EBC16 v Minister for Immigration

[2017] FCCA 1939

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1939

Catchwords:
MIGRATION – Application for Safe Haven Enterprise (Class XE) subclass 790 visa – whether Authority applied the wrong test – whether decision was illogical or irrational – whether decision was unreasonable – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J

Applicant: EBC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1198 of 2016

Judgment of: Judge Jarrett

Hearing date: 31 July 2017

Date of Last Submission: 31 July 2017

Delivered at: Brisbane

Delivered on: 31 July 2017

REPRESENTATION

Counsel for the Applicant: Mr Markwell

Solicitors for the Applicant: AKS Lawyers

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed 18 April 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1198 of 2016

EBC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority.  By the application, the applicant seeks the decision of the Authority be set aside. 

2. The Authority was dealing with the review of a decision of a delegate of the first respondent to refuse to grant to the applicant a Safe Haven Enterprise (Class XE) subclass 790 visa. 

3. The applicant is a citizen of Sri Lanka.  He is of Tamil ethnicity.  He arrived in Australia in 2012, as an unauthorised maritime arrival.  He participated in an entry interview in October, 2012.  The second respondent’s decision sets out the claims that he made in his entry interview.  One of those claims related to threats that he had received when he was assisting a friend of his, it seems, to run for office in some elections. 

4. The second respondent records, in paragraph 5 of its reasons for decision – accurately, in my view:

   The applicant stated that he assisted the TNA candidate, by posting flyers, hanging posters and giving out notices to the community to canvass votes.  At interview, the applicant stated that he assisted for eight days, between 1 to 8 September 2012, and indicated his level of involvement was low.  He indicated that he was never involved in public speaking and did not possess any particular influence or public profile in relation to his TNA involvement. 

   Concerning incidents of threats from the armed, unidentified men, contrary to his statement of claims, the applicant admitted that he was harassed by these men on two occasions, rather than “more than three occasions”, as indicated in his written claims.  The applicant stated the first incident occurred on 3 September 2012, while he was posting flyers with other TNA supporters. 

   The men alighted from a white van, read their TNA posters and warned them to stop their involvement with the TNA.  He stated that the second incident, on 5 September 2012, was “very dangerous”, as the men held a gun to him and threatened to him if he did not stop campaigning.  He stated that even after being threatened with the gun, he continued to post flyers and supported the TNA until the election, three days later.

5. Of that material, the second respondent accepted most of it, if not all of it.  The second respondent accepted that the applicant had assisted the TNA candidate, as he claimed to have done.  The second respondent accepted that the applicant was threatened on two occasions and that one of those occasions involved the use of a gun.  It also accepted the applicant’s evidence that, notwithstanding the threat, he continued to assist the TNA candidate.  I make particular mention of those matters because those episodes formed the core of the complaints that the applicant makes about the second respondent’s decision in this case.

6. The second respondent found that the applicant had a low level connection with the TNA.  The second respondent, notwithstanding that it accepted all of the matters to which I have just referred, determined that the applicant did not have a well-founded fear of persecution, because there was no real chance, according to the second respondent, of him facing harm should he return to Sri Lanka. 

7. The second respondent explains its decision about that matter from paragraph 15 through to paragraph 24 of its reasons for decision.  In paragraph 15 and 16, the second respondent sets out the evidence that it accepted from the applicant.

8. In paragraph 17 and 18, the second respondent refers to country information before it about the political atmosphere in Sri Lanka and the position of the TNA, which the second respondent concludes, on the basis of the information before it, now forms the major organised parliamentary opposition party in Sri Lanka.  In paragraph 19, the second respondent records that, in view of the second respondent’s finding of the applicant’s low level connection with the TNA and in the absence of any country information indicating instances of recent, politically motivated violence against persons with such low level TNA connections, the second respondent thought that the prospect of any future such adverse attention from any non-state agents to be remote.

9. The second respondent then considered some other matters and concluded, in paragraphs 24 and 25 that the applicant did not face a real chance of serious harm from the Sri Lankan authorities on account of the matters referred to by the second respondent, either now or in the foreseeable future should he return to Sri Lanka.

