DHA16 v Minister for Immigration

[2018] FCCA 3644

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHA16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3644

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: DHA16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 548 of 2016

Judgment of: Judge Vasta

Hearing date: 30 November 2018

Date of Last Submission: 30 November 2018

Delivered at: Perth

Delivered on: 30 November 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the name of the First Respondent be amended to reflect “Minister for Immigration, Citizenship and Multicultural Affairs”.

2. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Applications filed 2 November 2016 and 28 February 2017 are dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $4.500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 548 of 2016

DHA16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant, DHA16, is a Sri Lankan citizen who identifies as Sinhalese.  He was born to Sinhalese parents in the North Western Province.  He married a Muslim woman and adopted Islam as his religion.  He worked as a fisherman in Sri Lanka, and he said that he found it difficult to earn sufficient income as a fisherman and he had to borrow money. 

2. He attempted to leave Sri Lanka in 2002 and was part of a crew that took asylum seekers on a boat bound for Italy.  They were intercepted and returned to Sri Lanka.  He was questioned by authorities about this venture on return.

3. The Applicant made a further attempt to leave Sri Lanka and paid money to an agent who cheated him.  He borrowed this money and was not able to repay the funds.  He said he was harassed about non-payment.  He then accepted an offer to captain a boat of asylum seekers to Australia in 2012.  That boat did make it to Australia, though he was an unauthorised maritime arrival.

4. He claims that since his departure, the Criminal Investigation Department (“the CID”) have visited his wife to ask about his whereabouts.  He claims that the CID had two crew members from the 2012 boat venture with them when they came to his wife’s residence.  He said the crew members gave information to the CID, and one has falsely stated that he paid money to the Applicant. 

5. He said that he fears on return he will be punished under the Sri Lankan Immigrants and Emigrants Act.  He said that he may be detained without bail as investigations are carried out.  He faces ill-treatment and torture whilst in detention.  He said that if he refuses to provide information he will be tortured.  He said if he gives authorities information about the people smugglers, those people will find out and punish him.

6. His fear extends to all Sri Lanka, as the authorities and people smugglers will be able to find him wherever he lives.  He said that he fears he will be prosecuted as a people smuggler and jailed.  He fears that because of his earlier aborted trip to Italy, he will receive a significant jail term, and he said he will face harm in prison because of his Muslim faith. 

7. There was also a data breach that may have allowed his details to have been available on the internet for a very short time.  He fears that the data breach has rendered him a refugee sur place.

8. The Applicant was given the opportunity to apply for a temporary protection visa, subclass 785.  He did so on 6 January 2016.  On 24 August 2016 a delegate of the Minister refused to grant the visa.  This, being a fast track decision, was then referred to the Immigration Assessment Authority (“the IAA”).

9. The IAA made some findings of satisfaction on the facts.  Those findings were that the Applicant did captain a boat of asylum seekers that came to Australia, and there was an acceptance that the CID have visited his wife to ask about his whereabouts.

10. However, the IAA found that the claim that the CID visited the family with two crew members from the boat to be implausible.  The IAA did not accept that the CID would take two other suspects with them when visiting the home of a third suspect in the same venture.  However, the IAA accepted as plausible that other crew members from the boat captained by the Applicant have returned to Sri Lanka, and have given information to the CID about the venture and about the role that the Applicant played. 

11. The IAA accepted that the Applicant departed Sri Lanka illegally and has claimed asylum in Australia, and the IAA accepted that the Applicant’s details were disclosed in February 2014 by the Department on their website.

12. The IAA looked at what would happen to the Applicant as someone who departed illegally and then was returned.  The IAA looked at country information and found that the Applicant would simply, for the crime of departing illegally, face some punishment, but that that punishment would most probably be a fine and maybe a short period of detention until the Applicant were dealt with. 

13. The IAA could not discount that the Sri Lankan government may have had access to the Applicant’s details following the data breach, but DFAT reported that it was not aware of any specific post-arrival monitoring of recently returned failed asylum seekers.  The IAA noted that monitoring and fears about mistreatment have reduced under the current government, and the risk of harm for the majority returnees is low.

14. Though, because of the fact that the Applicant had committed a crime by captaining a boat of asylum seekers to Australia, the IAA assessed that the Applicant could be charged with an offence under that Act.  The IAA also accepted that this was the second time that the Applicant had been involved with sailing a boat of asylum seekers. 

15. However, the IAA found that any penalty received would be the result of a law of general application, that the law would be administered in a non-discriminatory manner, and it would be applied in a non-discriminatory manner.  It is a law that applies to all Sri Lankans.  Such a law cannot constitute persecution because the application of the law does not amount to discrimination.  Therefore, the Applicant could not have a well-founded fear of persecution.

16. Because the Applicant may be sentenced to a term of imprisonment for the crime that he has committed, the IAA looked at prison conditions, and country information confirmed that the prison conditions are poor due to overcrowding, poor sanitation and lack of resources.  Notwithstanding that, the IAA did not find that such would amount to serious harm. 

17. The Applicant spoke about his Muslim religion and claimed that this would be an issue if he were to spend time in detention or prison, but there was no country information that spoke of any mistreatment to Muslims or targeting of Muslims in prison, and so the IAA found that there was not any real chance of harm.

18. The IAA noted that the Applicant feared recriminations from giving information to the authorities about people smuggling and what would happen if people smugglers became aware of this.  The IAA considered that claim to be highly speculative and dependent on the Applicant being charged in providing information to the authorities, the people smugglers becoming aware that the Applicant provided such information and then taking action against him.  It was noted that the CID were already aware of the venture because of the returned crew members having given information, and if the people smugglers wanted to take some sort of action against people giving information, one would have seen what had happened to the two returned crew members over in Sri Lanka.  Nothing has happened to them in the ensuing four years of them being in Sri Lanka by way of revenge attacks.  Not surprisingly then, the IAA found that the Applicant did not meet the definition of refugee.

