EAV16 v Minister for Immigration
[2018] FCCA 2071
•11 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EAV16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2071 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred by failing to address the question of real chance of persecution upon return to Sri Lanka – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2), 65, 473CA, pt.7AA Other materials cited: |
| Cases cited: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 |
| Applicant: | EAV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3697 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 11 July 2018 |
| Date of Last Submission: | 11 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3697 of 2016
| EAV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 6 December 2016. The applicant is a citizen of Sri Lanka who arrived in Australia by sea on 26 September 2012 and lodged an application for a protection visa on 11 December 2015.
His claims focused in the first instance upon a period from 2008 in which there was a marked deterioration in the circumstances of the civil war. In particular, the applicant claimed that the Sri Lankan Army had come to his house and assaulted him and his mother and that he was taken into detention on a number of occasions, essentially because of his ethnicity and where he lived.
The applicant also claimed that in June 2012 he was assaulted in his house by drunken soldiers. He claimed that he feared harm as a Tamil and in particular from being from an area formerly controlled by the Liberation Tigers of Tamil Eelam (LTTE). In addition, he claimed that he faced harm upon return to Sri Lanka because he had left that country illegally and had sought protection in Australia.
On 24 August 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was referred to the Authority under s.473CA of the Migration Act 1958 (Cth). The Authority’s duty under pt.7AA of the Act was to review the decision of the delegate. The content of that decision will be considered later in these reasons.
For present purposes it is necessary only to note that the Authority essentially accepted the applicant’s factual claims, but found on the basis of the current circumstances in Sri Lanka that the applicant did not have a real chance of persecution upon return there and for that reason did not satisfy the criterion in sub-s.36(2)(a) of the Act.
On the basis of the same findings of fact, the Authority was also not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk he would suffer significant harm and so does not satisfy the criterion in sub-s.36(2)(aa) of the Act. For those reasons, the Authority affirmed the decision not to grant the applicant a protection visa.
There are two grounds in the applicant’s application for review. The applicant only presses the first ground. Essentially, the ground comes down to the argument that the Authority did not address the question of whether the applicant faced a real chance of persecution in Sri Lanka in the reasonably foreseeable future, in other words that the Authority did not address the question posed by the legislation. This argument was framed by reference to the Authority’s consideration of the criterion in sub-s.36(2)(a) but the same point goes to the criterion in sub-s.36(2)(aa) essentially because the Authority applied the same reasoning to its consideration of that section.
The obligation of the Authority to review the delegate’s decision is, in effect, to determine for itself on the basis of the material before it, whether the applicant satisfied the criteria for the grant of a visa. This arises because of s.65 of the Act, which is the central provision in the provisions relating to the scheme for the grant of visas.
The relevant criteria is sub-s.36(2)(a) which provides that a criterion for protection visa is that the applicant for the visa “is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee”. Refugee is defined for the purposes of the Act by s.5H of the Act which I set out below:
Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality--is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
(2)Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a)the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b)the person committed a serious non-political crime before entering Australia; or
(c)the person has been guilty of acts contrary to the purposes and principles of the United Nations.
(Emphasis in original)
It can be seen that that definition derives fairly closely from Article 1A(2) of the Refugees Convention[1].
[1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).
Section 5J goes on to define the phrase “well-founded fear of persecution”. Subsection (1) provides that the person has a well-founded fear of persecution if:
...
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
It may be noted, although it is not critical to the reasons for this decision, that there is no mention in s.5J, or elsewhere in the Act of “reasonably foreseeable future”.
The reference to reasonably foreseeable future derives from considerations by the High Court and the Full Court of the Federal Court of the term in Article 1A(2) of the Convention, “well-founded fear of persecution”. In Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 that phrase was found to mean that there has to be a real chance of persecution and in particular, that is to be understood as a real chance of being persecuted in the reasonably foreseeable future.
That said, the reference to “reasonably foreseeable future” is no more than an explanation of the task to be undertaken in assessing whether there is a well-founded fear of persecution, and as it is currently understood pursuant to s.5J of the Act, that means whether there is a real chance of persecution. It is not a freestanding test. The concession made by the applicant that there is no magic in the words “reasonably foreseeable future” is thus well made.
That said, the applicant’s argument is essentially based upon two things: first of all, that the Authority did not refer to the reasonably foreseeable future anywhere in its reasons; and, secondly, that at [19] of its decision it stated, having accepted that certain events claimed by the applicant had taken place, that it was not satisfied that the applicant “now faces a real chance of harm on the basis of these events or on the basis of being a Tamil”.
It highlights the context of that passage as being where the Authority was deciding a central issue, namely, the applicant’s fear of harm on the basis of his Tamil ethnicity. For that reason, he says the focus upon the immediate present shown by the use of the word “now” attains an important and central role in the whole of the Authority’s reasons.
