Ejk17 v Minister for Immigration

[2018] FCCA 1275

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJK17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1275

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority clearly considered both limbs of s 473DD of the Act – whether the Authority’s findings were unreasonable – whether the Authority failed to consider the relevant UNHCR eligibility guidelines – whether the Authority failed to consider the applicant’s claims cumulatively – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DC, 473DD, 474DD, 476.

Applicant: EJK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3017 of 2017

Judgment of: Judge Street

Hearing date: 18 May 2018

Date of Last Submission: 18 May 2018

Delivered at: Sydney

Delivered on: 18 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms K Hooper
HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3017 of 2017

EJK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 4 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 30 August 2012. On 29 August 2016, the applicant lodged an application for a Safe Haven Enterprise visa (subclass XE-790).

3. The applicant claimed he would be harmed by the paramilitary Karuna group over a property dispute and by the Sri Lankan authorities, who have imputed him with a Liberation Tigers of Tamil Eelam (“LTTE”) profile. On 17 February 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. On 22 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 explained that there were limited circumstances in which the Authority could receive new information. 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 17 March 2017, and insofar as they engaged with the delegate’s decision and findings, the Authority had regard to the same. The Authority identified that the material included a new claim in respect of the applicant’s experiences in Nauru, and details regarding the Refugee Status Determination process in Nauru and information and a conjecture regarding the storage and transfer of information.

2. The Authority noted that at the Safe Haven Enterprise visa interview, the delegate advised the applicant that he had an opportunity after the interview to forward any comments or concerns. The post-interview submission dated 9 December 2016, did not address the concerns now raised. It was in those circumstances the Authority was satisfied the applicant had an opportunity to put this information to the Minister. The Authority was satisfied that this is, in part, credible personal information and that the submission recounts the applicant’s interviews with officials and his transfer to and from Nauru. However, the Authority was not satisfied there were exceptional circumstances to justify considering the new information.

3. The Authority also referred to the applicant contending that information regarding the assessment of the applicant’s claims made at Nauru may be relevant to his claims for protection in Australia and invited the Authority to request this information. The Authority noted that it can only consider new information in exceptional circumstances. The Authority noted the task that it is required to perform under the Act and was not satisfied there were exceptional circumstances that warrant the Authority getting new information regarding the applicant’s application for protection in Nauru.

4. The Authority then referred to a Department of Foreign Affairs and Trade (“DFAT”) country report published on 24 January 2017, and found that there were exceptional circumstances to justify considering the same. The Authority then referred to other country information that was provided. In respect of a Committee Against Torture (“CAT”) report, the Authority, after referring to both limbs of s 473DD of the Act, was not satisfied that any exceptional circumstances exist to justify considering that new information. The Authority referred to a Daily Mirror article that was published after the delegate’s decision on 15 March 2017, and was satisfied that there were exceptional circumstances to justify considering the same. The Authority further noted that the Human Rights Watch 2015 report was in fact before the delegate and accordingly was not new information.

5. The Authority summarised the applicant’s claims and the applicant’s evidence. The Authority set out the relevant law. The Authority expressly referred to country information in relation to the types of persons that the Sri Lankan government would be interested in and was not satisfied the applicant falls within one of those categories of persons. The Authority did not accept the applicant was imputed with an LTTE profile at the time he left Sri Lanka and was not satisfied that he would be perceived as such on return to Sri Lanka now.

6. The Authority accepted the applicant was a Tamil born in Colombo in Sri Lanka. The Authority did not accept the applicant’s fears of persecution in Sri Lanka from Sinhalese Buddhists as well-founded. The Authority referred to the applicant’s fear of discrimination by the Sri Lankan population in general, but noted that the applicant did not particularise his concerns. The Authority found the level of societal discrimination the applicant would face on return to Sri Lanka would not amount to serious harm or systematic and discriminatory conduct. The Authority found there is no threat to the applicant’s life or liberty, or physical harassment or ill treatment, or significant economic hardship, denial of access to basic services, capacity to earn a livelihood that threatens the applicant’s capacity to subsist, or other form of harm that may be considered serious harm. The Authority found that the applicant does not have a well-founded fear of persecution on the basis of discrimination by the Sri Lankan population.

