EDA17 v Minister for Immigration
[2020] FCCA 249
•10 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDA17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 249 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority erred in applying s.473DD of the Migration Act 1958 (Cth) – whether the Authority engaged with the applicant’s claims – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 476 |
| Cases cited: Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 |
| Applicant: | EDA17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1378 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 10 February 2020 |
| Date of Last Submission: | 10 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 10 February 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | AGS |
ORDERS
Leave is granted to the applicant to amend the application by substituting in ground 2 the following words “the Authority erred in applying s 473DD in respect of new information” and on which the applicant relies on the existing particulars to that ground and a new ground 3 in the form of Exhibit B and the Court directs that an amended application in this form be filed and served on or before 14 February 2020.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.
DATE OF ORDER: 10 February 2020
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1378 of 2019
| EDA17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 17 May 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. On 28 October 2012, the applicant arrived in Australia as an unauthorised maritime arrival. On 4 November 2016, the applicant lodged an application for a Safe Haven Enterprise visa.
The applicant claimed to fear harm because of his involvement in the Tamil National Alliance (“TNA”) election campaign in a particular district in 2011. The applicant claimed to fear harm from the Sri Lankan Army (“SLA”) or political groups for his political activities. The applicant claimed to fear harm because supporters of the opposition party want to take revenge. The applicant also claimed to fear harm because he is a Tamil and because he left Sri Lanka illegally.
The applicant alleged that a distant relative was running in the local election. The applicant alleged that, in the two weeks leading up to the election on 23 July 2011, the applicant was assisting in the campaign. The applicant alleged that, two days before the election, the applicant and others were attacked by a large group of men wearing masks. The applicant alleged that he was pivotal in the election of his relative at that election and the victory of the TNA. The applicant alleged that, three weeks after the election, he was the subject of attacks which were getting worse and more targeted.
The applicant alleged that there was a particular person murdered in October 2011. The applicant alleged that, in early 2012, he was working as a rickshaw driver. The applicant alleged that, in April 2012, he and nine friends were taken to a police station and held overnight. The applicant alleged that, in May 2012, he was kidnapped by four men and was beaten and sexually assaulted. The applicant alleged that it took him twenty days to recover.
The applicant alleged that he went into hiding for several months and had grave concerns for his safety. The applicant alleged that his mother suggested he go to India. The applicant alleged that he obtained a passport and travel documents from Colombo and went to India for two weeks. The applicant left Sri Lanka illegally in October 2012. The applicant alleged he has subsequently been the subject of interest by the police attending his mother’s house a few months after he left Sri Lanka and that the police came back to his mother’s house again in July 2016.
On 8 June 2017, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
On 21 August 2017, a differently constituted Authority made a determination which was set aside by orders made by the Court on 19 February 2019.
On 27 February 2019, the Authority informed the applicant that the Authority was reconsidering the applicant’s case. The applicant was provided an opportunity to put on new information and submissions.
The Authority in its reasons identified the background to the review application. The Authority had regard to the material provided by the Secretary under s 473CB of the Act.
The Authority identified a large amount of information that was provided by the applicant, including submissions. Insofar as that information contained submissions and argument, the Authority identified that did not constitute new information and had regard to the same.
The Authority otherwise identified other new information, to which the Court will return, and found in respect of some of the new information that there were exceptional circumstances to have regard to the same and in respect of other new information that there were not exceptional circumstances to have regard to the same.
The Authority summarised the applicant’s claims.
The Authority accepted that the applicant was involved in the election campaign in 2011, together with other young men with whom he played cricket. The Authority found that the applicant’s involvement was low-level and constituted mainly putting up posters. The Authority accepted that TNA posters were vandalised and posted over. The Authority also noted that, at the Safe Haven Enterprise visa interview, the applicant said that he never joined the TNA and gave little insight as to the operation of the TNA or Tamil politics. The Authority found that the applicant had exaggerated his claims to be politically active in an effort to enhance his protection claims.
The Authority referred to the election outcome and alleged post-election attack. The Authority did not accept that the applicant’s support was pivotal to the election result or that the applicant was sought out and personally attacked in the manner claimed.
The Authority described the applicant’s role as being one of a group of people who assisted in the election campaign and that the applicant was not a member of the TNA party. The Authority referred to the applicant’s limited knowledge of the TNA policy and that the applicant did not describe any involvement in matters such as election strategy that would indicate he had a pivotal or central role in the victory of the TNA.
