EDU17 v Minister for Home Affairs

[2019] FCCA 1023

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDU17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1023

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority denied the applicant procedural fairness – whether the Authority complied with its statutory obligations – whether the adverse findings of the Authority were open – whether the Authority considered the whole of the applicant’s claims and evidence – no jurisdictional error made out – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476

Applicant: EDU17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 383 of 2017

Judgment of: Judge Street

Hearing date: 21 March 2019

Date of Last Submission: 21 March 2019

Delivered at: Adelaide

Delivered on: 21 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Milutinovic
Sparke Helmore

ORDERS

1. The name of the First Respondent is changed to the Minister For Home Affairs and the Court dispenses with the need for the filing of any further documents in this regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of SIX THOUSAND DOLLARS ($6000).

DATE OF ORDER: 21 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 383 of 2017

EDU17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. 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 Part 7AA of the Act made on 6 September 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 8 September 2012. The applicant was found to be a Tamil from the Northern Province in Sri Lanka.

3. The applicant claimed to fear harm as a result of the Liberation Tigers of Tamil Eelam (“LTTE”) forcibly recruiting his older brother, brother A, in 2007. The applicant alleged that between October 2008 and May 2009 the applicant and his family were displaced due to the civil war. The applicant alleges in February 2009 his father was not with the family at the time and was killed in a shelling attack. The applicant alleges that his younger brother, brother G, in May 2009 was badly injured in a shelling attack and hospitalised. The applicant alleges he sustained injuries for which he still bears physical scars. The applicant alleges that in May 2009 his mother and sister were taken to a camp for Internally Displaced Persons (“IDP”). The applicant alleges he was permitted to exit the IDP camp to visit his younger brother in hospital and stayed with him for two months.

4. The applicant alleges that when he tried to return to the IDP camp the Sri Lankan army detained and questioned him for four hours. The applicant alleges he was threatened by the Sri Lankan Army (“SLA”) while being accused of LTTE membership and that they would send him to a rehabilitation camp, but then his mother intervened. The applicant alleges that in May 2010 his family were released from the IDP camp and returned to their village in their home area. The applicant alleges that in July 2010 the applicant and his mother were ordered to attend interviews with the Criminal Investigation Department (“CID”). The applicant alleges he was interrogated in relation to his brothers and that he was threatened with arrest for being with the LTTE.

5. The applicant alleges that in 2011 the CID forced his uncle to stand as a candidate for the Eelam People’s Democratic Party (“EPDP”) by threatening to arrest the applicant on LTTE charges. The applicant alleged that the CID, who were working alongside the EPDP, used the applicant to pass messages to his uncle during his term of office and that the SLA continued to monitor the applicant and his mother.

6. The applicant departed Sri Lanka in August 2012. The applicant claimed to fear that the Sri Lanka authorities, or associated paramilitaries would detain, interrogate, torture and kill him because he is a young Tamil male from the north; he is suspected of LTTE links; that he has familial LTTE links; because of his scarring; he has provided information to humanitarian organisations; and by reason of having departed Sri Lanka illegally and having sought asylum in Australia.

7. On 20 February 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

8. On 23 February 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions which were explicitly referred to by the Authority in its reasons. The Authority identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act.

9. The Authority referred to the submissions that were received on behalf of the applicant dated 22 March 2017 and was satisfied there were exceptional circumstances to justify considering the new information, as well as taking the same into account insofar as to engage with the delegate’s reasons.

10. The Authority summarised the applicant’s claims. The Authority accepted the applicant’s older brothers were LTTE members and that the brother A was forcibly recruited in 2007. The Authority accepted the applicant and his family were displaced due to ongoing conflict. The Authority referred to country information.

11. The Authority accepted the applicant’s claim that he was overhead talking about his brother A and warned not to mention the matter again or he would be harmed. The Authority found the applicant’s release from the IDP camp in May 2010, along with his mother and sister, indicated that the applicant was not a person of interest to the Sri Lankan authorities at that time. The Authority accepted that the family returned to the home village.

12. The Authority did not accept as plausible that as a result of the applicant’s inquiries to the International Committee of the Red Cross (“ICRC”) and Human Rights Commission (“HRC”) in his home district, the CID would summon the applicant and his mother to Colombo on three separate occasions in order to pressure them into applying for a death certificate for the brother A as claimed.

13. The Authority found the applicant was never detained or charged with any offence after returning to his home district. The Authority was satisfied that the threats identified by the applicant were for the purpose of intimidation only. The Authority was satisfied that the CID in Colombo did not believe the applicant had any LTTE involvement.

14. The Authority found the applicant’s oral evidence regarding his claims concerning his uncle to be vague and unconvincing but identified having concerns in relation to the credibility of his claim which had not been raised prior to the Safe Haven Enterprise visa application. The Authority found that the claim that the CID officer called the uncle threatening to arrest the applicant on LTTE charges to force the uncle into a political position was far-fetched and unsubstantiated. The Authority did not accept this occurred. The Authority found the applicant’s evidence that the CID forced him to pass messages to his uncle after his election, because the CID could not do it themselves, was also vague and unconvincing and did not accept that occurred.

