Epr17 v Minister for Immigration
[2018] FCCA 2780
•26 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EPR17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2780 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable cases of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 473CB, 473DC, 473DE |
| Cases cited: AFK16 v Minister for Immigration & Anor (No 2) [2016] FCCA 1827 |
| Applicant: | EPR17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3198 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr S Valliappan of DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3198 of 2018
| EPR17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 12 September 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts concerning the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of legal submissions.
The applicant is a male citizen of Sri Lanka. He entered Australia as an unauthorised maritime arrival on 26 September 2012.[1] He applied for a Safe Haven Enterprise visa (SHEV) on 16 February 2017.[2] The applicant's claims for protection, including those provided to the delegate at interview, are summarised as follows:
[1] Court Book (CB) 2 - 17
[2] CB 33 - 97
a)in his entry interview, he did not disclose all of his problems because he was confused and frightened on arrival to Australia;
b)he was not a member of the Liberation Tigers of Tamil Eelam (LTTE) but he lived in the area controlled by them and was forced to help them sometimes;
c)in 1997, he started working as a mechanic at a motorbike repair garage in Point Pedro. The garage was opposite the Eelam People's Democratic Party (EPDP) office. The EPDP used to take motorbikes from the garage and threatened employees. To avoid harassment the applicant moved to Trincomalee in 2000;
d)in Trincomalee, he was often taken by the Sri Lankan Army (SLA) because he had an identity card from Jaffna which was an LTTE controlled area. He was interrogated about his possible links with the LTTE. On one occasion he was imprisoned for three months. After he was bailed out he was given a temporary permit to stay in Trincomalee. Each time there was an incident caused by the LTTE, he would be captured by the SLA and interrogated;
e)he established his own repair garage. He managed to obtain a resident permit in Trincomalee. He was approached by another Tamil man and asked whether he would be able to assist in repairing LTTE vehicles. Once he was taken to the LTTE base in Samboor in order to repair their bikes;
f)in 2005, he got married. He also worked as a driver for a Tamil man called M,[3] transporting people to and from the airport. On one occasion, the SLA stopped him and questioned him about the people he was transporting;
g)in 2007, he was captured by the SLA and handed over to the Karuna group. The Karuna group told him that the SLA was suspicious that he had installed explosives on the motorbikes he was repairing. They warned him that the SLA might arrest him and send him to Boosa camp. After being released by the Karuna group he discussed the situation with his wife and went to Dubai with the assistance of his wife's cousin in April 2007;
h)he stayed in Dubai from 26 April 2007 to 15 July 2008. While he was in Dubai he heard that his employer M was killed and that he was affiliated with the LTTE;
i)after he returned from Dubai he set up a garage in a new area which was partly populated by Sinhalese people. On one occasion, he was beaten by the Sinhalese people who accused him that he was trying to plant a bomb in the bathroom of the local bar. He reported the incident to the police. The police only asked a few of the Sinhalese men for identification. After this incident he continued to run the business from his house. He was often harassed by the Sinhalese home guards who asked for repairs to be done on their motorbikes without paying him;
j)in addition to this discrimination, the SLA questioned him in regards to what he was transporting while he was working as a driver. They would come to his home but he was not hurt. Due to continuous discrimination he decided to come to Australia in 2012. After he left, some men came to his wife's house and asked about his whereabouts. They came five to six times and his wife decided to move in with her mother for safety reasons.
[3] the name has been anonymised
On 24 July 2017, the delegate refused the application for the SHEV.[4] The delegate was not satisfied that the applicant faced harm for reason of his imputed political opinion, his Tamil race, or his religion.
[4] CB 132 - 152
The matter was referred to the Authority for review on 27 July 2017.[5] On 12 September 2017, the Authority affirmed the decision not to grant the applicant a SHEV.[6]
[5] CB 154 - 160
[6] CB 163 - 177
The decision of the Authority
The applicant did not provide any new information.[7] The Authority obtained further information relating to the provision of mental health services in Sri Lanka. The Authority was satisfied that there were exceptional circumstances to justify considering it.[8]
[7] at [4]
[8] [5]
The Authority considered the applicant's risk of harm on the basis that the authorities would impute him with a pro-LTTE or anti-Sri Lankan government political opinion from [12]. The Authority did not accept that the applicant had ever been arrested or detained by the Sri Lankan authorities.[9] The Authority did not accept that people had come to the applicant's house looking for him since his departure from Sri Lanka.[10] The Authority did not accept that the applicant's younger brother was taken and detained for three months by the police.[11] The Authority was prepared to accept some aspects of the applicant's claims but considered those incidents to be remote, and was not satisfied that they would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities.[12]
[9] [13]
[10] [14]
[11] [16]
[12] [18]
The Authority was not satisfied that the applicant's Tamil ethnicity, the incidents relating to the LTTE prior to 2009, the questioning by the army since 2009, the attack by Singhalese people and/or his residence would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities. The Authority made this conclusion having regard to country information that the Sri Lankan authorities do not impute every Tamil with a pro-LTTE political opinion and that the Sri Lankan authorities have sophisticated intelligence gathering techniques.[13]
[13] [22]
The Authority considered the applicant's risk of harm in Sri Lanka on the basis of discrimination against him as a Tamil from [24]. Based on the applicant's past history and the country information, the Authority was not satisfied that the applicant would be subjected to discrimination or economic hardship which would threaten his capacity to subsist or other treatment that may be regarded as serious harm.[14]
[14] [25]-[26]