7. The Authority noted that the applicant remained living with his grandmother during the times that the Karuna group had occupied his Batticaloa house and found that the applicant, had he been of any interest to the authorities, the Karuna group would have been able to locate him. The Authority found that the applicant lived most of his life with his father in Batticaloa and that there is no indication that the applicant would be returning without somewhere to live.

8. The Authority accepted that the applicant’s details were disclosed in the February 2014 data breach and could not discount that the authorities would be aware he had claimed protection in Australia and may be aware that he had claimed asylum in Nauru. The Authority found on the evidence before the Authority, that the Authority was not satisfied the applicant’s status as a failed asylum seeker, both in Nauru and Australia, would bring him to adverse attention on return to Sri Lanka. The Authority accepted that there were reports of mistreatment of those returned asylum seekers who had an actual or imputed profile of LTTE links. The Authority found however, the applicant had no such profile and would not be perceived as such. The Authority was not satisfied that there is a real chance the applicant would face any harm on return as a failed Tamil asylum seeker.

9. The Authority referred to the Immigrants and Emigrants Act 1948 (Sri Lanka) and found the applicant may be detained and questioned at the airport for up to 24 hours, be fined for breaching the Immigrants and Emigrants Act 1948 (Sri Lanka) by reason of illegal departure, and may face a period of time held in a prison. The Authority did not consider the brief period of detention would constitute the necessary level of threat to the applicant’s life or liberty, or amount to significant physical harassment or ill treatment under s 5J(5) of the Act, or otherwise amount to serious harm to the applicant. The Authority did not accept that the likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine would constitute serious harm under s 5J(5) of the Act.

10. The Authority found that the Immigrants and Emigrants Act 1948 (Sri Lanka) is a law of general application and is not selectively enforced or applied in a discriminatory manner. The Authority found that the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act 1948 (Sri Lanka) would be the result of a law of general application, and does not amount to persecution for the purpose of s 5H(1) and s 5J(1) of the Act.

11. The Authority referred to taking into account the applicant’s claims and circumstances in their totality in determining whether there was a real chance of him suffering harm from the authorities, the Karuna group, the Sinhalese Buddhists, as a young Tamil male who departed Sri Lanka illegally and who has claimed asylum in Nauru and Australia, and whose details were released in the data breach, together with the property dispute and his familial links to a person detained for two or three years as a suspected LTTE supporter, or for reasons of erection of a Buddhist temple in Hindu areas. However, considering the country information, the Authority was not satisfied there was a real chance of the applicant being persecuted in Sri Lanka in the reasonably foreseeable future. The Authority found the applicant’s fear of persecution is not well-founded. The Authority found the applicant failed to meet the definition of “refugee” in s 5H(1) of the Act and that the applicant did not meet the criteria under s 36(2)(a) of the Act.

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

Before this Court

1. A Registrar of the Court on 15 November 2017, made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

Applicant’s submissions from the bar table

1. From the bar table, the applicant endeavoured to tender a letter sent to him in 2014 that was not before the delegate and was not before the Authority. The applicant alleged that the letter went to his claims in relation to concerns in respect of the data breach. It is apparent that the Authority took into account the applicant’s claims in respect of the release of information following the data breach in 2014 and made adverse determinations in that regard. The Court is not in a position to make new findings in respect of the applicant’s claims and was not satisfied that the proposed tender of the document was relevant. Accordingly, the document was rejected and marked MFI 1.

2. The applicant then sought to tender further documents in relation to his claims in respect of material that was not before the Authority. As this Court is not in a position to make fresh findings in respect of the applicant’s claims, the further tender of material consisting of two pages was also rejected and marked MFI 2.

