Enb19 v Minister for Immigration

[2020] FCCA 1968

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENB19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1968

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.473CB, 473DD

Cases cited:

Kopalapillai v Minister for Immigration (1998) 86 FCR 547

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: ENB19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2969 of 2019

Judgment of: Judge Driver

Hearing date: 20 July 2020

Delivered at: Sydney

Delivered on: 20 July 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Mr C Burke of Sparke Helmore by telephone

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2969 of 2019

ENB19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant seeks juridical review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 21 October 2019.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s claims and the decision of the Authority on them are set out in the Minister’s outline of legal submissions.   

3. The applicant, a citizen of Sri Lanka, arrived on Christmas Island on 8 November 2012 as an unauthorised maritime arrival.[1] On 16 March 2017, the applicant applied for the visa.[2]

   [1] Court Book (CB) 100, 140

   [2] CB 25-70

4. On 23 March 2017, the delegate requested that the applicant provide a completed Part C form for the application.[3] On 16 August 2017 and 19 and 22 July 2019, the applicant provided further material to the Minister’s Department, which included a further Part C form.[4]

   [3] CB 77

   [4] CB 79-125, 130-136

5. On 17 September 2019, the delegate refused to grant the applicant the visa.[5]

   [5] CB 140-154

6. On 20 September 2019, the matter was referred to the Authority.[6] No further information was obtained or received by the Authority. On 21 October 2019, the Authority affirmed the decision to refuse the grant of the visa.[7]

   [6] CB 155-157

   [7] CB 165-177

The applicant’s claims

1. The applicant’s claims for protection were advanced in a statement provided with the visa application, and may be summarised as follows:

   a)his cousin, a humanitarian worker, was shot by the Sri Lankan military in 2006 during a battle between the army and the LTTE[8] in an area called Muttur. The army “killed all the Tamil people (including the humanitarian workers) in retaliation”;[9]

   b)after the applicant gave evidence in Court that he had identified his cousin’s body and that the military shot him, he became aware that the military were looking for him and he fled to India with his wife and children, where he resided in a refugee camp for five and a half years.[10] His mother told him that the police regularly came looking for him whilst he was in India;[11]

   c)he returned to Sri Lanka because he was in India illegally and could not work. His mother told him that the police were searching for him and that they knew he had arrived by plane.[12] He feared that he would be arrested so he made arrangements to travel to Australia, but the Sri Lankan navy intercepted his boat and he was gaoled for four days. He was released after his mother paid 1 lakh;[13]

   d)the applicant subsequently departed Sri Lanka on 8 November 2012. The police continued to search for him following his departure. He feared that if returned, he would be killed by the military for providing evidence that they killed his cousin and other humanitarian workers.[14]

   [8] Liberation Tigers of Tamil Eelam

   [9] CB 63, [9]

   [10] CB 63, [11]-[13]

   [11] CB 63-64, [14]

   [12] CB 64, [15]

   [13] CB 64, [16]

   [14] CB 64, [17]-[19]

The Authority’s decision

1. The Authority had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (Cth) (Migration Act). No new information was obtained or submitted.[15] The Authority accepted that the applicant was a Sri Lankan national of Tamil ethnicity.[16]

   [15] CB 166, [2]

   [16] CB 166, [4]

2. The Authority summarised the applicant’s claims for protection and referred to DFAT[17] country information regarding extra-judicial violence administered by the authorities during and after the civil war in Sri Lanka.[18] The Authority recorded that it had a number of difficulties with the applicant’s claims regarding the adverse attention he received from the authorities and found that he was not a credible or reliable witness.[19]

   [17] Department of Foreign Affairs and Trade

   [18] CB 166-168, [3], [6]-[13]

   [19] CB 168, 170, [13], [17]

3. The concerns the Authority raised with the applicant’s evidence included:

   a)it did not find it credible that the applicant would be asked to give evidence about who killed his cousin given that he had not witnessed his cousin’s death;[20]

   b)it was not credible that the authorities would continue to attend the applicant’s house on a regular basis after being informed he was in India;[21]

   c)it was not credible that the applicant would return to Sri Lanka from India despite his mother having informed him that the authorities’ visits were ongoing or that he was able to return through the airport despite their claimed interest in him;[22]

   d)the applicant’s two year delay in seeking to depart Sri Lanka after returning from India was inconsistent with his claimed fear of harm.[23] It was not credible that the authorities would not have located him during this period if he was of genuine interest. This was particularly so given that he worked for the same employer during this period and claimed to have been arrested and that he was reporting to the police but stopped after his failed attempt to depart in 2012;[24]

   e)it was not credible that the authorities would continue to make enquiries regarding the applicant’s whereabouts, with no result, over six years after his departure from Sri Lanka.[25]

   [20] CB 168, [14]

   [21] CB 169-169, [15]

   [22] CB 169, [15]

   [23] CB 169, [16]

   [24] CB 169, [16]

   [25] CB 169, [16]

4. The Authority accepted that the applicant’s cousin was killed by the army as claimed and that he was required to identify his cousin’s body. However, on the basis of its adverse assessment of the applicant’s credibility, it otherwise rejected his claims to fear harm wholesale. In particular, the Authority rejected as a fabrication the applicant’s claim to have given evidence in Court about his cousin’s killing. The Authority further rejected the claims that:[26]

   a)the authorities tried to arrest him in 2006 and had continued looking for him; 

   b)he unsuccessfully attempted to depart Sri Lanka illegally in 2012 and was required to report to the police thereafter; and

   c)the authorities made enquiries about his whereabouts following his departure.

