ENP19 v Minister for Immigration
[2020] FCCA 1216
•5 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ENP19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1216 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa (protection visa) – whether the Authority exercised its discretion under s 473DD of the Migration Act 1958 (Cth) – whether the Authority excluded information from its consideration of the applicant’s case – whether the Authority found that exceptional circumstances did not exist to allow consideration of information – whether the Authority did not complete its Statutory task in assessing the harm to the applicant – whether there is jurisdictional error – no jurisdictional error made out – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473, Part 7AA |
| Cases cited: DUX16 v Minister for Immigration and Border Protection [2018] FCA 1529 FET18 v Minister for Home Affairs (no 2) [2019 FCA 1524 Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Jama Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292 Vo v Minister for Home Affairs [2019] FCAFC 108 |
| Applicant: | ENP19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2990 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 18 May 2020 |
| Date of Last Submission: | 18 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 5 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Godwin |
| Solicitors for the Applicant: | Stephen Hodges Solicitors |
| Counsel for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
Grant leave for the applicant to rely upon the Amended Application filed 25 May 2020.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2990 of 2019
| ENP19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka. The applicant arrived in Australia on 8 November 2012 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise Visa (protection visa) on 16 March 2017. The applicant claimed to fear harm because of his imputed association with the Liberation Tigers of Tamil Eelam (“the LTTE”), including owing to his relationship with his brother.
A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a protection visa on 17 September 2019.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 24 October 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Authority’s decision.
The Immigration Assessment Authority’s Decision
Given the grounds of appeal that appear below, it is not necessary to completely summarise the Authority’s decision.
At paragraph 6 of its decision, the Authority notes that in a statement provided to it, the applicant provided an extract from Aljazeera, in support of the contention that “elections are soon to be held in Sri Lanka, and the former Defence Chief, Mr Gothabaya Rajapaksa, who is feared by the minority Tamils and victims of human rights abuses is likely to come to power”. The Authority notes this post-dates the delegates’ decision and is general country information. The report documents potential forerunners in the upcoming elections. The Authority considers it to be mere speculation that these individuals are likely to come to power. The Authority was not satisfied that there were exceptional circumstances to justify the consideration of this new information.
At paragraph of its decision, the Authority 8 sets out the applicant’s claims for protection. These include that the applicant is of Tamil ethnicity, in the Eastern Province of Sri Lanka. The applicant’s brother, S, was a member of the LTTE for about six years. After the Karuna group split from the LTTE, the Karuna group started to look for people who had been members of the LTTE. S was threatened and the applicant paid for him to go overseas in 2009. After S had departed, a group of men came to the family home and threatened the applicant’s family. The applicant was physically assaulted and threatened with a gun. They broke possessions, stole money and a mobile phone from the applicant. After the applicant reported the incident to police, the Karuna group and the Criminal Investigation Department (“the CID”) threatened him. The applicant decided to leave and come to Australia to ensure his safety. Since then, the applicant’s family have been contacted and his wife has been told if he returns, he will be arrested. The applicant claims he identifies as a Tamil patriot and supports the LTTE.
The applicant contends he will be harmed, including being detained, interrogated tortured or killed on his return because of his ethnicity, actual and/or imputed political opinion, arising from his profile as a young Tamil male, who only speaks Tamil and resided in the majority Tamil area in the Eastern Province, his own and his family’s material support for the LTTE, his illegal departure and possible return as a failed asylum seeker.
After setting out the applicant’s evidence, including material given during the course of the investigation of his claims by the Department, at paragraph 27 of its decision, the Authority concluded that it is not satisfied that the applicant is a truthful witness, regarding his past experiences in Sri Lanka. The Authority does not accept the applicant’s version of events which he claims, led him to leave Sri Lanka. The Authority was not satisfied that his brother S was a member of the LTTE. The Authority was not satisfied S received threats or that the applicant was threatened physically assaulted or robbed and the applicant had to leave the family home and go into hiding.
At paragraph 34 of its decision, the Authority rejects the applicant’s claims regarding his activities in Australia. The Authority concluded that there was no credible evidence to suggest that Sri Lankan authorities or any groups or individuals, would be currently interested in seeking the applicant’s whereabouts and was not satisfied as to his version of events regarding his wife, children and extended family, who remain in Sri Lanka.
At paragraph 45 of its decision, the following is stated;
I have had regard to the post interview submissions indicating that recent political events suggest the re-emergence of anti-Tamil elements in the highest echelons of power in Sri Lanka, such as attempts to reappoint former President Mahinda Rajapaska, the potential return of Rajapaska’s brother to the political scene, and the re-emergence of war criminal Karuna. I accept that Sri Lanka is the still yet to fully come to terms with its legacy of large-scale past abuses committed in the war and its aftermath, and is yet to truly achieve reconciliation; and while I have considered the sources and associated contentions raised by the former representative and the analysis of commentators and organisations in the sources in the review materials, I consider it too speculative to conclude that the reasons referred to by the applicant or the former representative will lead to risk of harm to the applicant on his return. Rather, I am satisfied that the advice and commentary from DFAT, and UK Home Office remains relevant and that the Sirisena government maintains effective control.
