EHB17 v Minister for Immigration

[2018] FCCA 304

FEDERAL CIRCUIT COURT OF AUSTRALIA

EHB17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 304

Catchwords:
MIGRATION – Temporary protection visa – grounds of application without particulars – no basis for interfering with factual findings of IAA – application for judicial review dismissed.

Legislation:
Migration Act 1958 (Cth), Pt.7AA, ss.5H, 5J, 36(2)(a)

Cases cited:
Craig v State of South Australia (1995) 184 CLR 163
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: EHB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File number: PEG 521 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 7 February 2018

Date of last submission: 7 February 2018

Delivered at: Perth

Delivered on: 7 February 2018

REPRESENTATION

Applicant in person

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The proceeding before this Court commenced by way of application filed on 21 September 2017 is dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 521 of 2017

EHB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. By application filed in this court on 21 September 2017, the applicant sought judicial review of a decision of the Immigration Assessment Authority (“IAA”) made on 1 September 2017. The IAA affirmed the decision of a delegate of the Minister for Immigration and Border Protection made on 17 February 2017 to refuse the applicant’s application for a temporary protection visa made on 12 September 2016.

2. In his application to this court, the applicant relied on three grounds of review, none of which were particularised. The three grounds were as follows, verbatim –

   1.Jurisdictional error.

   2.Bias based on conscious or unconscious prejudice by ignoring relevant materials.

   3.Identifying a wrong issue on a wrong question.[1]

   [1] Application filed on 21 September 2017 at p.3.

3. No details were given of the alleged jurisdictional error for which the applicant contended. Nor did he give details of the alleged bias he asserted. He also did not identify the issue or question he said was wrong.

4. Today in the hearing before me I asked the applicant, through his interpreter, to tell me in his own words what he said the IAA did wrong in this case. He was unable to meaningfully respond. 

Synopsis

1. For the reasons that follow, in my judgment this application for judicial review must be dismissed. The applicant must pay the Minister’s costs.

Short factual narration

1. The applicant, a Tamil male from Kandy District, Central Province, Sri Lanka, arrived in Australia on 26 October 2012 as an unauthorised maritime arrival. Almost four years later, he sought a protection visa on 12 September 2016. After the delegate refused the application for a protection visa, it was automatically referred to the IAA under

   
   

   Part 7AA of the Migration Act 1958 (“the Act”).

2. The IAA summarised the applicant’s claims for protection taken from the written statements in paragraph 4 of its reasons. Relevantly paraphrased, the applicant claimed as follows –

   a)his father was presumed dead;

   b)in 2009, the applicant’s uncle was among a number of Tamils detained by the Sri Lankan Army (“SLA”) in a camp in Vavuniya;

   c)the applicant secured the temporary release of his uncle from the camp;

   d)the applicant’s uncle escaped from the camp after which the applicant never saw his uncle again and the applicant was taken into custody;

   e)at the urging of the applicant’s family the SLA released the applicant from custody requiring him to report weekly on his uncle’s whereabouts;

   f)the SLA suspected the applicant of assisting his uncle to escape from the camp as a consequence of which SLA officers beat the applicant on four separate occasions, interrogated him and frequently visited the applicant’s home;

   g)the applicant’s aunt told him that his uncle was lost at sea when the boat in which the uncle was travelling sank on its way to Australia after which the applicant left Sri Lanka;

   h)the SLA has searched for the applicant, even after he arrived in Australia; and

   i)the Sri Lankan government persecutes Tamils and if the applicant returns to Sri Lanka the applicant fears he will be seriously harmed or killed by reason of his Tamil ethnicity, his relationship to his uncle, his former residence in a Tamil area, his suspected membership of the Liberation Tigers of Tamil Eelam (“LTTE”), his illegal departure from Sri Lanka and his asylum application in Australia.

3. The IAA summarised information obtained by the delegate during an interview with the applicant conducted on 9 December 2016. That was recorded at paragraph 5 of the IAAs reasons. 

4. In its consideration of the applicant’s claims, the IAA made a number of findings that ultimately led to its conclusion in paragraph 38 of its reasons that the applicant did not meet the requirements of the definition of refugee in s.5H of the Act and the applicant did not meet s.36(2)(a) of the Act. Claims that the IAA accepted included the following –

   a)

   the applicant, a Tamil male, lived most of his life in

   
   

   Vavuniya District, Sri Lanka;

   b)the applicant’s father was presumed dead after he went missing in 1983, when civil war broke out in Sri Lanka, lasting until 2009;

   c)the applicant lived in India as a refugee between 1990 and 1992; and

   d)the applicant’s uncle was interned in a camp in 2009 with other Tamils.