The Authority referred to the applicant’s explanation at his arrival interview of problems involving people throwing things at him and found that was consistent with the applicant’s profile. The Authority found that the applicant had attempted to enhance his claims by suggesting that he was specifically targeted in an act of revenge for the victory of the TNA candidates. The Authority accepted that the applicant and his fellow TNA supporters were victims of some low level post-election violence in the form of stones or bottles being thrown but found that they were not otherwise harmed.
The Authority referred to the applicant’s claim in respect of a certain person being murdered in October 2011. The Authority was not satisfied that the murder of that person or his death was politically motivated. The Authority found the applicant’s evidence about the death of the particular person was speculative as to whether or not it had been a politically motivated murder. The Authority noted that the applicant conceded that he had no knowledge of the circumstances of the particular person’s death but was making assumptions based on his own circumstances.
The Authority accepted that the applicant and a group of nine friends, while allegedly waiting for a funeral, were detained in April 2012 and held overnight. The Authority did not accept that this was in connection with the election. The Authority took into account that the applicant made no claims that the funeral the applicant and the other people were waiting to attend was in respect of a political figure or that the other people arrested had any political involvement or that he was questioned about his political activity. The Authority took into account that the applicant was released to his mother the next morning and no further action resulted and that he was not charged or required to attend court. The Authority found that the applicant and his friends were of no further interest to the authorities.
The Authority referred to the applicant’s claim of kidnapping and torture. The Authority did not accept that the applicant was kidnapped and tortured in May 2012. The Authority specifically referred to the fact that the applicant made no mention of this during his arrival interview. The Authority took into account the applicant’s explanations but found it implausible that the applicant would not have been able to detail his kidnapping and other aspects of his torture, apart from the sexual component, or at least make some reference to the events in that regard. The Authority also noted that the applicant only raised this claim towards the end of the Safe Haven Enterprise visa interview. The Authority found the applicant’s responses lacked detail indicative of a mental experience. The Authority identified other implausibilities in relation to the applicant’s claims in this regard. The Authority found the applicant’s claim relating to the May 2012 incident to be a fabrication designed to strengthen his claim for protection and did not accept that it occurred.
The Authority accepted that the applicant travelled to India for two weeks on a valid passport. The Authority did not accept, however, that this was out of fear for his safety. The Authority did not accept that the applicant had applied for a passport from the same authorities he feared and that he would travel legally to India from Colombo and then return legally if he genuinely feared the Sri Lankan Authorities.
The Authority accepted that the applicant departed Sri Lanka illegally.
The Authority did not accept that the police came to the applicant’s house looking for him following his departure, either in 2012 or 2016.
The Authority found that the applicant had given a detailed, open and honest account of his claims for protection in his arrival interview and that he has subsequently fabricated and exaggerated new claims since.
The Authority referred to the applicant’s alleged political activity in Australia. The Authority did not accept that the applicant was politically active in the past in Sri Lanka. The Authority identified that the applicant did not provide any knowledge or involvement in TNA politics or planning after the 2011 provincial elections in his area. The Authority did not accept that the applicant has been politically active in Australia. The Authority did not accept the applicant’s evidence that he has an adverse political profile with the authorities in Sri Lanka or that he has come to the attention of Sri Lankan intelligence or that he would be perceived to be a political activist.
The Authority was not satisfied that the applicant faces a real chance of serious harm from Sri Lankan authorities or opponents of the TNA due to his having a pro-TNA political opinion, now or in the reasonably foreseeable future.
The Authority did not accept that the applicant was of interest to the authorities at the time he departed Sri Lanka. The Authority noted that the applicant’s close relatives, being his brother and mother, continue to live in their family home in Sri Lanka.
The Authority did not accept that the applicant has been involved in any politically sensitive or criminal activities that would attract the interest of authorities either before or since his departure from Sri Lanka.
The Authority referred to the current president having been elected in January 2015 and his government having prioritised human rights and reconciliation and having made significant progress, referring in particular to the Northern Province. The Authority referred to country information and to a number of symbolic changes that had been made. The Authority also referred to country information that a person being of Tamil ethnicity would not of itself warrant international protection and neither, in general, would a person who evidences past membership or connection to the Liberation Tigers of Tamil Eelam (“LTTE”) unless they have or are perceived to have had a significant role in it or if they are perceived to be active in post-conflict Tamil separatism and thus a threat to the state.
