DNL18 v Minister for Home Affairs

[2019] FCCA 592

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNL18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 592

Catchwords:
MIGRATION – Application for safe haven enterprise visa – country information relied upon – fear of harm unwarranted – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss. 7A, 473CA, 473CB, 5H(1) , 5J, 36(2)(a), 36(2)(aa)

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: DNL18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 679 of 2018

Judgment of: Judge Egan

Hearing date: 20 February 2019

Date of Last Submission: 20 February 2019

Delivered at: Brisbane

Delivered on: 20 February 2019

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms Reid of Clayton Utz

ORDERS

1. The application for review filed on 6 July 2018 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 679 of 2018

DNL18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Indian citizen. On 18 April 2013, the applicant arrived in Australia by boat (boat ID: NWK092) as an unauthorised maritime arrival. On 11 July 2016, he applied for a Safe Haven Enterprise visa (“SHEV”). On 13 February 2018, a delegate of the Minister refused the application for the SHEV. Because the decision of the delegate was a fast track decision, it had to be referred to the Immigration Assessment Authority (“the Authority”) for review under part 7A of the Migration Act 1958 (Cth) (“the Act”). On 16 February 2018, the Minister referred the delegate’s decision to the Authority, and the secretary provided the Authority with the review material pursuant to its obligation to do so under sections 473CA and 473CB of the Act.

2. On 16 February 2018, the Authority wrote to the applicant to acknowledge the referral and to provide the applicant with certain information concerning the Authority proceedings, as well as new information.  On 27 February 2018, the applicant’s representative wrote to the Authority requesting a copy of the acknowledgement letter.  On 28 February 2018, the Authority responded to the applicant’s representative, attaching the requested documents.

3. New information was provided to the Authority on 4 March 2018 by the applicant’s representative. The Authority had regard to that information and the material provided by the secretary pursuant to section 473CB of the Act. On 12 June 2018, the Authority affirmed the delegate’s decision. On 6 July 2018, the applicant filed an application for review of the decision of the Authority. There was only one (1) ground of review, which was as follows:

   The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.

4. The first respondent is not taking the obvious point that the grounds for the application for review are so lacking in particularity that the application should be dismissed on that basis alone. The applicant’s claims for protection were set out in paragraph [8] of the reasons of the Authority and are as follows:

   ·The applicant is from Nagapattinam District, Tamil Nadu where he was born on 24 April 1989 and lived until he left for Australia.

   ·After he completed his education he worked as a fisherman from 2008 until 2013.

   ·In March 2013 he was offered payment by a friend to help drive a boat of Sri Lankan asylum seekers from Kerala in India to Australia.

   ·He went Kerala and, due to the number of passengers, decided that the trip would be dangerous and he declined to do it. He claims the passengers begged him to take them so they could be reunited with their families and he agreed to drive the boat without payment. He did not organise the journey nor did he organise the people.

   ·He is frightened he will be charged under section 370 of the Indian Penal Code that refers to the trafficking of people and has severe penalties.

   ·He is at increased risk of harm because he departed the country illegally and would be considered to be failed asylum seeker.

   ·Since his arrival in Australia he has become a member of the Tamil Eelam Cricket Club. The team, its members and those who promote the team are likely to be of concern to both the Sri Lankan and Indian authorities due to the team’s affiliation with the Tamil Eelam Tiger emblem.

   ·He participated in Mullaivaikal memorial services in Australia to remember the Sri Lankan war victims.

   ·His Facebook posts reflects his involvement in pro-Tamil activities and he will subject to persecution by the Indian authorities on his return because of this.

5. At [9] of its reasons, the Authority set out the criteria for satisfaction of refugee status, pursuant to the provisions of section 5H(1) of the Act. At [10] of its reasons, the Authority noted that under section 5J of the Act, a consideration of whether a person had a “well-founded fear of persecution” involved a number of components, namely, that:

   ·the person fears persecution and there is a real chance that the person would be persecuted

   ·the real chance of persecution relates to all areas of the receiving country

   ·the persecution involves serious harm and systematic and discriminatory conduct

   ·the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion

   ·the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and

   ·the person does not have a well-founded fear of persecution If they could take reasonable steps to modify their behaviour, other than certain types of modification.