At paragraph 46 of its decision, the Authority accepts that there is credible evidence of serious harm being perpetrated against certain Tamils, associated with or perceived to be associated with the LTTE, by Sri Lankan authorities in pre and post-war Sri Lanka. The Authority was not satisfied however, that the applicant’s past or present circumstances, would lead to a real chance of any adverse interest or consequences for him on return.
The balance of the decision deals with consideration of potential risks to the applicant returning, as a failed asylum seeker and complimentary protection requirements. Ultimately, the Authority decided to affirm the decision of the delegate, not to grant the applicant a protection visa.
Grounds of Appeal
An amended application was filed with the Court on 25 April 2020. Counsel for the first respondent advises they do not oppose the grant of leave to rely upon the amended application. In these circumstances, leave to rely upon the Amended Application was granted.
The amended grounds are as follows:
Ground one
The Authority’s exercise of discretion under 473DD was legally unreasonable as:
a) it was manifestly unjust for the Authority to exclude from its consideration of the applicant’s case the reporting of the fact that there had been a date set for the Presidential election in Sri Lanka in November 2019 as this date was set after the delegate made the decision and the Authority had no other source from which to deduce this information;
b) Given the changing political landscape and the implications of that for the applicant it was unreasonable for the Authority to find that exceptional circumstances did not exist to allow consideration of reporting from independent media commentators as to who might win this election.
Ground two
The Authority did not complete the exercise of its Statutory task is assessing the harm to the applicant as it did not undertake reasonable speculation as to who might win the presidential election in Sri Lanka.
The Applicant’s Submissions
The applicant’s submission is confined to a relatively small area. Counsel for the applicant submits that the Authority’s assessment of whether or not there were exceptional circumstances to consider new information, under s 473DD of the Migration Act 1958 (Cth) (“the Act”), is conditioned by reasonableness (see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [21]). As the Authority was required to make an assessment of what was likely to happen to the applicant upon return, this requires an assessment of the foreseeable future. This necessarily requires the Authority to engage in some speculation, which includes reasonable speculation about the chances of a hypothetical future event occurring (see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60]). Further, the Authority has an obligation to have regard to the most up to date country information before it (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 at [44] – [45]).
As to ground two, given that the election was happening, it is a dereliction in its statutory task and unreasonable for the Authority to close its mind to reasonable speculation, as to who might win the election. The exclusion of the Aljazeera reports were unreasonable. The reports were credible commentary from an independent news agency. There was no evident or intelligible justification for the exercise of power, which was manifestly unjust. The Authority’s decision is premised upon the Sirisena government maintaining effective control. The chance of a change of government was a real one. The history of abuses of the Tamil population by the Rajapaska government was well-established.
During the course of oral submissions, Counsel for the applicant referred the Court to three additional cases, being Minister for Immigration and Multicultural Affairs v Jama [1999] FCA 1680 at [24]; DUX16 v Minister for Immigration and Border Protection [2018] FCA 1529 at [26] and SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292 (“SZQXE”) at [7].
The First Respondent’s Submissions
Counsel for the first respondent notes that s 473DD of the Act does not confer discretion upon the Authority, it imposes a statutory prohibition on the Authority considering new information, unless there are exceptional circumstances to justify considering the new information, pursuant to s 473DD(a) of the Act and the information meets one of the two requirements set out in either s 473DD(b)(i) or s 473DD(b)(ii) of the Act. These requirements are cumulative.
Counsel for the first respondent notes that the applicable principles in relation to legal unreasonableness, were recently summarised in Vo v Minister for Home Affairs [2019] FCAFC 108 at [43]. The Authority’s findings at paragraph 6 of its decision, have regard to the relevance of the matters under s 473DD(b)(i) and s 473DD(b)(ii) of the Act, but it formed the view that s 473DD(a) of the Act was not met. It did so by reference to relevant matters, including the nature of the new information, being general country information, its probative value and its degree of relevance (see FET18 v Minister for Home Affairs (no 2) [2019 FCA 1524 at [20] and [33]).
Counsel for the first respondent submitted that there is no requirement in reviews, under Part 7AA of the Act, for the Authority to have regard to the most up-to-date country information. This is because it was a “fast track” reviewable decision, where the Authority is to consider review material without accepting or requesting new information (see s 473CB of the Act). Nor is the Authority under a general obligation to conduct enquiries.