The Authority referred to the applicant’s submissions made on 16 April 2019 regarding media reports. The footnote paragraph 18 to that reference expressly identified an article in The Economic Times and an extract from The Hindu making reference to the sacking of the Sri Lankan Prime Minister by President Sirisena. The Authority noted that the reports contained speculation about the impact of political instability on the country. The Authority referred to the crisis lasting about two months. The Authority referred to, on 13 December 2018, the Supreme Court ruling that the decision by President Sirisena to dissolve Parliament was unconstitutional, following which the President reinstated the Prime Minister on 16 December 2018. The Authority found that it appeared the crisis had been resolved. The Authority found there was no evidence that the changes in the composition of parliament or the re-emergence of key political figures in 2018 resulted in harm for Tamils or the country of the type feared by the applicant or media commentators.
The Authority was not satisfied that the applicant’s age, religion, gender, Tamil ethnicity, his overnight detention in 2012, his support for the TNA and/or his residence in a former LTTE-controlled area, his seeking of asylum in Australia or any of the applicant’s other characteristics, either separately or cumulatively, would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities.
The Authority also referred to country information in relation to official societal discrimination based on ethnicity. The Authority was not satisfied that the applicant would face harm on his return to Sri Lanka on this basis.
The Authority referred to the applicant’s illegal departure from Sri Lanka. The Authority accepted that, if the applicant is returned to Sri Lanka, he will have to re-establish himself and may face some social stigma. The Authority was not satisfied that this treatment amounts to serious harm.
In relation to having accepted that the applicant departed Sri Lanka illegally, the Authority was not satisfied that the applicant will come to the particular attention of the authorities as a result of this process because the Authority found that the applicant does not have a profile of interest to the Sri Lankan authorities beyond having departed the country illegally.
The Authority found that the applicant would not face a real chance of a custodial sentence. The Authority was not satisfied that a brief period of detention at the airport, the imposition of any fine, possibly surety or guarantee and associated costs and reporting requirements would constitute serious harm to the applicant and took into account that fines can be paid by instalments.
The Authority also found that the provisions of the Immigrants and Emigrants Act (Sri Lanka) are laws of general application and are not applied in a discriminatory manner or selectively enforced. The Authority was satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purpose of the Act.
The Authority was not satisfied the applicant has a well-founded fear of persecution.
The Authority found that the applicant did not meet the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in sub-s 36(2)(a) of the Act.
The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in sub-s 36(2)(aa) of the Act.
Accordingly, the Authority affirmed the decision under review.
Grounds in the Amended Application
There are two grounds in the amended application:
2. The Authority erred in applying s 473DD in respect of new information.
Particulars
The Applicant claimed that he would face significant harm if a certain candidate were successful in the 2019 Presidential elections. The Authority said this was “highly speculative” and therefore it was not satisfied that there were exceptional circumstances for considering the new claim. The term “highly speculative” implied that the Authority assumed there was no real likelihood that the candidate would be successful. It referred to no evidence on which this assumption was based, and the Court should infer that it had none.
3. The Authority failed to engage intellectually with the substance of a claim made by the Applicant in response to a request for comment.
Particulars
The Authority at [22] said that it was satisfied that there were exceptional circumstance for considering the new information at CB 388 including the information about Mr Rajapakse’s candidacy, but it failed to give any real consideration to that aspect of the claim.
Mr Jones solicitor for the applicant confirmed that ground 1 was not pressed.
In relation to grounds 2 and 3, the Court granted leave to Mr Jones to rely upon the amended grounds in circumstances where it was apparent that Mr Jones wished to advance two arguments in respect of new information to which the Court was taken.
Mr Jones took the Court to paragraph 18 of the Authority’s reasons and, in particular, the reasoning referring to the alleged strong possibility, in the applicant’s representative’s assertions, that Mr Rajapaksa may win the election and become Prime Minister, resulting in the applicant facing significant harm. The Authority referred to this being speculative and was not satisfied that there were exceptional circumstances to justify considering the new information.
In that regard, the Authority expressly referred, at the commencement of paragraph 18 of its reasons, to the second piece of new information, being an extract from a blog posted on 16 March 2019, which could not have been provided when the decision of the Delegate was made, and that the extract states that the former Defence and Urban Development Ministry Secretary, the retired Colonel Rajapaksa, is likely to nominate in the 2019 presidential elections.
Mr Jones also took the Court to the applicant’s statement, at page 388 of the Court Book, which was new information accepted by the Authority as meeting the requirements of s 473DD of the Act.