6. It is to be noted that in this matter the applicant provided new material to the Department on 4 March 2018.  Such material included written submissions prepared by the applicant’s representative, a copy of the Indian Penal Code, as well as an extract from such Code.  At [3]-[7] inclusive of the Authority reasons, the Authority noted that it had regard to the contents of the information provided to it by the applicant, or on the applicant’s behalf.  It noted that it had regard to the written submissions prepared by the applicant’s former representative, but that it did not have regard to the Indian Penal Code or the unidentifiable extract of the Penal Code provided.

7. At [13]-[23] of its reasons, the Authority set out in clear and cogent terms its analysis of the applicant’s claims, based as they were on alleged factual information.  It recorded that the applicant claimed that he was vulnerable to harm on his return to India because he was a young, single man who agreed to be an additional boat driver to take Sri Lankan Tamil asylum seekers and refugees to Australia.   The applicant claimed that in March 2013, a Sri Lankan Tamil man had asked him and his friend to help drive a boat from India to Australia.

8. He claimed that the boat passengers were the husbands of wives and children who had previously been sent to Australia.  The applicant claimed that he was daunted when initially seeing how many people there were to be taken to Australia, but that he agreed to do it for humanitarian reasons, saying that he was not paid for the journey.  He claims that he did not organise the journey, or that he organised the people who were aboard.  It was noted that the applicant had consistently claimed that he was wanted for his skill as a fisherman and to help drive the vessel.

9. At [14] of its reasons the Authority found that it was implausible that the applicant would leave his family and fishing business to undertake a dangerous journey without obtaining some benefit.  It was accepted by the Authority that the applicant was a member of a particular social group of people who were involved in people smuggling.  The applicant was recorded at [15] of the Authority reasons to be fearful that he would be charged under section 370 of the Indian Penal Code that referred to trafficking of people, and which attracted severe penalties amounting to serious harm should he be returned to India.

10. After having referred to the provisions of section 370 of the Indian Penal Code at [15] of its reasons, the Authority found that the applicant’s description of the people smuggling venture that he was involved in did not indicate that such a venture was carried out for the purpose of exploitation, either physical, sexual, in the nature of slavery, or otherwise.  The passengers on the vessel were found not to have been coerced or otherwise induced into agreeing to travel by boat from India to Australia.  The Authority therefore found that the people smuggling venture would not fall under the umbrella of section 370 of the Indian Penal Code.

11. It was recorded at [16] of the Authority reasons that the applicant had not pointed to any other provision of the Indian criminal law that related to people smuggling.  Country information about people smuggling in India differentiated that practise from people trafficking.  On that basis, the Authority had not considered the penalties for trafficking of people in India as it was not considered that the applicant would be charged, penalised or otherwise subject to any harm on that basis.

12. At [17] of the Authority reasons, it was noted that the applicant had claimed that he was a member of a cricket club in Brisbane which contained both Tamil Sri Lankan and Indian players, suggesting that such involvement would have been noted adversely by both Indian and Tamil authorities.  The Authority found that the applicant had not presented any information to indicate that the Indian authorities had any concern about Indians in the Tamil diaspora playing cricket with the particular cricket club which had been mentioned by the applicant, or which had possibly involved association with the tiger emblem.

13. At [18] of its reasons, the Authority noted that the applicant had made Facebook posts which might be considered as indicating that he was pro-Tamil, but no evidence was provided to support his claims that that would result in any well-founded fear of persecution should he be returned to India.  The Authority found that the material provided did not suggest that there was any ban on people supporting political activity of the type described by the applicant, nor that it constituted the basis for, or explanation of, the arrest of anyone referred to in the article.