15. The Authority was not satisfied the Sri Lankan authorities would impute the applicant to hold any sort of anti-Sri Lankan government political opinion because of his uncle being EPDP politician. The Authority was not satisfied that there was any link between the political activities of the applicant’s uncle and the applicant’s own situation.

16. The Authority found that if the applicant was of adverse interest because of any suspected LTTE involvement, or because he had raised his brother A’s disappearance with United Nations High Commissioner for Refugees (“UNHCR”), HCR and ICRC, and did not withdraw his enquiries, or because of the letter his mother wrote in 2011, then the authorities had sufficient time to take action against him. The Authority found, despite the threats, no action was forthcoming and the Authority found the threats to be empty. The Authority found the applicant had exaggerated the extent of the authorities’ interest in him.

17. The Authority found the applicant’s evidence regarding the CID’s visits to his family after his departure from Sri Lanka lacked detail and was prepared to accept that they did so once in 2012 and once in 2013. The Authority noted that the applicant had not claimed there was any adverse consequences for his family and that four years had now passed since the authorities showed any interest in the applicant.

18. The Authority noted that the applicant has not claimed that there have been any adverse consequences for the applicant and his family for any reason relating to his older brother’s LTTE membership.

19. The Authority did not accept the authorities would impute the applicant with anti‑government sentiments, assume he would be politically active in Australia, or monitor him upon return because of his mother, or for any other reason.

20. The Authority was not satisfied the Sri Lankan authorities will impute the applicant to have a pro‑LTTE political opinion because of his status as a young Tamil male, his origin, his brothers’ actual LTTE involvement, his father’s imputed LTTE involvement, his mother’s activities or his scarring. Taking into account the applicant’s personal circumstances and country information, the Authority was not satisfied the Sri Lankan authorities have an adverse interest in the applicant because of his or his mother’s previous interactions with them, or the humanitarian organisations, both in Sri Lanka and Australia, or regarding his brother A. The Authority was not satisfied the applicant’s uncle’s political activities have resulted in a profile of any sort for the applicant. The Authority found the applicant does not face a real chance of harm for any of the reasons identified should he return to Sri Lanka.

21. The Authority accepted the applicant would be returning as an illegal departee, but was not satisfied that any routine questioning at the airport upon return amounts to serious harm. The Authority found the treatment the applicant will face as a consequence of the application of the Immigrants and Emigrants Act 1949 (Sri Lanka) is not persecution within the meaning of s 5J(4) of the Act.

22. The Authority found the applicant does not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

23. The Authority found there are not substantial grounds for believing, that as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 18 September 2017. On 27 October 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant referred to his family members’ involvement with the LTTE. This was a matter that was taken into account by the Authority and the Authority made adverse findings given the applicant and his family’s release from the IDP camp. Those adverse findings were open to the Authority for the reasons given by the Authority. The applicant also referred to the Authority’s refusal to find that he met the criteria for the grant of a protection visa. The disagreement with the adverse findings does not identify any relevant error.

4. The applicant also asserted from the bar table in respect of the adverse findings that at the interview he had not been given the opportunity to elaborate and that he was suffering from certain mental conditions. The Authority gave the applicant an opportunity, by letter of 23 February 2017, to put on new information and submissions. The applicant, in fact, did so. The submissions addressed the applicant’s credibility, in particular, the applicant’s lack of familiarity with the immigration process, including the formal interview. The submissions referred to the applicant fearing the authorities and found it difficult to speak openly to the authorities in Australia.

5. The submissions also referred to the applicant being required to articulate his claims through an interpreter which impeded the accuracy of the evidence provided. The submissions also referred to the applicant being given advice from members of his community and was scared to disclose certain aspects of his case. It was submitted that those matters impact on whether or not the inconsistencies should be disregarded. Reference was also made to the nature of the entry interview and that the applicant was traumatised after a long and arduous journey to Australia and not able to fully articulate his claims in detail on entry. The submissions referred to the applicant being upset and nervous and extremely fearful that he would be sent back. Submissions were advanced as to why the applicant’s evidence should be accepted. There was a reference in the submissions in respect of the applicant’s claims to the proposition he was told to keep his answers concise at the entry interview in those submissions.

6. The Authority’s reasons expressly refer to the submissions advanced and the reasons make it apparent that the Authority has had regard to the same. The analysis by the Authority of the applicant’s claims is consistent with the real and meaningful engagement with the applicant’s claims and submissions. No jurisdictional error arises by reason of anything said by the applicant from the bar table.

The ground

1. The ground in the application as follows:

   The applicant was denied procedural fairness by the Immigration Assessment Authority to address part of the applicant’s claim and this failure to take into account for a relevant consideration.

2. Given the exhaustive nature of Part 7AA of the Act in relation to the requirements of procedural fairness, it is not apparent that there is any jurisdictional error as asserted or a denial of procedural fairness. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. The generalised assertion of a failure to take into account a relevant consideration is not capable on its face of identifying any relevant error.

3. On the face of the Authority’s reasons, as summarised above, the Authority correctly identified the applicant’s claims and made findings dispositive of the applicant’s claims that were open on the material before the Authority. No jurisdictional error as alleged in the application is made out.

4. Accordingly, the application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 April 2019