Diz16 v Minister for Immigration

[2018] FCCA 3502

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIZ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3502

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider all of the applicant’s claims and evidence – whether the Authority failed to afford the applicant the opportunity to put on new information and submissions – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: DIZ16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 560 of 2016

Judgment of: Judge Street

Hearing date: 29 November 2018

Date of Last Submission: 29 November 2018

Delivered at: Perth

Delivered on: 29 November 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

DATE OF ORDER: 29 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 560 of 2016

DIZ16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

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 11 October 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 arrived in Australia as an unauthorised maritime arrival on 17 August 2012. The applicant was found to be a Tamil from Jaffna.

3. The applicant claimed to fear harm by reason of his involvement with the Liberation Tigers of Tamil Eelam (“LTTE”) and feared that he would be captured, tortured and possibly murdered as a Tamil, and has been imputed with an LTTE profile, and is a part of a social group of people tortured by the army. On 26 July 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 2 August 2016, the Authority wrote to the applicant explaining that the application 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. No such documents were provided to the Authority.

5. The Authority identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims for protection and accepted that the applicant had undertaken LTTE training for 15 days in 2005. The Authority also accepted as plausible that the applicant was arrested and held for six days in November 2006 and that he was assaulted whilst detained. The Authority also accepted the applicant was arrested and held for two days in February 2007.

6. The Authority found the applicant had travelled to Malaysia for two months in 2008 and worked in Qatar from 2008 to 2010. The Authority referred to the applicant’s claim that he was required to report to the authorities on a daily basis almost continually from 2006.

7. The Authority found there was no residual interest in the applicant following his detention and questioning in November 2006. The Authority found the applicant was released without any requirements to report. In these circumstances, the Authority was not satisfied that the detention in 2006 points to any ongoing interest in the applicant as a person with LTTE links.

8. The Authority found that the applicant was not taken before a Court for a bail determination and was not satisfied the applicant was required to report daily as claimed. The Authority also took into account the applicant was released without charge in 2007 after being detained for two days following a bomb blast. The Authority found if the applicant had been of interest to the authorities as an LTTE member or a supporter, the Authority did not accept he would have been able to travel to Malaysia and Qatar as he did in 2008. The Authority took into account that the applicant said he had no difficulty exiting and entering the country. The Authority was not satisfied the applicant’s explanation for his ability to exit and enter Sri Lanka on four occasions was because his problem was localised.

9. The Authority was not satisfied that the questioning of the applicant on return in 2010 points to the applicant being imputed with a serious LTTE profile.

10. The Authority referred to the applicant’s assertion of moving to his father-in-law’s address and referred to it being plausible that the army may have been interested in his whereabouts if he was not at the residence where he was registered. The Authority found it highly unlikely that the army would not have taken steps to arrest him if the applicant had been required to report daily and was of high-level interest as claimed. The Authority found it was farfetched to believe the army was not concerned to arrest him because of his father-in-law’s influence as the mayor.

11. The Authority accepted that there had been an attack on the applicant’s father-in-law’s house in April 2012, but was not satisfied that this incident is linked to the applicant.

12. The Authority was not satisfied that the matters accepted by the Authority point to the applicant having a real or imputed profile as an LTTE supporter that would attract the claimed interest. The Authority accepted the Applicant was detained as identified above in 2006 and 2007 and questioned in 2012, but considered this was on the basis of a general treatment of Tamils at the time and not on the basis of an LTTE profile.

13. The Authority did not accept the authorities made ongoing visits on 15 to 20 occasions to the applicant’s wife searching for the applicant.

14. The Authority found the applicant does not have a real or imputed LTTE profile. The Authority accepted the applicant left Sri Lanka illegally. The Authority found it is likely the applicant will be charged under the Immigrants and Emigrants Act 1949 (Sri Lanka) and released, or if he were to plead not guilty, he will be released on his own surety. The Authority was not satisfied the applicant would be subject to further investigation or an ongoing or prolonged detention, or mistreatment during questioning and investigative procedures carried out under the Immigrants and Emigrants Act 1949 (Sri Lanka).

15. The Authority accepted the applicant will be detained and that a period of detention could extend up to four days until his matter is presented to a magistrate for bail consideration. The Authority found the procedures of the Immigrants and Emigrants Act 1949 (Sri Lanka) that the applicant would be subject to as a returnee are a non-discriminatory application of a law general application and do not constitute persecution within s 5(H)(1) or s 5(J)(1) of the Act.

16. The Authority found the applicant does not have actual or perceived links to the LTTE and would not be of concern to the authorities on return to Sri Lanka. The Authority was not satisfied the applicant faced a real chance of harm as a returnee and failed asylum seeker, or as a Tamil who departed Sri Lanka illegally. The Authority found the applicant does not have a well-founded fear of persecution.

17. The Authority found the applicant failed to meet the requirements of the definition of a refugee in s 5(H)(1) of the Act. The Authority found the applicant failed to meet the criteria in s 36(2)(a) of the Act.

18. 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 does meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 8 November 2016. On 14 December 2016, a Registrar made orders giving the applicant an opportunity to put on amended application, affidavit evidence and submissions. No such documents were filed.

2. 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.

3. From the bar table, the applicant maintained that what he had told the Department was the truth and that he could not safely return back to Sri Lanka. The applicant also referred to the changed political turmoil that had occurred in Sri Lanka and asserted that it was unsafe for him to return. The applicant maintained that he had submitted all his claims and that they had not been properly considered.

4. The Authority’s reasons reflect a comprehensive and orthodox consideration of the applicant’s claims and evidence and the making of dispositive findings that were open to the Authority for the reasons given by the Authority as summarised above. No claim has been identified by the applicant that the Authority failed to consider or failed to make a dispositive finding. The Court is not in a position to make fresh findings of fact in relation to the merits. The current situation perceived by the applicant in Sri Lanka is not a basis upon which this Court can find that there was any relevant error by the Authority.

5. I accept the first respondent’s submissions that the applicant’s submissions from the bar table, in substance, invited the Court to engage in merits review. This Court, as indicated, cannot review the merits. No jurisdictional error arises by anything said by the applicant from the bar table.

The grounds

1. The grounds in the applicant are as follows:

   1. The assessor failed to properly consider all of my claims.

   2. The assessor didn’t give me a chance to comment on one aspect of my claims.

Ground 1

1. In relation to ground 1, there is no claim that has been particularised or identified by the applicant that was not properly considered. On the face of the material before the Court, the Authority took into account the applicant’s Tamil ethnicity, his illegal departure and the concern in respect of an imputed LTTE profile, as well as the applicant’s personal circumstances and history in that regard. On the face of the material before the Court, the Authority had a real and meaningful engagement with the applicant’s claims and evidence. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant did not advance any new information to the Authority when given the opportunity to do so. The review by the Authority was one under Part 7AA of the Act and there was no obligation upon the Authority to invite the applicant to attend an interview or give further information. No new issue has been identified of a kind enlivening any obligation that required consideration under s 473DC of the Act. Under the statutory regime, the Authority was not required to invite the applicant to comment on his claims or expand upon the same beyond the opportunity that was given to the applicant by the Authority at the time of informing the Applicant that the matter had been referred to the Authority for review. The applicant did not take advantage of that opportunity to put on any submissions or new information.

2. On the face of the material before the Court, the review was conducted by the Authority in accordance with the statutory regime. No relevant error arises by reason of the applicant’s complaint that he was not given an opportunity to comment by the Authority in the circumstances of the present case. No jurisdictional error is made out by ground 2.

Conclusion

1. As the application failed to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  20 February 2019