EAU16 v Minister for Immigration

[2017] FCCA 2196

FEDERAL CIRCUIT COURTOF AUSTRALIA

EAU16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2196

Catchwords:

MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise – applicant is a citizen from Sri Lanka – application of SZTAL – no basis to find that the Authority misconstrued or misapplied s.5J or s.36(2A) – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, Part 7AA, 476

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: EAU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3696 of 2016

Judgment of: Judge Street

Hearing date: 11 September 2017

Date of Last Submission: 11 September 2017

Delivered at: Sydney

Delivered on: 11 September 2017

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3696 of 2016

EAU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 6 December 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and arrived in Australia on 25 September 2012 as an unauthorised maritime arrival.  The applicant first applied for a protection visa on 5 September 2013, which was deemed to be an invalid application. The applicant applied for a Safe Haven Enterprise visa on 23 November 2015. 

3. The applicant claimed to fear harm as a Tamil from the Northern Province, and that he had been imputed with a pro-LTTE and anti-government opinion due to his profile. The applicant feared harm as a failed asylum seeker, and claimed that the harm he faced on return was heightened due to his past record of being physically harmed and monitored as a Tamil with a suspected LTTE profile. The applicant claimed he was detained and physically harmed by the Sri Lankan Army in May 2009. The applicant claimed he was subsequently required to report to the Sri Lankan army on about 30 occasions between 2009 and when he left Sri Lanka in September 2012. The applicant alleged that he was beaten during an interrogation in February 2011 by a Sri Lankan Army officer. The applicant alleged that in March 2012 he went into hiding, and that the Sri Lankan Army visited his house and enquired after him.

4. On 25 August 2016, a delegate refused the applicant’s application for a visa. The delegate found that the applicant was not a person of interest to the Sri Lankan authorities when he departed Sri Lanka and found the applicant failed to meet the criteria under the Migration Act.

The Authority’s decision

1. On 29 August 2016, the Authority wrote to the applicant, identifying that the matter had been referred to the Authority for review. The Authority identified that there were only limited circumstances in which the Authority could receive new information. The letter attached a fact sheet and practice direction, and gave the applicant an opportunity to put on new information and to put on submissions. On 18 September 2016, the applicant provided submissions and further country information to the Authority. 

2. The Authority identified having regard to the material referred by the Secretary under s.473CB of the Migration Act and made express reference to the applicant’s submission. The Authority found that the country information did not meet exceptional circumstances to justify considering the new information, and had regard to the applicant’s submission.

3. The Authority summarised the applicant’s claims. The Authority set out the applicable law in an annexure to its decision. The Authority summarised in detail the applicant’s alleged problems and the applicant’s claims and evidence. The Authority identified, having considered the applicant’s arrival interview and his 2013 and 2015 applications and written statements and his evidence from the Safe Haven Enterprise Visa interview, that the Authority had concerns about the truthfulness of some aspects of the applicant’s evidence. 

4. The Authority found in view of the significant changes and inconsistencies in the applicant’s evidence, the Authority was satisfied the applicant had embellished some aspects of his evidence in order to enhance his protection claims. The Authority did not accept the applicant was subject to any physical mistreatment such as being kicked and slapped, when he reported to SLA after his May 2009 hospitalisation or that he was in hiding before he left Sri Lanka. The Authority found that the authorities had made no enquiries about the applicant after approximately March 2012. 

5. The Authority accepted that the applicant would be found to be a failed asylum seeker who departed illegally by the Sri Lankan authorities. 

Consideration of refugee convention criteria

1. The Authority found there was not a real chance the applicant would, as a Tamil male from the north, face societal discrimination amounting to serious harm upon his return to Sri Lanka now or in the reasonably foreseeable future. 

2. The Authority was not satisfied the applicant will face a real chance of harm from the Sri Lankan authorities due to any suspected links to the LTTL on return to Sri Lanka now or in the reasonably foreseeable future.

3. The Authority was not satisfied there is a real chance the applicant would face harm on his return as a failed asylum seeker. The Authority found that based on country information, the applicant may be detained and questioned at the airport for up to 24 hours, face a fine for breaching the Immigrants and Emigrants Act and, depending on the availability of a Magistrate at the time, if he is charged under the Immigrants and Emigrants Act, the applicant may face a short period of being held in prison. 