5. The IAA said it found the applicant’s claim unconvincing that his uncle was detained under suspicion of LTTE involvement. The IAA reasoned that for the six grounds set out between paragraphs 15 to 20 of its reasons, inconsistencies in the applicant’s evidence undermined the credibility of the applicant’s claims.

6. The IAA stated that when considered cumulatively, the inconsistencies in the applicant’s evidence led the IAA to conclude that the applicant was not recalling a genuine personal experience in relation to events that he said led to his decision to leave Sri Lanka. Specifically, the IAA stated as follows –

   a)it found it implausible that immediately following the end of the conflict, a person detained under suspicion of having links with the LTTE would have been released from SLA custody into the care of a family member;

   b)it did not accept that the applicant’s uncle was detained by the Sri Lankan authorities on account of actual or imputed LTTE links;

   c)it did not accept that the applicant’s uncle or aunt were former LTTE soldiers;

   d)it was not satisfied that prior to his departure from Sri Lanka, the applicant came to the adverse attention of the army, police or Criminal Investigation Department (“CID”);

   e)it was not satisfied the applicant was a person with an adverse profile with the Sri Lankan authorities as claimed; and

   f)

   it was not satisfied that the applicant faced a real chance of serious harm upon his return to Sri Lanka now or in the reasonably foreseeable future by reason of his Tamil ethnicity,

   
   

   his actual or imputed LTTE links, his former place of residence or for any other reason. 

7. The IAA addressed the applicant’s protection claim on the ground of his being a failed asylum seeker by rejecting it. The IAA said it was highly likely the applicant would be fined for being an illegal departee from Sri Lanka but the imposition of a fine would not constitute serious harm. The IAA said there was not a real chance the applicant would face imprisonment. It also said any process or penalty for illegal departure would not constitute persecution. The IAA found that the applicant did not have a well-founded fear of persecution within the meaning of s.5J of the Act.

8. In terms of his complementary protection claim, the IAA said that substantial grounds did not exist for believing that as a necessary and foreseeable consequence of his travel to a receiving country, there was a real risk that the applicant would suffer significant harm. The IAA concluded that the applicant did not meet s.36(2)(a) of the Act.

9. The IAA affirmed the delegate’s decision with the consequence that the applicant failed in his application for the visa he sought.

In this court

1. Being dissatisfied with the IAAs decision, the applicant sought orders in this court for the issue of constitutional writs. He needed to demonstrate that the IAA had fallen into jurisdictional error in one of the ways stated in the High Court decision in Craig v State of South Australia[2] or in Kirk v Industrial Relations Commission (NSW).[3] In my view, he failed to show that the IAA fell into jurisdictional error on any of the three grounds asserted. 

   [2] (1995) 184 CLR 163.

   [3] (2010) 239 CLR 531.

2. It was held in WZAVW v Minister for Immigration and Border Protection[4] and in WZATH v Minister for Immigration and Border Protection[5] that a court is entitled to dismiss a case seeking judicial review by reason of generalised and unparticularised grounds of review. In this case, the grounds of review were in the extreme category of generality. The applicant gave not the slightest inkling of his complaint in ground 1. Stating “jurisdictional error” concealed, rather than revealed, the factual and legal basis for his assertion. Ground 1 was devoid of merit. 

   [4] [2016] FCA 760.

   [5] [2014] FCA 969.

3. Ground 2 was premised on a contention of bias. The applicant did not say in what way the IAA was said to have been biased. I detected no bias. It seemed to me the IAA faithfully and properly undertook its tasks in accordance with Part 7AA of the Act. Ground 2 was devoid of merit.

4. Ground 3 failed to identify the wrong issue on which the applicant relied. Far from the IAA identifying a wrong question or issue, in my view the IAA undertook its consideration of Convention-based protection and complementary protection wholly correctly. I detected no error. Ground 3 was devoid of merit.

5. The applicant filed an affidavit to which he exhibited documents that were unexplained, but seemed to emanate from internet sources.

   
   

   It was not proper for me to have regard to them. If I had, I may have been embarking upon an impermissible merits review or possibly risking substituting my own view of country information for the country information on which the IAA relied. 

6. The applicant gave evidence before me today. As is my usual practice, after he was affirmed I asked the applicant what he said the IAA did wrong in this case. Several times today he told me he believed the IAA did not adequately consider his case. I disagree. It gave proper consideration to his claims. 

7. I dismiss the applicant’s application for judicial review and order the applicant to pay the Minister’s costs fixed in the sum of $5,000.00. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson

Associate:  

Date:      13 February 2018