EFH19 v Minister for Immigration and Anor

[2020] FCCA 1047

FEDERAL CIRCUIT COURT OF AUSTRALIA

EFH19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1047

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority had a real and meaningful engagement with the issues arising from its own findings – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: EFH19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2781 of 2019

Judgment of: Judge Street

Hearing date: 4 May 2020

Date of Last Submission: 4 May 2020

Delivered at: Sydney

Delivered on: 4 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Oliver Richard Jones

Solicitors for the Respondents: Ms C Juarez MinterEllison

ORDERS

1. The hearing is to proceed by way of audio link under Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

2. Leave is granted to the applicant to rely upon the amended application filed on 24 April 2020.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 4 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2781 of 2019

EFH19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 4 October 2019 affirming the decision of a delegate of the first respondent (“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. 

3. The applicant was found to be a Tamil and a Christian. 

4. The applicant claimed to fear harm based on his ethnicity and because of actual or imputed support to the Liberation Tigers of Tamil Eelam (“the LTTE”) and fearing harm from the Sri Lankan authorities and associated groups, including the Karuna Group, being a branch of the Tamil Makkal Viduthalai Pulikal (“TMVP”).

5. In support of the applicant’s application, the applicant provided a statement in which he expressly referred to being afraid of being seriously harmed by religious groups because “I am a Christian”, and that any part of Sri Lanka would not be safe. 

6. On 28 August 2019, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The Delegate made express findings in relation to the applicant’s Christian faith on pp 4 and 5 of the Delegate’s reasons, concluding that it was not satisfied that the country information supports a finding that the applicant would be targeted for serious harm on account of his Christian faith, and as such, assessed his claim as being not credible.

7. The Authority wrote to the applicant on 3 September 2019 explaining that the application for the Safe Haven Enterprise 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, dated 16 September 2019, that were expressly referred to in the Authority’s reasons and the Authority had an intellectual engagement with the same. 

8. Those submissions of 16 September 2019 did not, on their face, engage with or take issue with the Delegate’s reasons in relation to the applicant’s claim to fear harm as a Christian. No further submission was advanced especially in relation to the Delegate’s reasoning in that regard.

9. The Authority identified the background to the Safe Haven Enterprise visa application. 

10. The Authority had regard to the material referred by the Secretary under s 473CB of the Act. 

11. As referred to, the Authority took into account the submissions provided by the applicant dated 16 September 2019. 

12. The Authority summarised the applicant’s claims to fear harm, including that he would be harmed because of his Christian faith and fearing other religious groups, including Buddhists groups. 

13. The Authority, in its reasons, referred to the applicant’s claims in relation to an incident with the Sri Lankan Army (“the SLA”) in 2002 and issues with the Karuna Group from 2007 and that in 2010, he was stopped and beaten by the Karuna Group.

14. The Authority identified there being difficulties with the applicant’s evidence of his recruitment by the LTTE and the alleged adverse interest received from 2007 onwards.

15. The Authority did not consider it credible that the Karuna Group would spend at least three years, including for a substantial period after the end of the war, pressuring the applicant, by the means claimed, to join them rather than simply abducting him or otherwise forcibly recruiting him shortly after they first showed an interest in him joining in 2007. 

16. The Authority referred to the applicant’s age at the time of the alleged forced recruitment in 2003.

17. The Authority referred to the applicant’s claims in relation to the Karuna Group and going into hiding at his uncle’s.  The Authority referred to the omissions from the applicant’s Safe Haven Enterprise visa statement, and did not consider it credible that, if the Criminal Investigation Department (“the CID”) visited his uncle’s home in 2011 to question and take away the applicant, his uncle would be able to prevent the CID men from doing so. The Authority referred to the applicant’s claim as being vague and lacking in detail. 

18. The Authority rejected the applicant’s claims that his cousin was a supporter or member of the LTTE, that his brother, “J” was a member of the LTTE or that the applicant was forcibly recruited and trained by the LTTE from 2003 to 2005. The Authority rejected the applicant’s claims that the Karuna Group pressured and threatened the applicant to join them, to leave the Association of Barbers or to give them a three-wheeler from 2007 onwards, or that the applicant was beaten by the Karuna Group in 2007 and 2010. The Authority rejected the applicant’s claims that he was in hiding at his uncle’s place, that the CID visited his uncle’s home in 2011 to question and take away the applicant and that after the applicant left, his younger brother was arrested and interrogated by the CID who were looking for the applicant or that his parents were subject to monitoring. 

