EON17 v Minister for Immigration

[2018] FCCA 3439

FEDERAL CIRCUIT COURT OF AUSTRALIA

EON17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3439

Catchwords:
MIGRATION – Protection visa – Sri Lankan – Hindu Tamil – applicant asserted that Immigration Assessment Authority failed to properly consider claims.

PRACTICE AND PROCEDURE – Show cause hearing – discursive and unparticularised grounds of review – applicant unable to make out jurisdictional error – application summarily dismissed.

Legislation:
Migration Act 1958, Pt.7AA, ss.5H(1), 36(2), 473DD, 473DE

Federal Circuit Court Rules2001, r.44.12

Cases cited:

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68
Selvadurari v Minister for Immigration and Ethnic Affairs [1994] FCA 1105
Siddique v Minister for Immigration and Border Protection [2014] FCA 1352
Spencer v Commonwealth of Australia (2010) 241 CLR 118
SZTTW v The Minister for Immigration and Border Protection [2014] FCA 837

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344

Applicant: EON17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2190 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 16 November 2018

Date of Last Submission: 16 November 2018

Delivered at: Melbourne

Delivered on: 16 November 2018

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Solicitors for the First Respondent: DLA Piper Australia

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: DLA Piper Australia

ORDERS

1. The application filed 12 October 2017 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3 737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2190 of 2017

EON17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 13 June 2018 a registrar of this court ordered this proceeding to go forward under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules 2001. Under that rule, the court is possessed of a number of options on the hearing of an application of this sort. If the court is not satisfied that the applicant has raised an arguable case for the relief that he claims the court is empowered to dismiss entire application.

2. The High Court in Spencer v Commonwealth of Australia[1] and the Full Court of the Federal Court in AMF15 v Minister for Immigration and Border Protection[2] have cautioned against the summary dismissal of a proceeding by saying that such an order should not be lightly made. I have proceeded with those authorities uppermost in mind. Two other authorities in the Federal Court have indicated that even if r 44.12 is satisfied the court possesses a residual discretion to not summarily dismiss the proceeding. Those cases are Siddique v Minister for Immigration and Border Protection[3] and SZTTW v The Minister for Immigration and Border Protection.[4]

   [1] (2010) 241 CLR 118

   [2] [2016] FCAFC 68

   [3] [2014] FCA 1352

   [4] [2014] FCA 837

Synopsis

1. For the reasons that follow, in my judgment the applicant failed to make out an arguable case in this proceeding for the relief that he claimed with the consequence that the application for judicial review that he brought by application filed 12 October 2017 must be dismissed. 

Background

1. The applicant is a male Hindu Tamil born in Indian in 1993.  On some date prior to 1990 the applicant’s parents left Sri Lanka and travelled by boat to Tamil Nadu in India.  Between 1993 and 2012, the applicant resided in Tamil Nadu, India.

2. On 25 April 2013 the applicant arrived in Australia as an unauthorised maritime arrival. He applied for a safe haven enterprise visa on 8 July 2016. He made claims for protection in his application form, in his safe haven enterprise interview and in post-interview submissions. He cast his claims to fear harm if he were to return to Sri Lanka on several bases including the following –

   a)his Tamil ethnicity;

   b)his religion;

   c)his perceived political opinion as a Tamil male whose parents originated from the northern province in Sri Lanka;

   d)his birth and residence in India as a Sri Lankan refugee;

   e)his actual or imputed pro-LTTE allegiance or his political opinion contrary to the Sri Lankan government on account of his Tamil ethnicity;

   f)his parents’ illegal departure from Sri Lanka over 25 years ago;

   g)his return to Sri Lanka without any Sri Lankan identity documents or Sri Lankan status; and

   h)by reason of the fact that he will be returning to Sri Lanka after seeking asylum unsuccessful in Australia. 

3. When this matter came before the delegate on 27 February 2017 the delegate refused the application because the applicant did not satisfy the delegate that he met the criteria of s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (“Act”). 

