, had returned to Sri Lanka and lives in a particular location.     

15. The Authority took into account that the applicant does not claim that he, his father, his uncle, or any other family members have been detained under the Emergency Regulations or the Prevention of Terrorism Act.  The Authority found that this indicates that neither the applicant, his father, nor his uncle are perceived by the Sri Lankan authorities as being members of the LTTE or involved in advocating for a separate Tamil state. 

16. The Authority was not satisfied that the applicant faces a real chance of harm in Sri Lanka because of his uncle’s claimed involvement with the LTTE. 

17. The Authority referred to the applicant’s claimed event in October 2010 when he was assaulted and his father was taken and left in a forest. The Authority referred to the applicant’s claims in relation to the injury suffered by his father, as well as a report containing a statement from the applicant’s father. The Authority found that the report was inconsistent with the applicant’s claims. The Authority identified the inconsistencies in relation to the applicant’s claims involving that assault, and also took into account the mother’s version, which undermined the applicant’s claims.     

18. The Authority did not accept the applicant’s claim in relation to this incident as being truthful, and did not accept that the assault occurred or that his father was taken away, and did not accept that the applicant and his mother reported the incident to authorities, and did not accept the applicant’s claims that either he or his father went into hiding in 2010, 2011 or 2012. 

19. The Authority did not accept that the applicant’s father was arrested in either 2010 or 2012 for supporting a Tamil Member of Parliament in the local elections. 

20. The Authority referred to the applicant’s claim that someone attempted to pull him into a van in July 2012, and the Authority took into account country information identifying that abductions have dropped considerably, and found that the chance of the applicant facing abduction or being abducted in a van if returned to Sri Lanka to be remote. 

21. The Authority referred to the applicant being imputed with LTTE links because of his ethnicity and took into account country information, including those who have profiles that may be of interest to the authorities. 

22. The Authority was satisfied that the applicant’s profile and circumstances are such that he does not face a real chance of harm including abduction, now or in the reasonably foreseeable future, because he is a Tamil from the North or because he would be imputed to be a supporter of the LTTE. 

23. The Authority was satisfied that the applicant does not face a real chance of harm because of his religion now or in the reasonably foreseeable future. 

24. The Authority found the applicant’s claims in relation to his mother being subject to visits and extortion not to be credible, and did not accept that the SLA has demanded the applicant to report to them.

25. The Authority accepted that the applicant departed Sri Lanka illegally and would be returning as a failed asylum seeker. The Authority found that the applicant would be charged, convicted and fined for his illegal departure, and found that the treatment to which the applicant would be exposed does not amount to serious harm.

26. The Authority also found that the application of the Immigrants and Emigrants Act, as a law of general application, would not amount to persecution for the purpose of the Act.

27. The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act, and found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

28. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, 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. These proceedings were commenced on 29 June 2017, and on 10 August 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant put on an amended application, as well as written submissions. 

2. The applicant endeavoured to tender country information that was not before the Authority, going to the merit of the applicant’s claims. That country information was objected to by the first respondent, and it was marked MFI1 and its tender rejected as not being relevant. That is because country information that was not before the Authority concerning the applicant’s claims is not capable of giving rise to any relevant error.  Nothing said by the applicant identified any jurisdictional error.

The ground

1. The ground of the amended application is as follow:

   A. Ground 1

   1. The First Respondent (the Delegate) and Second Respondent (IAA) has ignored relevant material and facts in reaching their decision and reasons. Such an error of law is a Jurisdictional error which makes the decision of the Immigration Assessment Authority (Second Respondent) invalid.