19. The Authority was prepared to accept that the applicant was taken by the SLA in a round up in 2002 during which he was questioned, mistreated and held a whole day before being released that night. The Authority was not satisfied that, at the time the applicant left Sri Lanka, he was of adverse interest to the Sri Lankan authorities or the Karuna Group, other than as part of the routine monitoring and harassment of Tamil’s in the north and east that was occurring at the time. 

20. The Authority found that the applicant departed Sri Lanka on his own passport through Colombo Airport in 2011 to travel to Singapore. 

21. The Authority was not satisfied that the applicant’s fear of harm on account of his Tamil ethnicity or for any links with the LTTE or any imputed political opinions was well-founded. 

22. The Authority was not satisfied that the applicant’s profile is one that places the applicant at a real chance of harm or that it would be increased by reason of the fact the applicant has spent more than eight years outside Sri Lanka and claimed asylum in Australia. The Authority was not satisfied that, given the applicant’s profile, there was a real chance he will be monitored or subject to surveillance because of his time living outside Sri Lanka and/or as a Tamil asylum seeker if returned to Sri Lanka.

23. The Authority was not satisfied the applicant faced a real chance of harm for reason of his ethnicity, background and links to the LTTE. 

24. The Authority was not satisfied that the applicant would face a real chance of persecution on the basis of any links to the LTTE, for any imputed political opinions and/or his Tamil ethnicity if returned to Sri Lanka now or in the foreseeable future. 

25. The Authority then turned to the applicant being a Christian. The Authority referred to the constitutional provisions in relation to freedom of religion and that attacks on places of worship or religious objects and insults to religion are the subject of criminal penalties. The Authority identified that the Christian religion was one of four major religions in Sri Lanka. The Authority referred to religious leaders being invited to national functions, that various religious holidays are recognised and that there are four ministers, one for each of the major religions with responsibility for those four major religions. 

26. The Authority referred to country information in relation to religious discrimination, and referred to the fact that there are no official laws or policies that discriminate on the basis of religion, and referred to the position in relation to non-Buddhist religious adherents facing low-level official discrimination from local government officials.

27. The Authority expressly referred to there being a mass casualty bombing in Sri Lanka in Easter of 2019 targeted at several hotels and Christian churches, one of which the Authority pointed out was in the particular location where the applicant was born, and that hundreds of people, including churchgoers, were killed. The Authority identified that the attacks were said to have been conducted by two Sri Lankan Muslim organisations. Two days after the attacks, ISIS claimed responsibility, and the analysis of the attacks suggest they made little sense within the Sri Lankan domestic context but appeared to have occurred as part of ISIS’ global terrorist agenda. The Authority expressly noted that the Sri Lankan authorities have since killed or arrested most of those linked to the bombings, broken up the two organisations and appear to have contained the threat of further such attacks. The Authority referred to country information in that regard in footnote 25, referring to a number of different articles, a number of which expressly refer to the bombing. 

28. The Authority accepted that anti-Christian attacks have occurred. The Authority noted that the applicant claimed he feared harm because he is a Tamil Christian and referred to increasing religious violence against Christians across Sri Lanka and that the applicant did not claim he suffered any harm from the authorities or anyone else on account of religion when he was in Sri Lanka or that his family in Sri Lanka have experienced any harm because of their religion either before or after the applicant departed Sri Lanka.

29. The Authority returned to the Easter bombings and identified the same as a horrific circumstance and found that country information suggests it was an act of international terrorism and that the Sri Lankan government has contained that threat. The Authority then took into account the absence of any previous harm or issues in relation to the applicant’s religion, together with the country information that identify some incidents of discrimination, violence and intimidation against Christians occur, but found they are basically few and rare and that there is only a low risk of official discrimination for non-Buddhists. It was in these circumstances the Authority was not satisfied that the applicant, as a Tamil Christian, faces more than a remote chance of suffering any harm or otherwise as such increasing his risk profile.

30. It was in those circumstances that the Authority was not satisfied that there was a real chance the applicant will be persecuted because of his religion if returned to Sri Lanka now or in the reasonably foreseeable future. 

31. Taking into the account the Authority’s findings about the applicant’s profile and the country information, the Authority did not accept that he will be at risk of adverse attention or that he faces a real chance of harm from the Sri Lankan authorities when scrutinised on his return to Sri Lanka, whether during processing at the airport or on his return home. 

32. The Authority returned to the district in which the applicant was born and was satisfied that this is the area to which the applicant will return. The Authority was not satisfied, given the applicant’s profile, that there was a real risk that he would be monitored or subject to surveillance because of his absence from Sri Lanka, or as a failed Tamil asylum seeker from Australia if returned to Sri Lanka. 

