EPE19 v Minister for Immigration and Anor

[2020] FCCA 1103

FEDERAL CIRCUIT COURT OF AUSTRALIA

EPE19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1103

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority did not take into account relevant considerations – whether the Authority misapplied the relevant law – no arguable case for the relief claimed – application dismissed pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 44.12

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

Applicant: EPE19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3023 of 2019

Judgment of: Judge Street

Hearing date: 7 May 2020

Date of Last Submission: 7 May 2020

Delivered at: Sydney

Delivered on: 7 May 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Zinn via Microsoft Teams
Mills Oakley

ORDERS

1. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

Date of order: 7 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3023 of 2019

EPE19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 pt 7AA of the Act made on 17 October 2019 affirming the decision of a delegate of the first respondent (“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 was found to be a Tamil Hindu from the Northern Province of Sri Lanka and that the area had been under the control of the Sri Lankan Army (“SLA”) during the civil war.

3. The applicant, in summary, claimed to fear harm by reason of his race or ethnicity being Tamil, an imputed political opinion and/or imputed connection to the Liberation Tigers of Tamil Elam (“LTTE”) and being a failed asylum seeker who departed Sri Lanka illegally.

4. On 9 September 2019, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 12 September 2019, the Authority wrote to the applicant explaining that the application had been referred to the Authority for review. The letter attached a fact sheet and practice direction, providing the applicant an opportunity to put on submissions and new information. The applicant put on submissions and new information that were expressly referred to in the Authority’s reasons.

6. The Authority in its reasons summarised the background to the Safe Haven Enterprise visa application. The Authority had regard to the material provided by the Secretary under s 473CB of the Act.

7. The Authority took into account the whole of the provisions of s 473DD of the Act and was not satisfied that there were exceptional circumstances to justify considering the new information.

8. The Authority summarised the applicant’s claims.

9. The Authority accepted that there was a landmine attack about 100 metres from the applicant’s home in 2009. The Authority accepted that the applicant and four or five other people who were in the vicinity were taken to the Criminal Investigation Department (“CID”) office and that the applicant was questioned and beaten while he was detained and then released the same day.

10. The Authority found it implausible that the CID would continue to ask for the applicant after the incident and having been released in 2009. The Authority did not accept that the Sri Lankan authorities or CID had an adverse interest in the applicant in 2012.

11. The Authority referred to an incident involving the destruction of a crop and the CID targeting the applicant. The Authority did not accept that the applicant was threatened by the CID as claimed.

12. The Authority referred to the applicant’s claims that the CID came to his house and took his photograph and then went to his workplace twice and photographed him. The Authority found the applicant’s claims in this regard to be unconvincing and implausible and did not accept them.

13. The Authority referred to the applicant’s claim that he was hiding in a nearby village for the last six months before he left Sri Lanka. The Authority did not accept that the applicant was in hiding and found that the applicant had fabricated this claim to strengthen his application for protection.

14. The Authority referred to the applicant’s different accounts about the CID visiting his wife and visiting his parents. The Authority was not satisfied that the CID ever came to the applicant’s parents’ or his wife’s houses looking for or asking about the applicant.

15. The Authority did not accept the applicant’s claims concerning his fear in respect of abduction in a white van.

16. The Authority referred to a copy of an undated letter that purported to be from a Member of Parliament. The Authority pointed out inconsistencies with the applicant’s claims and referred to country information identifying the prevalence of fraud and placed no weight on that document or its contents.

17. The Authority also referred to the applicant’s claims concerning other letters sent from his village, including a person which the applicant referred to as “my bishop”, disclosing problems the applicant had faced. The Authority noted that no such letters had been provided despite the applicant having been given an opportunity to do so.

18. The Authority was not satisfied that there is a real chance the applicant will suffer harm from the CID or any other Sri Lankan authorities on his return to Sri Lanka.

19. The Authority did not accept that the applicant faces a real chance of harm on the basis of imputed LTTE connections.

20. The Authority was not satisfied that the applicant will face a real chance of any harm during the standard procedure that he will undergo upon return to Sri Lanka at the airport.

21. The Authority did not accept that any social stigma that the applicant may face from his community upon return would amount to serious harm.

22. The Authority accepted that the applicant departed Sri Lanka illegally but was not satisfied that the applicant would be unable to pay a fine upon return to Sri Lanka. The Authority found that the investigation, prosecution and punishment for illegal departure under the Immigrants and Emigrants Act (Sri Lanka) does not amount to persecution within the meaning of s 5J(4) of the Act.

23. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

24. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there is a real risk that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

25. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 20 November 2019.

2. On 12 December 2019, a Registrar of the Court fixed the matter today for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The Registrar also made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

3. At the commencement of the show cause hearing, the Court explained to the applicant the nature of the show cause hearing and the applicant confirmed that he understood the nature of the show cause hearing as explained by the Court.

4. From the bar table, the applicant maintained that he disclosed all his problems to the Department of Immigration and Border Protection and maintained that those problems are what had occurred to him and disagreed with the adverse findings by the Authority.

5. The applicant’s disagreement with the Authority’s adverse findings does not identify any arguable case of relevant error. On the face of the Authority’s reasons, the Authority made dispositive findings of the whole of the applicant’s claims that were open for the reasons given by the Authority.

6. The applicant’s disagreement with the adverse findings concerning the Member of Parliament letter, the role of the CID and in relation to his explanation for his reference to the bishop invites impermissible merits review. The applicant’s submissions in relation to the change of government and his not being safe in returning to Sri Lanka, again, invite impermissible merits review.

7. The applicant did not identify any claim or evidence that was not considered by the Authority. On the face of the Authority’s reasons, the Authority had an active intellectual engagement with the applicant’s claims and the applicant’s evidence.

8. The applicant’s oral submissions failed to identify any arguable case of jurisdictional error by the Authority.

Grounds in the Application

1. The grounds in the application are as follows:

   Ground I

   IAA made jurisdictional error by failing to consider the whole evidence before it.

   Particulars

   Authority failed to consider Applicant's whole evidence including torture as he was tortured on suspicion of a bomb blast.

   Ground 2

   IAA made jurisdictional error by misapplying the well-founded fear test.

   Particulars

   Authority failed to consider that Applicant fulfilled the grant of protection following torture and mistreatment for a Convention reason.

Ground 1

1. In relation to ground 1, there is no evidence that has been identified that the Authority failed to take into account. The Authority referred to the landmine and the applicant being beaten when he was taken by the CID for interrogation but identified that he was released on the same day. The Authority did not accept the applicant’s claims in relation to being of continuing interest to the Sri Lankan authorities or the CID. No arguable case of jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Authority correctly identified the relevant law. The applicant’s disagreement with the Authority’s adverse findings does not identify any misapplication of the relevant law. The Authority, on the face of its reasons, considered the whole of the applicant’s claims and made dispositive findings that were open to it under the 1951 Refugee Convention and in relation to complementary protection. There was no failure to consider an integer of the applicant’s claims on the face of the Authority’s reasons. No arguable case of jurisdictional error is made out by ground 2.

2. The Court is not satisfied that the application has raised an arguable case for the relief claimed within r 44.12 of the Rules. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. Accordingly, the application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 19 June 2020