14. It was also recorded that the applicant had presented no evidence that in the state of Tamil Nadu, to which the applicant would be returned, the authorities would persecute people who had sympathies towards Sri Lankan Tamil organisations, including the Liberation Tigers of Tamil Eelam (LTTE).  It was found at [19] of the Authority reasons that the applicant’s actions in playing cricket in a Tamil cricket team, attending a Sri Lankan memorial, or posting about Tamil matters on Facebook did not indicate that the applicant was involved in any organised Tamil movement, or that he could be considered as a high profile activist for Tamil rights.  The Authority did not consider that the Indian authorities were sensitive to the kind of activities that the applicant had been involved in, and it was not found that the applicant faced a real chance of harm on his return to India as a result of any pro-Tamil activities in Australia.

15. At [20]-[23] of the Authority reasons, the Authority analysed the applicant’s claims that he faced an increased risk of harm from the authorities on his return to India because he departed the country illegally, and also his claim that he would therefore be considered as a failed asylum seeker.  Country information was recorded as indicating that any delays in the processing of someone returned to a country related mainly to confirmation of an applicant’s identity, and that those delays would occur in Australia whilst the applicant organised for a travel document to be issued to him in Australia, rather than upon his arrival in India.

16. At [22] of the Authority reasons, it was recorded that country information also indicated that Indian returnees would only have difficulties on arrival if they were wanted for a political crime, or some other crime in India, in which event they would face punishment.  In this case, the applicant was not wanted for any crimes at the time he departed India, so was unlikely to face arrest upon his arrival back in India.  Any questioning by Indian authorities upon the applicant’s return to India was found not to be likely to constitute harm.  The Authority further found that it did not consider that the applicant would be suspected by the authorities in India of people trafficking, nor was it accepted that the applicant would be of interest to the authorities because of the Tamil diaspora activities of which he undertook in Australia.

17. At [23] of its reasons, the Authority found that the applicant did not face a real chance of any harm, let alone serious harm, on his return to Sri Lanka/India, on the basis of any of the refugee grounds in section 5H(1) of the Act, including his membership of a particular social group as a driver of a people smuggling vessel, or as an illegal departee and failed asylum seeker, or otherwise on the basis of his having pro-Tamil political leanings. The Authority found that the applicant did not meet the refugee criteria requirements as set out in section 36(2)(a) of the Act.

18. As to the complementary protection criteria, at [26] of its reasons the Authority set out the “significant harm” criteria as provided for in section 36(2)(a) of the Act, namely, that a person would suffer significant harm if:

    (a)  the non-citizen will be arbitrarily deprived of his or her life;  or

    (b)  the death penalty will be carried out on the non-citizen;  or

    (c)  the non-citizen will be subjected to torture;  or

    (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment;  or

(e)  the non-citizen will be subjected to degrading treatment or punishment.

1. At [27] of its reasons, the Authority found that the applicant did not face a real chance of harm for any reason, and on the material before it, the Authority was not satisfied that the applicant faced a real risk of suffering any harm, including significant harm should he be returned to India. It did not find that there were substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country, that there was a real risk that the applicant would suffer significant harm. The Authority therefore found that the applicant did not meet the criteria as set out in section 36(2)(aa) of the Act.

2. The Authority closely examined all of the material put before it by the applicant and made adverse findings in that regard.

3. It cannot be said that no other rational or logical decision-maker could not have made the same decision in respect of the way in which the decision was made by the Authority.  In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], it was said by Crennan and Bell JJ as follows:

   [130] In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under section 65, is one at which no rational or logical decision-maker could arrive on the same evidence.  In other words, accepting for the sake of argument that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. 

   The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A Court should be slow, although not unwilling, to interfere in an appropriate case.

4. Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   [66]:  This approach does not deny that there is an area within which a decision maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76]:  As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

5. The application for review is without merit.

6. The application for review is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 8 March 2019