The Authority considered submissions from the applicant’s representative to the delegate, regarding the upcoming election which conveyed the same fundamental points. These points were considered explicitly by the Authority at paragraph 45 of its decision. The Authority was aware that presidential elections were to be held in late 2019, as this was contained in the Department of Foreign Affairs and Trade (“DFAT”) Country Information Report 2018 that was before the Authority. No jurisdictional error is revealed.
In relation to ground two, this alleges that the Authority constructively failed to complete its review function because it “did not undertake reasonable speculation as to who might win the presidential election in Sri Lanka”. Counsel for the first respondent submitted that there is no obligation on the Authority to attempt to engage in predictive exercise as to who might win the election. A fear of persecution is not well founded if it is merely assumed, or if it is mere speculation (see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at [572]).
The Authority, at paragraph 45 of its decision, did engage in a degree of speculation in its second last sentence, but found that having engaged in the speculation it was “too speculative” to conclude that the applicant was at risk of harm, on his return, by reference to recent political events. The applicant’s complaint, in essence, is having engaged in the speculation it did, the Authority did not arrive at a different factual conclusion. No jurisdictional error is revealed.
Consideration
Ground one asserts legal unreasonableness in rejecting the information contained in newspaper articles that postdate the Minister’s decision.
The review in this case, was conducted by the Authority, as a fast track review. As pointed out by Counsel for the first respondent, the review must be conducted by the Authority, by considering the review material provided to it by the Secretary, pursuant to s 473CB of the Act, without accepting or requesting new information and without interviewing the referred applicant (see s 473DB (1)(a) and s 473DB (b) of the Act).
Section 473DD of the Act provides that new information can only be considered, if the Authority is satisfied there are exceptional circumstances to justify considering the new information (see s 473DD(a) of the Act) and was not and could not have been, provided to the Minister before the decision was made or was credible personal information, which was not previously known (see s 473DD(b)(i) and s 473DD(ii) of the Act).
The information complained about was clearly considered by the Authority at paragraph 6 of its decision. The Authority found that there were no exceptional circumstances to consider the information. The information was not personal information but did post-date the Minister’s decision. Given it was general country information only and was otherwise covered by the DFAT Country Information report, that was before the Authority, as regards that an election was due in Sri Lanka, the Authority found there were not exceptional circumstances.
The applicant complains that the information was different, in that it postulated who the front runners in the election were and that it was likely Mr Gothabaya Rajapaksa would be elected. If this occurred, then the applicant had a genuine fear returning to Sri Lanka as a Tamil male.
What is exceptional, is not capable of precise definition. The Court agrees with the first respondent that it is clear the Authority undertook an evaluative judgement, in relation to whether or not the information should be received. This is what the Authority was required to do. The mere fact that the applicant disagrees with the outcome of the evaluative exercise conducted by the Authority, does not mean that the decision is legally unreasonable.
The Court agrees with the first respondent that the test for legal unreasonableness is stringent, factually dependant and extremely confined. Given that there was already information before the Authority regarding the elections, the Court is not satisfied that there is anything legally unreasonable in the decision to exclude the information, bearing in mind the requirements for the conduct of fast track reviews, as set out above. The decision to exclude the information in the circumstances of this case, where the Authority was otherwise aware of the coming elections, is not so unreasonable that no reasonable decision maker could have come to the same decision or meets the test of being illogical or irrational. No jurisdictional error is made out.
Ground two asserts the Authority constructively failed to complete its review function. It is suggested that the Authority was required to consider who might win the election and what impact that would have. The Court is satisfied that the Authority did engage with what might happen to the applicant, if returned to Sri Lanka at paragraph 45 and 46 of its decision. Paragraph 45 of the Authority’s decision dealt with the then political instability within Sri Lanka. Significantly at paragraph 46 of its decision, the Authority found the applicant’s past or present circumstances, would not lead to any real chance of any adverse interest or consequences upon return. This focused upon the reasonably foreseeable future.
The Authority concluded it was too speculative to conclude that the political situation within Sri Lanka, would lead to a risk of harm to the applicant on his return. By extension, the Authority was unable to engage in speculation as to what might happen, following the elections due at the end 2019. The Court is satisfied that the Authority did undertake its task and considered all relevant material that was properly before it.
The Authority considered the possibility of a change in circumstances, as set out in SZQXE at [7], but was not satisfied that there was a real risk. This is clear at paragraphs 75 and 76 of the Authority’s decision. There was no failure to complete its review function. If anything, this ground simply cavils with the outcome of the review and asks the Court to engage in merits review.
If there has been a significant change in the political situation in Sri Lanka, as a result of the outcome of the elections at the end of 2019, then that is properly a matter which should be dealt with by Ministerial intervention. It is not a matter however, of jurisdictional error, by the Authority.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 5 June 2020
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