Eoz20 v Minister for Home Affairs

[2019] FCCA 3937

FEDERAL CIRCUIT COURT OF AUSTRALIA

EOZ20 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3937

Catchwords:
MIGRATION – Application for safe haven enterprise visa – fears unfounded based upon country information – adverse findings – application dismissed.

Legislation:

Migration Act 1958 (Cth). ss.5H, 36(2), 473CB, 476.

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: EOZ20

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 577 of 2020

Judgment of: Judge Egan

Hearing date: 30 May 2019

Date of Last Submission: 30 May 2019

Delivered at: Brisbane

Delivered on: 30 May 2019

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms C. Juarez of Minter Ellison

IT IS ORDERED THAT:

1. The application for review filed on 18 July 2018 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 577 of 2020

EOZ20

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka of Tamil ethnicity.  He arrived in Australia as an unauthorised maritime arrival on 8 November 2012.

2. On 14 March 2016, the applicant applied for a SHEV, assisted as he was by a registered migration agent.  On 6 December 2017, the applicant’s migration agent provided post‑interview submissions which expanded the applicant’s protection claims. On 2 May 2018, a delegate of the Minister refused to grant the applicant a SHEV. On 2 July 2018, the Immigration Assessment Authority (‘the Authority’) affirmed the delegate’s decision.

3. On 18 July 2018, the applicant made application for review of the Authority’s decision pursuant to the provisions of s. 476 of the Migration Act 1958 (Cth) (‘the Act’).

4. At [3] of the reasons of the Authority, it was recorded that the Authority had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Act.

5. At [10] of the Authority reasons, the applicant’s claims were summarised as follows:

   ·“He is a Tamil male of Hindu faith from the Eastern Province of Sri Lanka.

   ·In 2005, whilst in high school, the applicant undertook compulsory LTTE training.

   ·In 2006 the applicant and his family were displaced by the civil conflict and lived in a refugee camp in Trincomalee.

   ·The applicant travelled to Qatar for work in 2007 and returned to Sri Lanka in December 2008.

   ·The applicant’s friends from school who lived at the refugee camp were being detained and questioned by the Sri Lankan Army (SLA) for participating in the compulsory LTTE training in 2005. The applicant feared he would be subjected to mistreatment so he lived with relatives outside of the refugee camp.

   ·In May 2012 the applicant decided to leave Sri Lanka and with the assistance of his father he made arrangements to depart illegally by boat.

   ·Since departing Sri Lanka the Criminal Investigation Division (CID) have stopped and questioned his father about his whereabouts. His brother has been questioned by other participants of the LTTE training and he suspects they are now working for the SLA or CID.

   ·His cousin was abducted by the SLA.”

6. There are three grounds of review as set out on page 3 of the originating application as follows:

   “1. The Second Respondent erred in law by making a decision not taking into relevant information, particularly that she is a young female who may be subject to degrading sexual harassment.

   2. The Second Respondent ignored relevant material in a way that affected its exercise of power.

   3. The Respondent has not properly considered the alternative criterion in under the Complimentary protection.”

7. At [8] and [9] of the reasons, the Authority dealt with the question as to whether exceptional circumstances existed for justifying it to consider information constituted by an Amnesty International annual report published on 22 February 2018, and a Guardian newspaper article which also was said to predate the delegate’s decision.  In each respect, the Authority found that it was not satisfied that there were exceptional circumstances justifying consideration of the information, nor that the article could not have been provided to the delegate prior to their decision.

8. At [17] of its reasons, the Authority found that the applicant’s explanation as to what he believed happened to his friends, and why he believed he would be subsequently targeted was unsupported and unconvincing.  At [17] of its reasons, the Authority also noted that the applicant had been consistent in claiming that he travelled from Sri Lanka to Qatar in 2007 for work purposes, and that he had worked there for just under two years performing labouring jobs and painting jobs.  It was noted that the applicant stated that he travelled to Qatar on a passport issued by the Sri Lankan authorities, and that he exited and re‑entered Sri Lanka via the international airport at Colombo, having no issues in doing so.  It was also noted by the Authority that that suggested that the applicant was not known to authorities, nor that he had a profile that would warrant the adverse attention of security.  The Authority noted that that period of time was between 2007 until 2009.

9. The Authority, at [21] of its reasons, was prepared to accept that the applicant had extended family who were connected to the LTTE, but was not satisfied that they held any high positions, or that their doing so would result in the applicant suffering any adverse consequences.  The Authority found that it did not accept that the applicant’s cousin had been abducted ([24] at CB298).  The applicant was not accepted as being a person of interest to the authorities at the time he left Sri Lanka in 2012 ([26] of Authority reasons at CB298).  The Authority did not accept that the applicant was associated with politically sensitive issues, or that he had a profile that would otherwise be of concern to the authorities ([32] of Authority reasons at CB299-300). 

10. At [33] of its reasons, the Authority referred to country information.  In reliance upon that country information, the Authority was not satisfied that the applicant faced a real chance of any harm on account of his ethnicity, his origins in the east, his LTTE training as a young man, or his relationship to his uncle and two cousins.  There was no information to suggest that the applicant was either on a Stop list or a Watch list.

11. At [36] of its reasons, it was recorded by the Authority that DFAT country information suggested that a failed asylum seeker could face some social stigma and resentment in relation to financial assistance being given to returnees, but it was found at [38] of its reasons that based on country information, the Authority was not satisfied that the applicant faced a real chance of serious harm as a returning asylum seeker.

12. At [40] of its reasons, it was recorded by the Authority that a returnee may remain in custody at the airport office for up to 24 hours or two days if a magistrate was not available because of a public holiday or a weekend, but that such holding was found by the Authority as to not constitute persecution, or that the applicant would face serious harm should he be returned with such result.

13. At [44] of its reasons, the Authority found that the applicant did not meet the requirements of a refugee pursuant to section 5H(1) of the Act, nor that the applicant met the relevant section 36(2)(a) criteria. For the reasons advanced in respect of the refusal of the refugee contentions made by the applicant, the Authority, when dealing with the issue of complementary protection, was not satisfied that the applicant suffered a real risk of significant harm should he be returned to Sri Lanka. The applicant was found not to satisfy the relevant section 36(2)(aa) criteria.

14. The Authority has closely dealt with the claims made by the applicant.  The unparticularised grounds for review contained in the originating application are so lacking in specificity as to disentitle close consideration. Nevertheless, the first respondent has not taken the point.  The grounds, in any event, have not been made out. 

15. It cannot be said that the Authority failed to make an obvious inquiry about a critical fact. [1] Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Authority. [2]

    [1]        Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27].

    [2]        Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130].

16. Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

17. The applicant has not satisfied the Court that the Authority has fallen into jurisdictional error.

18. The application for review is without merit and is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 26 June 2019