4. On 4 April 2017 this proceeding was referred to the Immigration Assessment Authority for review. 

5. On 15 September 2017 the IAA affirmed the delegate’s decision not to grant the applicant the visa he sought. The IAA considered the materials supplied by the secretary under pt 7AA of the Act and did not receive any further material from the applicant.

In the IAA

1. In the passages that follow immediately below I have extracted the more important matters considered by the IAA for the purposes of its considerations in this case. 

2. Between paragraphs 17 and 21 of its reasons the IAA referred to the applicant’s right to Sri Lankan citizenship. 

3. Between paragraphs 22 and 24 of its reasons the IAA referred to the applicant’s fear of returning to Sri Lanka because he was of Hindu religion.

4. Between paragraphs 25 and 31 of its reasons the IAA referred to the applicant’s fear of returning to Sri Lanka because of his Tamil ethnicity. 

5. Between paragraphs 32 and 39 of its reasons the IAA referred to the applicant’s fear of returning to Sri Lanka on account of his actual or imputed pro-LTTE political opinion or his imputed political opinion as an opponent to the Sri Lankan government by reason of his being a Tamil and his family previously having had links with the LTTE. 

6. Between paragraphs 40 and 45 of its reasons the IAA referred to the applicant’s fear of returning to Sri Lanka on account of his not holding status or identity documents in Sri Lanka.

7. Between paragraphs 46 and 49 of its reasons the IAA referred to the applicant’s fear of returning to Sri Lanka on account of his parents’ illegal departure from Sri Lanka in 1990 and on account of his having sought asylum in Australia. 

8. In paragraph 52 of its reasons the IAA said it was not satisfied the applicant met the requirements for the definition of refugee and therefore did not satisfy the elements of s 36(2)(a) of the Act.

9. In paragraph 58 of its reasons, the IAA said it was not satisfied the applicant met the criteria under s 36(2)(aa) of the Act. As mentioned above, on 15 September 2017 the IAA affirmed the decision not to grant the applicant the protection visa he sought.

In this court

1. Being dissatisfied with the decision of the IAA the applicant commenced this proceeding in this court on 12 October 2017.

2. Pursuant to orders of the registrar made 13 June 2018 the applicant was required to file an amended application with proper particulars, a supplementary court book, if any, along with written submissions prior to today’s hearing. 

3. He failed to comply with those orders. The applicant in this court relied on four grounds. His application to commence this proceeding said it was filed by him personally, yet in ground one he referred to a decision of the High Court indicating to me that he may well have had some legal assistance in formulating his grounds in this case, although nothing turns on that. It is necessary to separately consider each of the four grounds. However, before turning to them and separately considering each it is relevant to record the evidence given by the applicant before me today. Today I asked the applicant to tell me in his own words what he said the tribunal did wrong. He said he gave the tribunal “short information,” his words, but later obtained more detailed information. It was necessary to ask the applicant several times what precisely he said the tribunal did wrong in its assessment of this case.

4. He said his parents, who had lived in India, went to Sri Lanka as refugees. He said he was profiled as a Sri Lankan although he and his parents had no refugee identity documents to indicate that they were Sri Lankan. I asked him to tell me what he said the IAA did wrong as opposed to what the delegate may have done wrong. He repeated his answer recorded immediately above.

Ground one

1. Under ground one, the applicant complained that the finding of the IAA did not accept as truthful the applicant’s claims about his father having been shot and arrested and his uncle killed due to their links with the LTTE.  He also took issue with the IAA not accepting that the applicant’s father’s cousin had been taken by the Sri Lankan army or that any of those family members’ names were recorded on the CID database.  He asserted that the tribunal’s findings was both irrational and illogical and were not supported by the evidence.

2. I do not agree. 

3. The information on point was recorded between paragraphs 3 and 34 of the IAA’s reasons. The IAA addressed the point with records of the applicant’s responses during his entry interview protection visa application and his protection visa interview. At paragraph 34, the IAA recorded that the applicant had been given a number of opportunities during the protection visa interview to provide reasons why he could not return to Sri Lanka during which he made no mention of any of the claims concerning his family members’ previous incidents and alleged links to the LTTE.