   [26] CB 170, [17]

5. Overall, the Authority was not satisfied that the applicant was of any adverse interest to the authorities at the time he departed Sri Lanka in 2012.[27]

   [27] CB 170, [17]

6. With reference to relevant country information, the Authority was not satisfied that the applicant’s fear of harm in Sri Lanka, on account of his Tamil ethnicity, any LTTE links or political options, or other reasons was well founded.[28] Further, the Authority was not satisfied that, given the applicant’s profile, there was a real chance he would be monitored or subject to surveillance due to the time he spent outside Sri Lanka or his status as a returned Tamil asylum seeker who departed illegally.[29]

   [28] CB 171-172, [21]-[25]

   [29] CB 172-173 [28], [42]

7. The Authority was not satisfied that the applicant faced a real chance of harm or persecution on the basis of his ethnicity, background, or any real or imputed links to the LTTE.[30] Further, the Authority was not satisfied that the applicant would be arrested and charged as a failed asylum seeker under the Sri Lankan Immigrants and Emigrants Act upon return for his illegal departure in 2006, or that there was a real chance that he would face serious harm as a returned Tamil asylum seeker from Australia.[31]

   [30] CB 173, [29]-[30]

   [31] CB 174-175, [36], [41]

8. Whilst the Authority accepted that the applicant may face court action and a fine for his illegal departure to Australia, it found that this would be the result of the non-discriminatory enforcement of a law of general application which would not amount to persecution.[32]

   [32] CB 175, [41]

9. Overall, the Authority found that the applicant did not meet the requirements of s.36(2)(a) or (aa) of the Migration Act.[33] In particular, the Authority was not satisfied that any treatment the applicant would face on return to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally amounted to a real risk of significant harm.[34]

   [33] CB 176-177, [44], [52]

   [34] CB 176-177, [47], [49]-[50]

The current proceedings

1. These proceedings began with a show cause application filed in 15 November 2019.  The applicant continues to rely upon that application.  It contains the following grounds:

   Ground one: Jurisdictional Error: The Immigration Assessment Authority fell into jurisdictional error in reaching its conclusion that the applicant did not face harm by Sri Lankan Arm Forces.

   Particulars

   1. The Applicant previously detained by the Sri Lankan Arm Forces

   2. The district Jude ordered him to realise.un

   3. He was the main witness for his own brother’s death against Arm Forces.

   4. There is fair chance of detained in the Sri Lankan Airport on his arrival.

   Ground TWO: Jurisdictional Error.  The Authority fell into jurisdictional error by an erroneous Construction of s473DD in that adopted unduly narrow construction of s473DD.

   In doing so, it constructively failed to exercise it’s jurisdiction under s473DD

   (errors in original)

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 15 January 2020. 

3. Only the Minister filed written legal submissions in advance of today’s hearing.  I invited oral submissions from the applicant this afternoon.  He had nothing to say.  Having heard from the Minister’s solicitor, I explained the position, as I saw it, to the applicant.  Once again, he declined to make any submissions. 

4. In my view, no arguable case of jurisdictional error arises from the grounds in the application.  I agree with the Minister’s submissions concerning those grounds.  

5. Ground one merely expresses disagreement with the Authority’s rejection of his claims to fear harm from the authorities in Sri Lanka, and at its highest, seeks impermissible merits review. Further the applicant claimed, and the Authority accepted, that it was his cousin who was killed not his brother. In any event, to engage in an assessment of the applicant’s claims and eligibility for the visa is not a function of the Court.[35] The Authority’s adverse credibility findings in respect of this aspect of the applicant’s claims were plainly open to it on account of the inconsistencies and deficiencies it identified in the applicant’s evidence.[36]  These findings were legally probative to the issue of the applicant’s credibility.[37]

   [35] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

   [36] CB 168-170, [13]-[17]

   [37] Kopalapillai v Minister for Immigration (1998) 86 FCR 547

6. Ground two is misconceived and bears no connection to the Authority’s reasons. As there was no new information before the Authority, it was not required to apply s.473DD of the Migration Act.[38]

   [38] CB 166, [2]

7. Neither is any arguable case of jurisdictional error apparent to me from my own reading of the Authority decision. 

8. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error. I will therefore order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

9. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. I will order in addition that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 22 July 2020