   Particulars

   a) The Second Respondent only relied on the DFAT Country Report -Sri Lanka 2015. The IAA failed to take into account that there are limitations and unavailability of certain relevant information on those suspected and imputed links to the LTTE and returnees who departed Sri Lanka illegally in the DFAT country information of Sri Lanka.

   b) According to The Ministerial direction no 56 states that DFAT country information is to be taken into account only where it is relevant information, and that the decision maker is not precluded from considering other relevant information about the real situation in Sri Lanka.

   c) The First Respondent (the Delegate) failed to consider other reliable relevant materials and report which was available in the year 2016 (from the period of application for a Temporary protection visa (TPV) till the date before the decision of refusal was made). The Second Respondent (IAA Reviewer) failed to consider other reliable and relevant materials which was available before the date of the decision of IAA in 2017 regarding the real situation in Sri Lanka other than the DFAT Country Information 2015 report. The Second Respondent only referred to 2015 DFAT report when considering the issue i) does the applicant have a well-founded fear of prosecution, ii) the attempt to force the applicant into a van in July 2012 ii) does the applicant face harm as a Tamil failed asylum seeker who departed Sri Lanka illegally iv) persons links to the L TTE and did not refer to other relevant and reliable information.

   d) That narrow approach was adopted by the second respondent in not accepting the documents that was submitted by the applicant as stated in paragraph 19,20,21,22,23 and 24 ( at page 6 and 7) of the IAA decision and reasons dated 26 May 2017.

2. There was no relevant material or facts that have been identified that the Authority failed to take into account. It was a matter for the Authority as to what country information it accepted. There is no basis to find that the Authority did not take into account the whole of the information before the Authority. Further, the Authority does not have to refer to every piece of information before it in its reasons. 

3. It is apparent from the Authority’s reasons that the Authority took into account a wide array of country information. The applicant’s reference to limitations and unavailability of relevant information and the reference to reliable material are an invitation to engage in merits review.

4. The Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. The adverse finding as to the assault of the applicant and his father in 2010 were open for the reasons given by the Authority which included the discrepancy as to the father’s injuries as well as the reference to the war situation that finished in 2009. The report dated 20 September 2010 was found to be inconsistent with the applicant’s claims. The Authority identified inconsistencies in the document dated 4 October 2013 as well as significant differences as to the account of events. The Authority referred to the applicant’s evidence as to his father’s arrest to be confusing, vague and generalised as well as taking into account the uncertain and hesitant manner of the applicant and the evidence being confused and inconsistent. The adverse findings in relation to the alleged October 2010 assault and in relation to the father’s alleged arrest in 2012 were open to the Authority to make.

5. Accordingly, in these circumstances, ground 1 of the amended application fails to make out any jurisdictional error.

Written submissions

1. The applicant also put on written submissions, as follows: 

   In replying to the Respondent's submission, I hereby submit that :

   1. The IAA had failed to take into consideration of my consistent declaration that me and my father was attacked by the Sri Lankan army in 2010 and my father was abducted and detained by the Sri Lankan authorities. My father was detained for the reason the SLA suspected that my father was a L TTE member. He was detained under the emergency regulation or prevention of terrorism for the period of 2 weeks.

   2. The IAA raised that there are contradiction and inconsistences pertaining to the documents submitted by me and does not believe me and decided to reject my claim for protection visa. I state that the IAA Failed to clarify with me the discrepancies or inconsistencies raised by the IAA before reaching their decision.

   3. The IAA further failed to examine other relevant information and document pertaining to the real situation in Sri Lanka such as the Sri Lankan 2016 report which was available before the IAA decision. The IAA failed to refer to article "Information report: Sri Lanka October 2016" at page 3 under the heading "Summary" which clearly states that:

   a) the DFAT report ignores and downplays number of facts that still make Sri Lanka unsafe,

   b) Abductions, torture and rape by the army and police have occurred even under the current regime,

   c) A disproportionately large military presence is imposed upon Tamil areas,

   d) Tamils feel intimidated and vulnerable and,

   e) there are still hundreds of people detained without trial under the Prevention Of Terrorism Act.

   4. The IAA without proper examination decided that my chance of facing abduction in Sri Lanka is remote. The IAA made an error when failed to examine in detail pertaining to my abduction attempt in July 2012. The reason for the abduction attempt in 2012 could be because the SLA or other authorities suspected that I was involved in L TTE.

