EAM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1264

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1264

File number(s):	SYG 2678 of 2019
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	2 June 2021
Catchwords:	MIGRATION – application to review decision of the Immigration Assessment Authority – no jurisdictional error established – application dismissed
Legislation:	Migration Act 1958 (Cth), s 36
Number of paragraphs:	12
Date of hearing:	2 June 2021
Place:	Parramatta
Appearing for the Applicant:	In person with the assistance of an interpreter
Appearing for the First Respondent:	Ms Balakrishnan
Solicitors for the First Respondent:	Australian Government Solicitor

ORDERS

SYG 2678 of 2019

BETWEEN:

EAM19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	2 JUNE 2021

THE COURT ORDERS THAT:

1.The application for judicial review filed 16 October 2019 is dismissed.

2.The applicant is to pay the first respondent’s costs fixed in the amount of $5,500.

REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)

JUDGE OBRADOVIC:

1. Before me is an application for a judicial review of a decision of the Immigration Assessment Authority (“the Authority”) dated 25 September 2019. At the hearing today, the applicant appeared in person and was assisted by an interpreter. Despite being granted the opportunity to file written submissions, the applicant had not done so in compliance with Court orders. The first respondent had filed its written submissions which were relied upon at the hearing today.

2. The applicant was given the opportunity at today’s hearing to make oral submissions and to explain to the Court why he asserted that the Authority’s decision was affected by legal error. It was explained to the applicant that the Court could only consider whether the Authority had erred by way of jurisdictional error and that the Court could not conduct a merits review of the Authority’s decision.

3. The only submissions which the applicant made to the Court were to the effect that if he goes back to his country of origin, he will have a problem; that he had made a number of claims to the Authority which the Authority did not accept. The applicant submitted that since the Authority’s decision things have changed in his country, that the same government that he feared is now back in power and that he fears for his life.

4. These are not submissions that relate to the grounds of the application, being the decision of the Authority being affected by legal error. But rather, a plea to the Court that it should review the merits of the applicant’s visa application; something which the Court is not permitted to do. The applicant did not have anything to say in relation to his assertion that the decision of the Authority was affected by legal error.

5. The Authority affirmed a decision of the delegate of the Minister who refused to grant the applicant a safe-haven enterprise visa.  The relevant chronology is as follows:

   a.The applicant is a citizen of Sri Lanka who arrived in Australia on 21 October 2012.

   b.On 10 January 2013, the applicant attended an Irregular Maritime Arrival entry interview.

   c.On 10 March 2017, the applicant applied for the visa.

   d.On 3 May 2019, the applicant attended an interview with a delegate of the Minister in relation to the visa application. At that interview he provided further documents in support of his application.

   e.On 7 August 2019, the delegate refused to grant the visa. A copy of that decision was sent by post to the applicant’s address in Pendle Hill which he had provided to the Department by email on 9 November 2017.

   f.The delegate found that the applicant was not a credible witness and did not accept his claims (i) to be a candidate for the United Socialist Party (“USP”), (ii) to have been threatened due to his involvement with the USP, (iii) that he was asked for a van by Tamil Makkal Viduthalai Pulikal (“TMVP”) members and refused to provide it, or (iv) that TMVP members threatened his mother. The delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958, or that the complementary protection provisions in s 36(2)(aa) applied.

   g.On 9 August 2019, the matter was referred to the IAA.. That day the IAA wrote to the applicant acknowledging the referral. On 11 August 2019, the applicant emailed the IAA requesting assistance and saying that he had not received the delegate’s decision. On 12 August 2019, the IAA emailed a copy of the delegate’s decision to the applicant.

   h.On 9 September 2019, the applicant was invited to comment on country information. He was told to provide comments by 23 September 2019, and he was told that if he did not provide comments within that timeframe that a decision may be made without taking any further action to obtain his views.

   i.No further information was provided and on 25 September 2019, the IAA affirmed the decision under review.

   (References omitted)

   (Adopted from the first respondent’s written submissions filed on 19 May 2021 at [3] to [11])

6. Further, a summary of the protection claims made by the applicant may be summarised as follows:

   a.The applicant’s claims are found in (i) a statement accompanying his visa application and (ii) statements he made during his protection visa interview, which are set out in relevant part in the delegate’s decision and the IAA’s decision.

   b.In his written statement, the applicant claims to fear harm from the TMVP, Karuna Group, the CID and the Sri Lankan authorities. That fear was said to be based on the following claims:

   i.The applicant raised the Liberation Tigers of Tamil Eelam (“LTTE”) flag when he was a student and he was shouted at by Sri Lankan police.

   ii.The applicant was involved in the USP, including putting up banners and distributing information. He considered running as a candidate. At an interview he advised that he was a candidate but that he quit the party prior to the election.

   iii.In 2012, TMVP officials requested the use of his van, and he decided not to provide it to them. He did not tell them they could not have it, but instead went to the hill country for a number of weeks. His mother told him that men had come looking for him and threatened to kill him. At the interview before the delegate, the applicant said that he told the TMVP officials that he would not lend them the van.

   iv.At the interview before the delegate, the applicant claimed that the TMPV officials told him in 2012 to support the TMVP, rather than the USP.

   v.The applicant fears harm from the CID because he considers that TMVP officials may have told the CID officials that he is not supportive of the government.

   vi.The applicant also claims to fear harm as a person who left illegally, which would give him an anti-government profile.

   vii.The applicant also referred to the 2019 Easter Sunday terrorist attacks occurring near his home.