10. From the second respondent’s decision, the applicant brings these proceedings.  He has filed an amended application in which he sets out three grounds of review, numbered 2, 3 and 4.  The three grounds of review are stated very broadly.  The first asserts that the second respondent has misapplied the law and/or asked the wrong question, and a jurisdictional error has occurred.  Ground number 3 asserts that the second respondent’s decision is irrational and illogical and no other rational or logical decision maker would have made such a decision and, thereby, the second respondent has committed a jurisdictional error.  The third ground – ground number 4 in the amended application – asserts that the second respondent has “been unreasonable and has made a decision that is so unreasonable that no reasonable decision maker would have made such a decision, and a jurisdictional error has occurred”. 

11. Each of the grounds relies on the same particulars.  The particulars given in respect of ground 2, and which are said to support grounds 3 and 4, take up on the Authority’s acceptance, termed a “concession” in the amended application, that the applicant was threatened by unidentified people on 3 and 5 September 2012.  The particulars assert:

    The applicant has a “well-founded fear of persecution” because of his political opinion, under section 5J of the Migration Act 1958. The applicant is entitled to a protection visa under section 32 of the Act, and/or will suffer significant harm under section 36(2A) of the Act.

12. The gravamen of the written submissions for the applicant and the focus of the oral submissions from the applicant was upon the fact accepted by the Authority that the applicant was threatened with a firearm and that he was genuinely afeared because of that. 

13. The second respondent accepted that he was so threatened and so the second respondent was able to comfortably find that the applicant had a fear of harm.  But having a fear of harm is only part of the puzzle.  To secure the grant of a Safe Haven Enterprise visa, or a protection visa, for that matter, the applicant must be a refugee.  Refugee is defined in s.5H of the Act to be a person, amongst other things, who cannot return to his or her country, owing to a well-founded fear of persecution. 

14. The phrase well-founded fear of persecution is defined in s.5J of the Act. It is a tripartite definition. Section 5J(1) provides that a person has a well-founded fear of persecution if first, the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Secondly, there must be a real chance that if the person is returned to the receiving country, the person would be persecuted for one or more of the reasons I have just mentioned. Thirdly, the real chance of persecution must relate to all areas of the receiving country.

15. It seems to me that the focus of the applicant’s argument is on the first limb of that definition, whereas the second respondent’s decision is based upon the second limb of that definition. The Authority does not seem to have had any difficulty with the proposition that the applicant fears being persecuted for reasons of political opinion. He was found by the Authority to have assisted a TNA candidate and, in the course of that, he was threatened by others and, on one occasion, threatened with a gun. The submissions made on the applicant’s behalf to the effect that those matters alone were sufficient to justify the Authority finding that the applicant feared persecution are well-made, but they say nothing of the second aspect of the definition in s.5J(1) of the Act. Not only must there be fear, but there must be a real chance that, if the person is returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned earlier.

16. Those parts of the Authority’s decision to which I have referred and, in particular, paragraphs 17 and 18, are directed to the second aspect of the definition.  That is to say, in those paragraphs the Authority is considering whether there is a real chance of persecution, should the applicant be returned to Sri Lanka.  Far from the second respondent asking itself the wrong question, the second respondent has asked itself the correct question, and that is, notwithstanding the applicant’s fear and notwithstanding the episodes about which he has given evidence which the second respondent has accepted, is there a real chance that if he is returned to Sri Lanka, he would be persecuted for his political opinion?  The second respondent answered that in the negative.

17. The applicant’s argument amounts to this:  having been threatened with a gun on one occasion, the second respondent ought to have found that should he be returned to Sri Lanka there was a real chance that the applicant would be persecuted by reason of his political opinion.  In my view, the Authority did not ask itself the wrong question.  In my view, the Authority identified and asked itself the right question, but answered it in a way against the applicant’s interests. 

18. So too, it seems to me, that the arguments concerning illogicality and unreasonableness do not assist the applicant.  Just because he was threatened with a gun on one occasion, it does not necessarily follow that, should he be returned to Sri Lanka now, that there is a real chance he would face persecution by way of his political opinion.

19. The Authority made a determination about that issue.  The result of that determination was a result which was open on the evidence before it, and about which, perhaps, minds might differ, but that is not the test for illogicality, irrationality and, it is not the test for unreasonableness. 

20. The second respondent’s decision, in my view, does not demonstrate jurisdictional error, and the application must be dismissed with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 31 July, 2017.

Date: 15 August 2017