4. The Authority was satisfied the applicant would face only a brief period in detention. The Authority took into account the poor prison conditions, but did not consider that a brief period of one to three days in detention would constitute the necessary level of threat to his life or liberty, or to significant physical harassment or ill treatment under s.5J(5) of the Migration Act or otherwise amount to serious harm for the applicant.

5. The Authority made reference to the brief period of detention and found that the likely questioning of the applicant by the DoIE, SIS or CID at the airport on arrival, any surety imposed, or the imposition of a fine under the Immigrants and Emigrants Act did not constitute a threat to his life or liberty, or to be significant physical harassment or ill treatment under s.5J(5) of the Migration Act or to otherwise amount to serious harm.

6. The Authority found that the Immigrants and Emigrants Act is a law that is not discriminatory on its terms and found that there is nothing to suggest that the law is selectively enforced or that it is applied in a discriminatory manner. The Authority found that the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act would be the result of a law of general application and does not amount to persecution for the purpose of s.5H(1) or .5J(1) of the Migration Act.

7. The Authority was not satisfied the applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka legally now or in the reasonably foreseeable future. 

8. The Authority addressed the applicant’s circumstances cumulatively, and was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, either in the period following his arrival or on his return home, whether because of his illegal departure, having made a claim for asylum in Australia, for any links to the LTTE, as a Tamil male from the north, or any combination of these. The Authority found that the applicant does not have a well-founded fear of persecution of the meaning in s.5J of the Migration Act.

9. The Authority found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act and failed to meet the criteria under s.36(2)(a) of the Migration Act.

Consideration of complementary protection criteria

1. The Authority then turned to the issue of complementary protection. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka there was a real risk that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

1. The sole ground in the amended application is as follows:-

   The IAA misconstrued or misapplied ss5j and S36(2A) of the Migration Act 1958 (Cth) (the Act) and erred in holding that the applicant being held in poor prison conditions for a brief time did not amount to significant harm for the purpose of the Act.

   Particulars

   a) The IAA found that the applicant could be subject to imprisonment upon on his return to Sri Lanka [42]; [60].

   b) The IAA noted that general prison conditions in Sri Lanka;

   a. do not meet international standard; (42];

   b. have been reported as not meeting these standards because of a lack of resources, overcrowding and poor sanitary conditions; (42]; (60].

   c. The IAA found based on that evidence, there was no intention to inflict pain and suffering, severe pain and suffering or extreme humiliation as a result of any brief detention (among other things); 60],

   d. The IAA should have held that pain or suffering is intentionally inflicted by the act or omission of a person where a person does an act or omission knowing it is possible that pain or suffering will result

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Authority’s decision was unlawful or unfair.

3. The Court explained that if it was satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and the hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

The Applicant’s submissions from the bar table

1. From the bar table, the applicant explained that he would have a lot of problems at the airport and thereafter if he was returned to Sri Lanka.  The applicant made reference to what was happening in the newspaper every day, and alleged that people were being questioned and gaoled and that is why he did not want to go back. I accept the submissions of the first respondent that the applicant’s submissions in substance invited the Court to engage in an impermissible merits review.

2. This Court has no power to review the merits or to make fresh findings of fact. The applicant also asked for an opportunity to have one more chance before the Authority. This Court has no power to grant relief on compassionate grounds. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration

1. The sole ground raised in the amended application in respect of which the applicant filed submissions in support was in substance to seek to raise an SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 ground. The High Court of Australia delivered its decision dismissing the appeal from the decision of the Full Court of the Federal Court. Accordingly, there is no basis to find in the present case that the Authority misconstrued or misapplied s.5J and s.36(2A) of the Migration Act.

2. Further, it is apparent that the Authority took into account the present conditions and made findings that were open to the Authority on the material before the Authority. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review under Part 7AA.

3. On the face of the material before the Court, the Authority complied with its obligations of procedural fairness in the conduct of the review under Part 7AA by giving the applicant an opportunity to put on submissions and new information and by taking into account the submissions made. The amended application fails to make out any jurisdictional error. Accordingly, the amended application is dismissed.

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

Date: 5 October 2017