The fifth dot point in the applicant’s statement to which the Court’s attention was drawn provided as follows:
In relation to local council election- I note that Mr Mahinda Rajapakse party gained majority of the seats in the local council election which is a clear indication that Rajapakse would win the future national election and since Mr Srisena also supports him, there is a reasonable possibility that either he or his brothe, Gotabaya Rajapakse may win the election and the country would turn into turmoil again and the Tamils would be targeted and would face harm.
The Court’s attention was also drawn to a post dated 16 March 2019 at page 394 of the Court Book, which provided as follows:
Former Defence and Urban Development Ministry Secretary and Retired Colonel in the Sri Lankan Army Gotabaya Nandasena Rajapaksa generally Known as Gota is likely to be nominated as the official candidate of the Sri Lankan Podujana Party (SLPP) at the forthcoming 2019 Presidential elections.
In relation to ground 2, Mr Jones submitted that the Authority had erred in its application of s 473DD of the Act in respect of this new information being rejected at paragraph 18 of the Authority’s reasons.
The Court raised with Mr Jones the difficulty that ground 2 faced when he contended that the very same information was accepted by the Authority as meeting the requirements of exceptional circumstances in paragraph 22 of its reasons. Nothing said by Mr Jones identified any basis upon which there could possibly be said to be any materiality in respect of an alleged erroneous exercise by the Authority of the power under s 473DD of the Act in respect of the very same information that the Authority accepted that there were exceptional circumstances to take into account and said that it took into account at paragraph 22 of its reasons.
The Court does not accept that the Authority failed to have regard to the whole of the provisions of s 473DD of the Act in holding that there were not exceptional circumstances to justify considering the new information the subject of paragraph 18 of the Authority’s reasons. In that regard, it is apparent from the Authority’s reasons read as a whole that the Authority referred to the whole of the statutory provisions of s 473DD of the Act in the course of its reasons. The Court refers in that regard to paragraph 9 of the Authority’s reasons.
In these circumstances, there is no basis to find that the Authority erred in its application of s 473DD of the Act or that the Authority adopted any erroneous meaning of exceptional circumstances or failed to have regard to the whole of the statutory provisions. Indeed, in relation to sub-s 473DD(b) of the Act, it is apparent that the Authority had expressly referred to sub-s 473DD(b)(i) of the Act in the context of its reasoning as to the relevant post on 16 March 2019 not being one that could have been provided before the Delegate’s decision was made. The second last sentence of paragraph 18 of the Authority’s reasons is also an obvious reference to the content of sub-s 473DD(b)(ii) of the Act.
Mr Jones submitted that the reference to the applicant’s submissions about the future change of elections being highly speculative was, itself, speculative and, accordingly, not the proper basis for any exercise of the power under s 473DD of the Act. The Court does not accept that submission. It is apparent that the Authority was identifying considerations referable to the requirements of sub-s 473DD(b)(ii) of the Act.
Mr Jones took the Court in his written submissions and oral submissions to the passage in Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 in the joint judgment under the heading ““Well-founded” fear of persecution for a Convention reason” and, in particular, the sentence “A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”
That passage does not assist the applicant in establishing error but rather supports the Authority in a preliminary assessment properly exercising the power under s 473DD of the Act and taking into account a relevant consideration. The observation as to the applicant’s speculation as to future elections being highly speculative at best was open and relevant and reflects no error by the Authority in the reasoning under s 473DD of the Act.
Further, the Court accepts the first respondent’s submission that, as the same information the subject of paragraph 18 of the Authority’s reasons was accepted and had regard to by the Authority at paragraph 22 of the Authority’s reasons, no alleged error raised by ground 2 could be said to be material.
No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, Mr Jones submitted that the Authority had failed to engage with a claim by the applicant in respect of the new information at Court Book 388. That was a reference to the dot point which the Court has summarised in full above. It is clear that the Authority had a real and meaningful engagement with the applicant’s claimed fear of political turmoil and instability. That very topic was addressed in paragraph 68 of the Authority’s reasons.
Mr Jones suggested that the reference in the second sentence to speculation about the impact of political instability in the country was not referable to the paragraph that he had identified in the statement. It is clear that it is the same substance and same issue and reflects a real and meaningful intellectual engagement and a proper consideration of the applicant’s claims and evidence in relation to the applicant’s fear of turmoil in the country giving rise to the Tamils being targeted and the applicant facing harm.
No jurisdictional error is made out by ground 3.
No jurisdictional error is made out by the amended application.
Accordingly, the amended application is dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 February 2020 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 5 March 2020
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