33. The Authority referred to the applicant having shown himself to be resourceful and resilient by adapting to life in Australia and was satisfied that he would be able to re-establish himself in his home district without suffering harm. In relation to housing and employment difficulties that he may encounter, the Authority referred to the social stigma that the applicant may face but was not satisfied that it amounts to serious harm.

34. The Authority was not satisfied that the applicant faces a real chance of persecution on the basis of being a Tamil asylum seeker from Australia who departed Sri Lanka illegally, now or in the reasonably foreseeable future. 

35. The Authority referred to considering the whole of the applicant’s circumstances, and was not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act. 

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

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

The grounds

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

   a.The Immigration Assessment Authority (Hereinafter referred as "the Authority") made a jurisdictional error in relation to the risk of harm faced by the Applicant from terrorist attacks against Christians in Sri Lanka.

   a.Proper, genuine and realistic consideration required the Authority to engage in an active intellectual process directed towards the Applicant's case: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at ID}; Minister for Home Affairs v Omar [2019] FCAFC 188 at [36]-[ 43];

   b.For this purpose, the Applicant's case extends to matters arising from the Authority's own findings with respect to the Applicant's case: AYYI 7 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [26];

   c.The Authority found at [paragraph 42] of its decision that the Applicant is Christian;

   d.The Authority found at [paragraph 45] of its decision that there had recently been mass casualty bombings targeted at Christian churches, one of which was in Batticaloa, and hundreds of people, including churchgoers, were killed. The bombings appear to have occurred with the involvement of ISIS and as part of its global terrorist agenda;

   e.The Authority further found at [paragraph 45] of its decision that the Sri Lankan authorities had killed or arrested most of those linked to the bombings, broken up two Sri Lankan Muslim Organisations said to have conducted the bombings, appeared to have contained the threat of further such attacks;

   f.The Authority found at [paragraph 46] of its decision that, m light of country information suggesting the bombings were an act of international terrorism and the Sri Lankan authorities had contained the threat, the Authority was not satisfied that the Applicant faced more than a remote chance of suffering harm as a Tamil Christian;

   g.The Authority therefore found at [paragraph 47] of its decision that it was not satisfied there was a real chance that the Applicant would be persecuted because of his religion if returned to Sri Lanka;

   h.Had the Authority undertaken the requisite engagement with its own findings as to the country information, it could have been left in real doubt as to whether such bombings would recur, with the result that the Authority would have applied the "what if I am wrong?" test: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [1], [116]-[119];

   i.Had the Authority undertaken the requisite engagement with its own findings as to the country information, it could have concluded that the risk of recurrence of such bombings combined with the magnitude of the harm they entailed meant that the real chance test was satisfied, requiring as it did a chance that is substantial and not remote or far-fetched, regardless of whether it is less or more than 50 per cent (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 389, 398, 407, 429; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [242]-[247]);

   j.Given particulars (h) and/ or (i), the error of the Authority was material in the sense that there would have been a realistic possibility of a different result had the error not been made: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45].

2. Mr Jones, counsel on behalf of the applicant, submitted that the Authority had not had a real and meaningful engagement with the issues arising from its own findings, given that the applicant was a Christian and given the recent mass casualty bombings targeted at Christian churches with the involvement of ISIS as part of a global terrorist agenda.  Mr Jones referred to the Authority’s reasoning in relation to steps taken in relation to the two Muslim organisations and the ultimate findings by the Authority and maintained that, had there been a real and genuine engagement with its own findings in relation to country information, it should have been left with a real doubt as to whether the bombings would occur and that the Authority should have applied the “what if I am wrong” test.

3. The adverse findings by the Authority were not expressed in any language of doubt. There was no obligation to apply the “what if I am wrong” test. 

4. The submissions maintained that, had the Authority undertaken the requisite engagement with its own findings with respect to that country information, it could have concluded that the risk of recurrence of such bombings met the requirements under the Convention. That submission is, in substance, an invitation to this Court to engage in a merits review. 

5. There is no proper basis to advance that the Authority did not have a thinking, real and meaningful or proper intellectual engagement with the applicant’s claims, evidence and submissions. The findings dispositive of the applicant’s claims as summarised above by the Authority were logical and open on the material before the Authority. The Authority’s reasons do not reveal any failure to engage in an active intellectual process in respect of the applicant’s claim to fear harm by reason of his religion.

6. No jurisdictional error as alleged in the amended application is made out.

7. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.  

I certify that the preceding forty-four (44) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 18 June 2020