19. The IAA looked at the complementary protection criteria and again looked at what would happen to the Applicant if he were to be imprisoned.  The IAA noted that being in prison did not suggest that there was any intention on behalf of any of the authorities to inflict pain or suffering or extreme humiliation, nor were they planning to impose a death penalty, or to arbitrarily deprive the Applicant of life, or to torture him. 

20. Those conditions in prison of themselves do not constitute significant harm was the finding of the IAA.  Having made that finding, the IAA found that the criteria for the complementary protection obligations had not been fulfilled.  It therefore affirmed the decision.

21. The application by the Applicant has the following grounds of appeal.  They are:

    Amended Ground 1

    The second respondent erred by failing to consider and deal with submissions put by the applicant at paragraphs [8] – [12] of the submission put to the second respondent: CB138 and by doing so constructively failed to exercise jurisdiction…

22. This was a reference to submissions that the IAA received from the Applicant. The IAA spoke of these at paragraphs 4 and 5 in the decision.  In paragraph 4, the IAA wrote:

    4. The applicant’s representative forwarded a submission to the IAA, dated 11 September 2016.  The representative refers to the delegate’s decision and disputes a number of findings.  The submission does not contain any new information, and I have therefore had regard to this submission.

    5. The submission contends the applicant was denied natural justice in regard to the delegate’s data breach findings, and advances that the applicant be given “an opportunity to be heard”. I note that the delegate provided the representative seven days to provide further information after the TPV interview, and the representative made a written submission on 29 July 2016 in which he comments on the data breach. I consider that the applicant was provided the opportunity to put forward his claims relating to the data breach, and I am not satisfied that any exceptional circumstances exist that warrant the IAA getting new information in this matter.

23. The application talks of paragraphs 8 to 12 of that submission.  Paragraphs 8 to 12 are as follows:

    Error 3. 

    8. Under the “Prison Conditions” the delegate stated as follows:

    In considering the applicant’s claims, I am note that for a real risk to arise, the risk must also be one faced personally by the applicant. According to paragraph 36(2B)(c) of the Migration Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the “real risk is one faced by the population of the country generally and is not faced by the non-citizen personally”.

    9. The delegate stated that in order to show the applicant risks significant harm, it must be shown that the applicant is personally at risk of harm.  She rejected that the applicant faces any real risk of harm by relying on her wrong application of Section 36(2B)(c) of the MA 1958.  The delegate held that if the applicant is imprisoned, he will suffer what all other Sri Lankan inmates are suffering therefore his risk is one faced by all the prison population of Sri Lanka generally and is not faced by the applicant personally.  Therefore Section 36(2B)(c) applies to negate his real risks of suffering. To this we submit the delegate interpreted and applied section 36(2B)(c) incorrectly. 

    10. We submit the words “general population” in section 36(2B)(c) refers to general population of Sri Lanka and not to or limited to ‘prison inmates of Sri Lanka’.

    11. Additionally the delegate limited her assessment on real risks of the applicant on the prison conditions and neglected to consider the applicant’s claim that on detention he will suffer physical torture by the Sri Lankan authorities.

    12. Here the delegate having found that the applicant is likely to be detained in the deplorable, over-crowded and poor sanitary condition prison held that the applicant cannot be considered to suffer significant harm merely because all inmates face the same conditions.  This is clearly a wrong application of section 36(2B)(c) of the MA 1958.

24. The particulars given then were that the Second Respondent, that is, the IAA, failed to deal with those submissions.  The problem for the Applicant is that the IAA is not acting as an appeal per se from the delegate.  The IAA must look at all matters themselves.  Simply because the IAA did not specifically say in the reasons that, “I have seen what the delegate has done.  I have taken into account all of the submissions on that part of what the delegate says, and I come to this conclusion”, does not mean that the IAA has not had regard to what has happened.

25. What must be done by the IAA is to have a completely fresh look at the whole circumstances.  Whilst the decision of the delegate may be a useful guide, the IAA is not there to slavishly follow exactly what the delegate has done.  The IAA is looking at all matters afresh. 

26. The claim made by the Applicant is not that in dealing with the matter of the prison and the serious harm that could be faced by the Applicant, fell into the same error that they claim the delegate came to.  The grounds do not say that there is any error in the way in which the IAA has approached this particular question.  The claim is that there is a jurisdictional error because the delegate did something and the IAA did not deal with what the delegate had done according to the submissions that have been given.

27. This really misinterprets what the role of the IAA is.  It could never constitute a jurisdictional error because it is not what the delegate has found; it is what the IAA has found that is important.  The IAA has looked at this question, has assessed the matter properly according to the legislation, and come to a conclusion that is open on the evidence.  For those reasons, I do not find that there is any jurisdictional error.

28. In this matter the Applicant had been represented by a solicitor up until last week, Friday, 23 November 2018.  On that day the solicitor notified the solicitors for the Minister to tell them that the Applicant was now representing himself, and on 23 November the Applicant filed a notice to say that he is acting in person. 

29. He was called into Court at 2.15pm today and then again at 2.40pm. He failed to appear. I am of the view in all of those circumstances that it is proper for the Court to proceed pursuant to r.13.03C(1)(e) and deal with this matter on the merits as I have.

30. In all the circumstances, I find that there has been no jurisdictional error committed. I dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019