   5. The IAA failed to examine the fact that the I could be suspected had links with the L TTE and the possibility of being detained under the prevention of terrorism if I am returned to Sri Lanka. I fear about the abduction, arrest and detention under the Prevention Of Terrorism Act.

   For the reason above, I hereby plead that my application should be allowed.

2. In relation to para 1, it is apparent that the Authority did consider the applicant’s claims concerning his father being attacked in 2010 and abducted, and made adverse findings that were open for the reasons given by the Authority as summarised above.

3. The Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence in relation to the incident in 2010 and the making of dispositive findings that were open to the Authority. 

4. No jurisdictional error arises by reason of para 1 of the applicant’s written submissions. 

5. In relation to para 2, the Authority, in its reasons, identified inconsistencies and contradictions between the applicant’s evidence as summarised above. These were logical and rational matters for the Authority to take into account. 

6. Under s 5AAA of the Act, it is for the applicant to provide sufficient evidence to establish his claims. Further, taking into account the provisions of pt 7AA of the Act and including, in particular, s 473DB, the Authority was not required to invite the applicant to attend a further interview. There was no new issue of a kind that required express deliberation of the powers under s473DC of the Act.

7. Given the adverse findings by the Delegate, the applicant was on notice of the credibility issues in relation to his claims. The Authority gave the applicant an opportunity to put on new information and submissions, and the applicant did not do so. 

8. No jurisdictional is made out by para 2 of the written submissions. 

9. In relation to para 3, the applicant informed the Court that the document referred to, which has been marked MFI1, was not before the Authority. A document not before the Authority going to the merits cannot give rise to any relevant error in relation to the applicant’s claims. Further, the document has not been admitted into evidence before the Court. This is because the document was not relevant and was not capable of establishing any jurisdictional error by the Authority. Accordingly, para 3 fails to make out any jurisdictional error.

10. In relation to para 4, this, in substance, invites merits review by disagreeing with the adverse findings by the Authority that were open for the reason given by the Authority. The Authority took into account that the applicant does not claim that he, his father or uncle or any other family member have been detained under either the Emergency Regulations or the Prevention of Terrorism Act. The Authority fund this indicates that the applicant, his father and uncles are not perceived by the Sri Lankan authorities as being LTTE members or involved in anti-government activities or advocating for a separate Tamil state. The Authority took into account country information and found the applicant is not a person considered by the Sri Lankan authorities to have family links to the LTTE or to have been an LTTE member. The Authority made dispositive findings in relation to the applicant’s claims concerning actual or imputed links to the LTTE. 

11. No jurisdictional error is made out by reason of para 4. 

12. In relation to para 5, the Authority considered the applicant’s claims concerning suspected links to the LTTE and made adverse findings in that regard that were dispositive of those claims and open for the reasons given by the Authority.

13. The Authority also took into account the Prevention of Terrorism Act 1979, as referred to in para 34. The Authority made adverse findings in relation to the applicant’s claims concerning his fears about arrest and detention upon return to Sri Lanka. 

14. No jurisdictional error is made out by para 5 of the written submissions. 

15. The applicant orally submitted that he had the assistance of lawyers who were only learning at the time that he lodged his application for protection. This is, in substance, a submission inviting the Court to engage in merits review.

16. Further, it is apparent from the Authority’s letter dated 29 November 2016 that the applicant was given an opportunity to put on new information and submission and did not do so. 

17. As already identified this is not a case of a kind where there was a new issue requiring express consideration by the Authority of its powers under s 473DC of the Act. Given the absence of any response to the letter dated 29 November 2016, the absence of any express consideration cannot be said to lack an evident and intelligible justification.

1. The applicant, otherwise, put submissions as to what may happen to him on return to Sri Lanka, inviting this Court to engage in merits review. This Court has no power to review the merits and cannot determine the matter on compassionate or discretionary grounds. Nothing said by the applicant identified any jurisdictional error in the conduct of the review by the Authority. 

2. As no jurisdictional error has been made out by the amended application, the amended application is dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 22 June 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 5 August 2020