The Authority accepted that the applicant was forced by the EPDP to repair motorcycles and let them take motorbikes that did not belong to them. The Authority also accepted that the applicant was handed over to the Karuna group and threatened with imprisonment if he remained in Trincomalee.[15] However, the Authority considered these incidents to be remote in time, and that the applicant had not claimed to have been of interest to these paramilitary groups in the five years before his departure from Sri Lanka in 2012.[16]
[15] [27]
[16] [28]
The Authority considered the applicant's claims to fear harm because he departed Sri Lanka illegally from [29]. The Authority accepted that the applicant departed Sri Lanka without a passport and therefore had committed an offence under the Immigrants and Emigrants Act (Immigrants and Emigrants Act). The Authority found that, on return to Sri Lanka, the applicant would likely be charged and fined under the Immigrants and Emigrants Act and then released. The Authority found that the applicant would not face any chance of imprisonment, but it was likely that he would be fined. The Authority found that the imposition of any fine, surety or guarantee would not of itself constitute serious harm. The Authority therefore found that there was not a real chance that the applicant would face such a period of detention or imprisonment.[17] The Authority also found that the provisions and penalties of the Immigrants and Emigrants Act were laws of general application that applied to all Sri Lankans equally.[18]
[17] [34]
[18] [36]
The Authority considered the applicant's claims to fear harm as a failed asylum seeker from [37]. The Authority accepted that if he returned to Sri Lanka, the applicant would do so as a failed asylum seeker. However, having regard to country information, the Authority was not satisfied there was a real chance the applicant would be harmed by the Sri Lankan authorities for this reason.[19]
[19] [38]
The Authority accepted that the applicant had experienced symptoms of anxiety, depression and post-traumatic stress disorder.[20] The Authority accepted that the applicant may have difficulty accessing the kind of specialist mental health services his condition required. However, the Authority found that there was nothing to indicate that access to mental health services in Sri Lanka was dependent on a person's ethnicity or that such services were denied for reason of ethnicity. The Authority was not satisfied that his inability to access some medical services was for reasons of his race, religion, nationality, membership of a particular social group, or political opinion.[21]
[20] [40]
[21] [42]
The Authority was not satisfied that the applicant had a well-founded fear of persecution for reason of his race, religion, nationality, membership of a particular social group and/or political opinion if he returned to Sri Lanka.[22]
[22] [43]
When considering complementary protection, the Authority considered whether the applicant would suffer significant harm for committing an offence under the Immigrants and Emigrants Act. Having regard to country information, the Authority considered that any brief detention, questioning, fine, or other penalty did not amount to significant harm. Although the applicant may be detained in poor conditions while awaiting to be brought before a magistrate, the Authority found there was no intention to inflict pain or suffering or extreme humiliation. The Authority was not satisfied that, individually or cumulatively, any processes or penalties the applicant may encounter under the Immigrants and Emigrants Act would constitute significant harm.[23]
[23] [47]-[48]
The Authority was not satisfied that there was a level of societal discrimination against Tamils in Sri Lanka such that it would constitute significant harm.[24] The Authority did not consider that the applicant's mental health condition amounted to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.[25]
[24] [49]
[25] [50]
The present proceedings
These proceedings began with a show cause application, filed on 16 October 2017. The applicant continues to rely upon that application. The grounds in it are:
1. That the decision of the second respondent, the Immigration Assessment Authority member, was affected by legal error.
2. More details will be provided by the legal representative.
The application is supported by an affidavit filed with it, which I received.
I also have before me as evidence the court book filed on 8 January 2018.
Only the Minister filed written submissions in advance of today’s show cause hearing. I invited oral submissions from the applicant. He was not able to point to any issue of concern about the Authority’s decision or the process it followed. His submissions focused on his claims for protection and significant new information which he says he now has. I declined to receive that new information, on the basis that it was not before the Authority, and could not bear on the issues before the Court. I invited the applicant to consider putting his new information to the Minister, through his Department.
The Minister’s submissions deal adequately with the grounds in the application. I agree with those submissions.
Ground 1 is broad and unparticularised. Without further particulars, it is incapable of establishing any jurisdictional error.
Ground 2 does not identify any jurisdictional error and states that more details will be provided once the applicant obtains legal representation. No additional “details” have been provided by the applicant.
The Authority's statutory obligations under Division 3 of Part 7AA of the Migration Act 1958 (Cth) (Migration Act) were complied with.
The Authority had regard to information referred by the Secretary pursuant to s.473CB, and considered the applicant's claims made in his SHEV application and to the delegate.
No new information or submissions were provided to the Authority, although the Authority wrote to the applicant and provided a copy of its Practice Direction.[26]
[26] CB 156 - 160
The Authority exercised its discretion to get new information under s.473DC, being the most recent country information relating to the provision of mental health services in Sri Lanka. The Minister submits that the Authority was not obliged to put particulars of this country information to the applicant. As identified by Judge Cameron in AFK16 v Minister for Immigration & Anor (No 2),[27] s.473DE(3)(a) of the Migration Act applies to country information and the cognate provisions of the Migration Act (such as s.424A(3)(a)) show that such information does not need to be given to an applicant. There was no error by the Authority in this respect.
[27] [2016] FCCA 1827 at [31]
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 28 September 2018
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