Dij16 v Minister for Immigration
[2018] FCCA 3441
•26 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIJ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3441 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority complied with its statutory obligations – whether the Authority’s adverse findings were bias – whether the Authority identified the relevant law – whether the Authority failed to consider all of the applicant’s claims to fear harm – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 476 |
| Applicant: | DIJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 555 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 26 November 2018 |
| Date of Last Submission: | 26 November 2018 |
| Delivered at: | Perth |
| Delivered on: | 26 November 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Ms B Rayment Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.
DATE OF ORDER: 26 November 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 555 of 2016
| DIJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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 26 October 2016 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
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 Hindu, Tamil male from Jaffna, Northern Province who had also resided in Colombo and Saudi Arabia.
The applicant arrived in Australia as an unauthorised maritime arrival on 17 August 2012. The applicant lodged the application for the visa in the present case on 19 November 2015. The applicant attended an interview on 15 March 2016. On 26 July 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa.
On 2 August 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. No such documents were put on.
The Authority identified that the applicant fears harm on the basis of being a young Tamil male from the Northern Province and claims to be imputed by the Sri Lankan authorities to be a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant claims in 2009, he was detained by the Criminal Investigation Department (“CID”) and the Sri Lankan Police and held in detention. The applicant fears he will be detained at the airport by the authorities who will question why he left Sri Lanka and why he left illegally.
The Authority, in paragraph 8, identified that the applicant resided in Saudi Arabia for a period of two and a half years between 2004 and 2006 and in Colombo between 2001 and 2004 and again between 2008 and 2012. The Authority identified the applicant’s family, including parents and siblings, continue to reside in Jaffna with the exception of one brother.
The Authority referred to the applicant stating he had been rounded up by the army and detained by police and CID in Jaffna in 1997 and in Colombo in 2009 and alleged to being physically harmed by the authorities. At the Safe Haven Enterprise visa interview, the applicant confirmed he had not had any other involvement with the LTTE other than the authorities suspecting him of having links because of where he came from. The Authority accepted that the applicant was detained and physically harmed by authorities twice and questioned four or five times in total.
The Authority referred to Department of Foreign Affairs and Trade (“DFAT”) country information and expressly referred to Tamils being detained under emergency regulations and the Prevention of Terrorism Act (“PTA”). The Authority referred to the United Nations High Commissioner for Refugees (“UNHCR”) guidelines published in 2012. The Authority also referred to country information and that the situation in the north and east had greatly improved since the end of the conflict. The Authority referred to other country information, including individuals who had been held under the Prevention of Terrorism Act being released and constructing engagement with the Tamil National Alliance (“TNA”).
The Authority accepted the applicant had previously faced harm from the Sri Lankan authorities on the basis of being a Tamil from the Northern Province and suspected of having links to the LTTE. The Authority however found, on country information and the change in circumstances in Sri Lanka since the cessation of the civil conflict, that the Authority was not satisfied the applicant would face a real chance of harm upon return to Sri Lanka.
The Authority took into account the applicant’s arrest and found the applicant had never been sent to a rehabilitation camp. It was in these circumstances, the Authority was not satisfied the applicant is of any adverse interest to the Sri Lankan authorities on the basis of being a young Tamil male from the Northern Province and/or for having any real or perceived links to the LTTE. The Authority was not satisfied there is a real chance the applicant would face harm on return to Sri Lanka now or in the reasonably foreseeable future.
The Authority accepted that the applicant would be returned to Sri Lanka as a failed Tamil asylum seeker who departed illegally. The Authority found the period of detention of the applicant would be brief and would not rise to the level of threat to his life or liberty or to significant physical harassment or ill-treatment or any other form of serious harm for the applicant. The Authority accepted that the applicant will be required to pay a fine or will be released on his own personal surety. The Authority was not satisfied this amounts to serious harm.
The Authority was not satisfied that payment of a fine, being held in detention for a short period and questioned, cumulatively amount to serious harm. The Authority found the Immigrants and Emigrants Act 1949 (Sri Lanka) is not discriminatory on its face and is not applied in a discriminatory manner and found that it is a law of general application which will not ordinarily constitute persecution. The Authority found the treatment that the applicant will face as a consequence of the application of the Immigrants and Emigrants Act 1949 (Sri Lanka) is not persecution within the meaning of s 5J(4) of the Act.
The Authority did not accept that the applicant had a risk profile requiring monitoring. The Authority was not satisfied the Sri Lankan authorities will pursue the applicant once he returns to his home area.
The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria in s 36(2)(a) of the Act.
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 from Australia, there is a real risk the applicant would 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
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.
From the bar table, the applicant maintained that there has been changes in the political situation in Sri Lanka and that he could not go back and that his life would be in danger. The applicant also handed up to the Court a further document which attached more recent country information. The Court received the documents and marked them exhibit C, but rejected the tender of the proposed country information as the country information was not before the Authority and accordingly, the country information is not capable of giving rise to establishing any relevant error by the Authority. The Court otherwise treated the applicant’s document as constituting a submission.