4. It seemed to me that there was evidence by which the IAA was capable of reaching the conclusions it did at paragraphs 34 and 35 of its reasons.  I do not agree that the tribunal’s reasons at paragraphs 34 and 35 reflected illogicality or irrationality. 

5. Ground one was devoid of merit.

Ground two

1. Under the second ground, the applicant alleged that the IAA failed to consider the applicant’s claims to feel harm cumulatively with the result that, so he said, the IAA fell into jurisdictional error. 

2. Specifically, he pointed to his claim as a Tamil of Hindu faith whose parents originated from the north of Sri Lanka and his familial connection with the LTTE.  It must be remembered that the IAA in fact considered those claims at paragraphs 24, 31, 35 and 39 of its reasons.  In response, the minister contended that in reality at paragraphs 51 and 58 the IAA cumulatively considered the applicant’s claims. 

3. In my view, the minister is correct in its contentions. There was insufficient evidence before the IAA by which it could conclude that the applicant satisfied the definition of refugee as appears in s 5H(1) of the legislation with the consequence that the applicant did not satisfy the elements of s 36(2)(a) of the Act.

4. There was no merit in ground two and I dismiss it.

Ground three

1. Under this ground, the applicant sought to introduce the contention that the IAA’s conclusion that he was not stateless and was unsupported by the evidence. In paragraph 17 of the IAA’s reasons, the tribunal said the following –

   Country information before the delegate indicates that children born outside of Sri Lanka to Sri Lankan parents are entitled to Sri Lankan citizenship.  Parents must register their child’s birth within one year of birth for the confirmation of the child’s citizenship.  A child can still be registered for citizenship after one year of age; however a fine will be imposed.  A certificate for the Registration of Birth is issued to the applicant.

2. The IAA said in paragraph 18 of its reasons that it was satisfied the applicant was a national of Sri Lanka.  I do not accept the contention that the conclusion in paragraph 18 was made without evidence.  Today, the applicant told me that he had documents that he wished me to read indicated something in respect of his Sri Lankan status. 

3. Several things must be said about that. 

4. First, he should have but failed to adduce that evidence before the delegate. He attempted to explain his failure to put that information before the delegate on the basis that the information had recently come to hand. He did not explain why the information could not have been obtained for submission before the delegate. Next, as the Full Court tells us from the decision in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs,[5] on the hearing of a judicial review application of which this is one, I am not concerned with the activities of the delegate but rather with the activities, in this case, of the IAA.

   [5] (2004) 139 FCR 344

5. Next, the applicant was inviting me to receive evidence that was in the nature of a merits review.  According to a long line of unimpeachable authority such evidence is impermissible.  It seemed to me that based on the information before the delegate and before the IAA the conclusions the IAA reached in paragraph 18 were correct. 

6. Ground three was devoid of merit.  

Ground four

1. Under the fourth ground, the applicant sought to invoke non-compliance with ss 473DD and 473DE of the Act.

2. He contended that the IAA received new information when no exceptional circumstances existed to warrant it doing so.  It must be observed that the IAA did not in fact receive any new evidence in this case despite the applicant’s contentions to the contrary.  The IAA said as much in paragraph four of its reasons. 

3. Ground four was without merit and I dismiss it. 

Conclusion

1. Next, it became relevant to consider whether, according to the residual discretion that I possess, I should exercise it by not summarily dismissing this proceeding. 

2. In my view, there was no basis for exercising the discretion in the way the applicant contended. To the contrary. The IAA’s decision was correct and no basis for impugning it was shown. This is the very sort of case appropriate for application of the show cause procedure under r.44.12. It is also relevant to observe that the length of time between the applicant’s arrival and his making of the protection claim is relevant. The decision of Heerey J in Selvadurari v Ministerfor Immigration and Ethnic Affairs[6] says as much.

   [6] [1994] FCA 1105

3. In my view, this proceeding should be dismissed and I make an order to that effect with costs fixed in the sum of $3 737. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Associate: 

Date:   26 November 2018