   (References omitted)

   (Adopted from the first respondent’s written submissions filed on 19 May 2021 at [12] to [13])

7. The Authority’s decision made a number of findings which were different to the decision of the delegate, but ultimately the Authority was not satisfied that the applicant should be granted the visa he applied for because he did not meet the relevant criteria.

8. The Authority’s decision may be summarised as follows:  

   a.It accepted that the applicant was involved in the USP for a period in 2012 and that he took some steps to run as a candidate for that party but never contested an election. It was satisfied that the applicant’s decision not to proceed to stand as a USP candidate was motivated in part due to threats from members of the TMVP.

   b.It accepted that the applicant was subjected to threats from members of the TMVP who sought access to the van he drove in 2012.

   c.It accepted that one of the Easter Sunday bombings occurred in Batticaloa, the applicant’s home.

   d.It was satisfied that the Sri Lankan government may assume that, due to the applicant’s mode of departure, he sought asylum from Sri Lanka in Australia.

   e.There was no suggestion that the TMVP have sought to contact either the applicant or his family since his departure from Sri Lanka over 6 years ago. The IAA also noted that, based on country information, the TMVP is no longer operating as an active paramilitary group and has not been for a number of years.

   f.It was not persuaded that the applicant’s previous denial of the van to the TMVP or his USP involvement, both of which occurred a number of years ago, would cause him to be of any interest to the Sri Lankan authorities.

   g.It noted that the reports before it did not suggest that Tamils are currently at risk of harm in Sri Lanka purely on account of their race, religion or language.

   h.It was not satisfied that the applicant’s involvement in raising the flag of the LTTE while still a student ever attracted any ongoing official interest. It noted that the applicant has never suggested that this incident caused him any problems, and it was noted that there have been no apparent consequences in the 10 years since the flag raising occurred.

   i.Although it considered the applicant’s claims that he would face discrimination as a Tamil and struggle to survive outside his hometown of Batticaloa, the IAA found that, were the applicant to return to Sri Lanka, he would return to Batticaloa, where he lived for the entirety of his life in Sri Lanka and where his family continues to reside.

   j.It noted that the applicant had not suggested that he has had any political involvement in Australia at all, and had given no indication that he would seek to become politically active were he to return to Sri Lanka. There was no suggestion that any of the applicant’s family members in Batticaloa have been contacted by anyone regarding the applicant’s previous political activities.

   k.Considering the applicant’s claims separately and cumulatively, it was not satisfied that the applicant faced a real chance of any harm because of any of those reasons in the foreseeable future were he to return to Sri Lanka, including for any reasons related to his ethnicity or past political activities.

   l.It was not satisfied that the 2019 Easter bombings are indicative of any real chance of future harm to the applicant for any reason.

   m.The material before it did not indicate that a person with the applicant’s background has a real chance of harm on return to Sri Lanka because they requested asylum in another country.

   n.It accepted that there is a chance as a returning asylum seeker that the applicant may experience some stigma, some challenges obtaining employment and may be visited by the authorities. However, noting the applicant continues to enjoy familial support, is educated and has shown a propensity to secure employment, that country information does not indicate returnees visited by the authorities are routinely harmed, and considering that the applicant does not have a profile of interest with the Sri Lankan authorities, it did not consider that there is a real chance of such treatment amounting to serious harm.

   o.It accepted that, given his illegal departure, the applicant may be arrested and charged, and enquiries may be made about his departure and his activities while abroad. Taking into account country information, it found that the applicant would not be returning to Sri Lanka with an adverse profile that would be of interest to authorities, and there was nothing to suggest that there would be extant criminal charges or proceedings against him.

   p.It was not satisfied that there was any reason the applicant would not be granted bail in the event that he pleads not guilty to departing Sri Lanka illegally, and was not satisfied that the applicant could not pay a fine and manage arrangements for court appearances if further appearances are required. It did not consider that questioning, any surety imposed or reporting conditions, the imposition of fines or any other costs associated with the applicant’s court appearances and possible short term detention would constitute serious harm, or that the applicant will face serious harm during returnee processing.

   (Adopted from the first respondent’s written submissions filed on 19 May 2021 at [14])

9. There is nothing apparent from the decision record that would lead the Court to make a finding that the Authority’s decision is affected by legal error. In its decision and reasons, which go for some nine pages, the Authority carefully considered and dealt with each of the applicant’s claims for protection. The Authority, as already noted, came to a different conclusion about some of the assertions made by the applicant, that is, it did not reject the applicant’s claims on the basis of credibility but, rather, went on to assess whether the underlying claims gave rise to any protection obligations. 

10. The Authority invited the applicant to comment on country information which the applicant did not do. The applicant did not seek to put on any submissions or new information, and he had not responded to the request for information made by the Authority.

11. The Court is therefore not satisfied that the applicant has made out a claim for jurisdictional error. The applicant’s application contains a bare claim that the decision of the Authority is affected by legal error and, notwithstanding the opportunities that he was given, the applicant was not able to articulate or provide any particulars as to how the Authority’s decision was affected by legal error.

12. In all of the circumstances, the Authority, the Court finds, acted reasonably in finalising the review in the manner and in the way that it did. For those reasons, the application for review filed on 16 October 2019 is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 24 June 2021