The document asserted that the Authority had failed to examine the country situation, and accordingly had fallen into jurisdictional error. The Authority’s reasons, as summarised above, identify the Authority taking into account country information. It was a matter for the Authority to determine what country information the Authority accepted. The submissions refer to the past events and it is apparent on the Authority’s reasons that the Authority took into account the treatment to which the applicant had been exposed prior to the end of the war, and made adverse findings in respect of the applicant’s claims that were open to the Authority for the reasons given by the Authority.
The applicant’s assertion that he has a well-founded fear of persecution reflects a disagreement with the findings by the Authority and does not identify any relevant jurisdictional error. Nothing in exhibit C or anything said by the applicant from the bar table identified any jurisdictional error by the Authority.
The grounds
The grounds of the applicant’s application are as follows:
1. Jurisdictional error.
2. Bias based on conscious of unconscious prejudice by ignoring relevant material.
3. Identifying a wrong issue on a wrong question.
Ground 1
In respect of ground 1, the bare assertion of a jurisdictional error, unparticularised, is not capable of making out any relevant error. No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, in respect of the generalised assertion of bias, no particulars have been given supporting the basis for such an allegation. To the extent that the allegation is advanced on the basis of the adverse findings by the Authority, the adverse findings are 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.
There is nothing on the face of the material before the Court to suggest the Authority approached the review with other than an open mind, reasonably capable of persuasion as to the merits under the statutory regime in accordance with Part 7AA of the Act. No case of bias is made out.
There is no basis identified for the assertion of unconscious prejudice. As identified above, the Authority’s reasons reflect an orthodox approach to the review and in the consideration of the applicant’s claims and evidence and the making of dispositive findings with cogent reasons in support of the same. No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, the Authority’s reasons on their face correctly identify the relevant law, including the applicable law as attached to the Authority’s reasons. On the face of the Authority’s reasons, the Authority correctly applied the relevant law. There is no basis to find that the Authority identified the wrong question, identified the wrong issue, or asked itself the wrong question. No jurisdictional error is made out by ground 3.
Affidavit filed 7 November 2016
The applicant’s affidavit filed on 7 November 2016 in support of the application also included an annexure, which asserted jurisdictional error by failing to examine the provisions of the Prevention of Terrorism Act, under which the applicant was detained. It is apparent from the Authority’s reasons, as summarised above, that the Authority took into account the existence of the Prevention of Terrorism Act and also the detention of the applicant, and took into account the fact that the applicant was not sent for rehabilitation. On the face of the Authority’s reasons, there was no jurisdictional error of the kind alleged in paragraph 2(a) of the annexure to the first affidavit.
In relation to paragraph 2(b), there is an alleged failure by the Authority in relation to the consideration of the application of the Immigrants and Emigrants Act 1949 (Sri Lanka). It is apparent that the Authority found the applicant had departed illegally and took into account country information, including the applicant’s profile, in considering whether or not the applicant met the criteria under the Refugee Convention or in respect of complementary protection in respect of the processes to which the applicant would be subjected. There is no basis for finding that there is any jurisdictional error as alleged in paragraph 2(b) of the attachment to the first affidavit.
In relation to paragraph 2(c), this in substance reflects a disagreement with the country information accepted by the Authority. It was a matter for the Authority to determine what country information to accept. No jurisdictional error is made out by paragraph 2(c) of the attachment to the first affidavit.
In relation to paragraph 2(d), it is apparent that the Authority did refer to and take into account the UNHCR guidelines and the Authority expressly referred to the same, as summarised above. No jurisdictional error is made out by ground 2(d) of the attachment to the first affidavit.
The document otherwise appears to invite the Court to engage in impermissible merits review and does not make out any jurisdictional error.
Affidavit filed 12 November 2018
The applicant filed a further affidavit on 12 November 2018, in which he again raised an alleged error in respect of the Authority not examining the Prevention of Terrorism Act. It is apparent from the Authority’s reasons that it did do so. No jurisdictional error is made out by the applicant in that regard.
There is a further issue raised in respect of country information and again, for the reasons earlier given, it is a matter for the Authority to determine what country information it accepts.
There is a further paragraph asserting prejudice, but no proper basis identified for that. For the reasons already given, the assertion of prejudice or bias is not made out.
There is a reference to particular paragraphs, 8, 9 and 16, of the Authority’s reasons. The substance of paragraphs 8, 9 and 16 have already been summarised by the Court. It is not apparent that there is any error in the findings by the Authority in that regard. Those findings were open for the reasons given by the Authority and cannot be said to be unreasonable or illogical. There was no failure on the face of the Authority’s reasons to take into account the whole of the applicant’s claims and evidence and the Authority made adverse findings dispositive of those claims.
Conclusion
No jurisdictional error is made out by the application and no jurisdictional error is made out by the other submissions advanced by the applicant. Accordingly, the application is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 24 January 2019
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