3. From the bar table, the applicant maintained that he had provided all the evidence and that he could not live in Sri Lanka and that the information he had provided was such that he could not understand why his claims had been rejected. Both the delegate and the Authority have provided reasons explaining in detail why the applicant’s claims were rejected. The applicant also confirmed at the commencement of the hearing that he understood the explanation he had been given by the Court as to the nature of the hearing.

4. The applicant then referred to a concern in relation to what occurred in Nauru. The Authority expressly turned to the applicant’s new claim in respect of his treatment in Nauru and provided logical and rational reasons in support of an adverse determination under s 473DD of the Act as to why the Authority was not satisfied there were exceptional circumstances to justify considering that new information. Those reasons reflect a consideration of both limbs of s 473DD of the Act and cannot be said to be an unreasonable exercise of power by the Authority.

5. The applicant also raised his concerns as to the data breach, which was a claim that was expressly considered and rejected by the Authority. In that regard, the Authority did accept that the authorities in Sri Lanka may be aware that he has sought asylum in both Australia and Nauru. However, the Authority provided reasons that the applicant was not a person who had a profile that would give rise to adverse attention by the authorities. The adverse findings in that regard were open to the Authority for the reasons given by the Authority. Nothing said by the applicant from the bar table identified any relevant jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   Ground 1

   The Authority committed legal error as it failed to consider information relating to Nauru experience at [5], the authority failed to follow statutory requirement of section 474DD.

   Particulars

   1. The Reviewer states that aspects of Nauru related information/claims was before the delegate.

   2. However the Reviewer then states that some concerns concerning of related to Nauru were not raised and that there were no exceptional circumstances to consider the new information.

   3. Failing to consider information that was before the delegate amounts to a legal error.

   4. Particulars would be expanded once the applicant receives the court book.

   Ground 2

   The IAA committed jurisdictional error as the findings is inconsistent, illogical and unreasonable.

   Ground 3

   The IAA committed jurisdictional error as it failed to consider the UNHCR’s current Eligibility Guidelines for Sri Lanka

   Ground 4

   The IAA committed jurisdictional error as it failed to consider the applicant’s claims cumulatively.

Ground 1

1. In relation to ground 1, the applicant complained about the failure to take into account his treatment at Nauru. That is a matter to which I have already referred above in respect of the reasoning by the Authority. The Authority clearly considered both limbs of s 473DD of the Act in determining whether or not there were exceptional circumstances to justify considering that information, as well as taking into account the significance of the information. The adverse finding by the Authority in that regard cannot be said to be legally unreasonable. The Authority specifically identified that the applicant had an opportunity after the Safe Haven Enterprise visa interview to provide further information and that the applicant did so and did not include any such material in respect of his treatment in Nauru. Accordingly, no jurisdictional error in terms of an erroneous application of s 473DD of the Act is made out. The reference to s 474DD of the Act is clearly an error in the application.

2. Insofar as ground 1 seeks to agitate the refusal of the Authority to take any steps to obtain the information from Nauru, the Authority identified that request and identified the task that was before the Authority in respect of the Act and took into account the exceptional circumstances that must exist in getting new information and was not satisfied that the Authority should do so. The Authority’s reasons reflect a reasonable exercise of power under s 473DC(3) of the Act and cannot be said to lack any evident and intelligible justification. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the unparticularised general assertions that the findings were inconsistent, illogical or unreasonable are not, on their face, capable of making out any relevant legal error. The Authority’s reasons reflect making adverse findings dispositive of the applicant’s claims that were open to the Authority for the reasons summarised above. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, it is apparent that from the footnote references in the Authority’s decision that the Authority did take into account the United Nations High Commissioner for Refugees Eligibility Guidelines in determining whether or not the applicant had a relevant profile. The Authority made an adverse finding that was open to the Authority on the material before the Authority for the reasons given by the Authority. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, which alleges the Authority failed to consider the applicant’s claims cumulatively, the Authority expressly referred in its reasons, as summarised above, to considering the applicant’s claims in their totality. That reflects considering the applicant’s claims cumulatively. No jurisdictional error as alleged in ground 4 is made out.

Conclusion

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

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 June 2018