While the applicant does rely upon the absence of reference to the words “reasonably foreseeable future”, he does so only to the extent that it is an indication that the Authority has not looked past the immediate present, or at least the immediate circumstances, of the applicant arriving back into Sri Lanka. These arguments are to be rejected.
It is important to bear in mind in reviewing any reasons of an administrative decision-maker that they are to be seen, like any written document, as a whole and read in context. Part of the context is that the decision-maker is not only busy, but is not necessarily a trained lawyer and is not operating as a court and for that reason, its reasons are not to be scrutinised as one might scrutinise the reasons of a court (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
It appears to me that the applicant’s arguments however, rely upon a parsing of the Authority’s reasons rather than an holistic and proper reading, as encouraged by the High Court in Wu Shan Liang and other courts in many other cases since. Nevertheless, it remains necessary to examine in some detail the Authority’s reasons to show that it properly understood and applied the task before it.
The starting point is that, at [6] of its reasons, the Authority accepted that Sri Lanka was the receiving country. “Receiving country” is a phrase used in the definition of a refugee, but it is important because it reveals that from the beginning the Authority was acting on the hypothesis that the applicant would be returning to Sri Lanka. Necessarily, that was that sometime in the reasonably foreseeable future, the hypothesis being that the applicant would be refused a visa. That is the hypothesis required by the criterion in sub-s.36(2)(a). The Authority then, at [7] through to [11], indicates its acceptance of a number of the applicant’s claims. It then proceeds to assess whether the applicant meets the criterion: firstly, in sub-s.36(2)(a) and ultimately in sub-s.36(2)(aa) of the Act.
In respect of sub-s.36(2)(a) the Authority sets out at [12] and [13] an unremarkable and accurate summary of the requirement of the Act in ss.5H and 5J, each of which referring respectively to a well-founded fear of persecution and, under s.5J, the real chance test. It has been noted in the first dot point at [13] that the Authority states that the question is whether “there is a real chance that the person would be persecuted”, those emphasised words necessarily being words referable to the future.
At [14] and [15] the Authority again indicates its acceptance of certain claims made by the applicant. At [16] it assesses, in light of country information from the UNHCR[2], the risk of harm that the applicant might face in light of a cousin who had been conscripted into the LTTE. It concludes at the bottom of [17] that the applicant did not face a “real chance of harm from Sri Lankan authorities”, once again using the words taken directly from s.5J.
[2] United Nations High Commissioner for Refugees.
Those words again, are used at [18] when the Authority considers the possible impact of increased paramilitary activity in Sri Lanka, and again also uses the conditional verb “would suffer” indicating, again, a forward looking approach.
Paragraph 19 is the paragraph, as I have said, that is relied upon particularly by the applicant and in particular, the applicant relies on the use of the words “now faces” in the ninth line of that paragraph.
In the context, however, the use of the word “now” can be seen to be a contrast to the apparent acceptance by the Authority of the harm that had already come to the applicant in the past. So rather than indicating that its findings only concerned the immediate present, the use of the word is consistent with a consideration by the Authority of a reasonably foreseeable future. Again, in the same sentence the Authority uses the words “real chance” to indicate its findings. That finding is repeated at the bottom of [20] and [21].
At [22], the Authority moves to consider the possibility of harm that the applicant faces as an illegal departee from Sri Lanka and as a person having sought asylum. Paragraphs [22] to [29], are focused on the future and based upon reasonable inferences drawn from the material before it. In the first sentence of [22], the Authority accepts that the applicant may be perceived to be a failed asylum seeker, something clearly addressing the future. The whole of this passage, as I have said, is on the hypothesis of the applicant returning to Sri Lanka. He is amongst the class that the Authority refers to as “returnees”. At [26] the Authority makes this pellucidly clear by accepting that the applicant “may be charged” and that he “may be held” and he “will be subject” and “will face”. The future tense is also used numerous times at [27] and [29].
That overview of the Authority’s reasons in respect of the refugee criterion in sub-s.36(2)(a) reveals, first, that the Authority posed the correct question (see [12] and [13]); secondly, addressed the correct question by determining what had happened in the past (see in that respect Wu Shan Liang and Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559); and thirdly, then determining from past events, as well as relevant country information, what would be likely to occur in the future. That future aspect of its consideration was clear from its language, and in particular, when it is understood in its context, the use of the word “now” at [19] in no way undermines the conclusion about the Authority’s focus on the future.
For all of those reasons, the first ground in the application is rejected.
Conclusion
The applicant has not established the Authority’s decision is affected by jurisdictional error and the application must be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 31 July 2018
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