Eqo17 v Minister for Immigration

[2018] FCCA 2291

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2291

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 5J, 46A, 473CB

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Applicant: EQO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3229 of 2017

Judgment of: Judge Driver

Hearing date: 17 August 2018

Delivered at: Sydney

Delivered on: 17 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Dennis of Minter Ellison

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. 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, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3229 of 2017

EQO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 26 September 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts concerning the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s legal submissions filed on 10 August 2018.

3. The applicant is a citizen of Sri Lanka, who arrived in Australia at Christmas Island on 14 November 2012 and is an unauthorised maritime arrival.[1] The Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa. The applicant subsequently applied for a safe haven enterprise visa (SHEV) which was received on 29 August 2016.[2]

   [1] Court Book (CB) 1, 134

   [2] CB 44

4. On 16 March 2017, the delegate refused to grant the applicant a SHEV.[3]  The delegate's decision was a “fast track reviewable decision” and was referred by the Minister to the Authority for review.[4]

   [3] CB 134

   [4] CB 157

5. On 26 September 2017, the Authority affirmed the decision under review.[5]

   [5] CB 174

Applicant’s claims

1. The applicant claimed to fear harm in Sri Lanka on account of:

   a)his imputed Liberation Tigers of Tamil Eelam (LTTE) profile because he is a Tamil man with familial links to the LTTE, who has travelled to, and worked in, LTTE controlled areas and was suspected of supplying information, goods and weapons to the LTTE; and

   b)his status as a failed asylum seeker who left Sri Lanka illegally. 

2. In support of those claims, the applicant recounted the following events:

   a)his cousin and his brothers-in-law were involved with the LTTE and died in 1990 and 1991, respectively;

   b)from 1992 to 1994, he frequently visited an LTTE controlled area of Batticaloa to visit his wife;

   c)in 1994 or 1995, the applicant was arrested and detained by the Sri Lankan Army (SLA) during a routine round up on suspicion of working with and keeping weapons for the LTTE, he was held for four days and beaten;

   d)after he was released from detention, the applicant went to Qatar where he worked from 1995 to 1998;

   e)in 1998, he returned to Sri Lanka where he worked as a contractor in Batticaloa in both the LTTE controlled area and the government controlled area;

   f)in 2006, he returned to Qatar due to fear that he would be targeted by the authorities on the basis that they suspected he was supplying information, goods or weapons to the LTTE;

   g)in January 2012, he returned to Sri Lanka – he claimed that a friend arranged for him to pay a bribe to someone working at the airport to facilitate his entrance;

   h)in August 2012, the Criminal Investigations Department (CID) came to his home, spoke to his wife about whether the applicant had been passing messages to the LTTE, and threatened to kill him; and

   i)after the applicant’s departure to Australia in 2013, the authorities again attended his family home and asked about his whereabouts.

Authority decision

1. The Authority had regard to the material referred to it by the Secretary of the Minister’s Department under s.473CB of the Migration Act (the review material) and noted that no further information had been obtained or received.[6]

   [6] CB 175: [3]

2. The Authority accepted much of the applicant’s account including that his cousin and brothers-in-law were LTTE members, that each was now dead, that he was detained and mistreated in 1994 or 1995, travelled to LTTE controlled areas and that it was plausible that the authorities visited his home twice in 2006.[7]  However, the Authority was not satisfied that the applicant was imputed with an LTTE profile when he left Sri Lanka and was not satisfied that he would be imputed with one on his return.[8]

   [7] CB 177–178: [7]-[11]

   [8] CB 178: [12]-[13]

3. The Authority found it implausible that the authorities had an adverse interest in him from 2012 onwards given he was able to proceed through checkpoints and was not stopped or prevented from conducting his work.[9]  Accordingly, the Authority did not accept that authorities made visits to his house in 2012 and in 2013 after his departure from Sri Lanka.[10]

   [9] CB 179: [15]

   [10] CB 179: [17]

4. The Authority accepted the applicant’s claim of being detained and mistreated in 1994 or 1995, and that the authorities came to his house twice in 2006.  However, the Authority found that the applicant’s experience was “indicative of that of the general Tamil population” throughout the Sri Lankan civil war and noted that there has been significant change in the country circumstances since the end of the war and since the applicant departed Sri Lanka.[11]

   [11] CB 180: [21]

5. The Authority was also not satisfied that the applicant would face harm on return to Sri Lanka for reason of his illegal departure or asylum claim.  The Authority accepted that the applicant may be questioned by police at the airport for up to 24 hours, fined for breaching the Immigrants and Emigrants Act 1949 (Immigrants and Emigrants Act), and may be detained for a brief period in poor prison conditions. However, it found that this would not constitute serious harm under s.5J(5) of the Migration Act. Furthermore, the Authority was also satisfied that the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act would be the result of a law of general application and does not amount to persecution for the purpose of s.5H(1) and s.5J(1) of the Migration Act.[12]

   [12] CB 182-183: [26]–[35]

6. For those reasons, and considering the applicant’s claims cumulatively,[13] the Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act.[14]  For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion.[15]

   [13] CB 211: [36]

   [14] CB 211: [36]-[37]

   [15] CB 184: [40]

The present proceedings

1. These proceedings began with a show cause application lodged on 18 October 2017.  The applicant continues to rely upon that application.  There are two grounds in it:

   1.IAA made a jurisdictional error by not finding the Convention nexus.

   Particulars
        Applicant was suspected of LTTE connections.

   2.IAA did not consider the country information.

   Particulars
        IAA made a jurisdictional error.
        LTTE supporters are still persecuted in Sri Lanka.
   There was other information suggesting that persons like the Applicant will be persecuted on return to Sri Lanka.

2. I have before me as evidence the applicant’s affidavit filed with his application and the court book filed on 5 December 2017. 

3. Only the Minister filed written submissions in advance of today’s hearing.  I invited oral submissions from the applicant today.  He told me that he cannot return to Sri Lanka and that those who have returned have experienced problems there.  He is concerned that the situation for Tamils remains bad and he seeks a more sympathetic consideration of his claims.  These are matters that the Minister could consider if he were so minded. They are beyond the scope of this proceeding.

4. The applicant also told me that after the decision of the delegate, there was a further incident at his home in Sri Lanka.  He says that he had further information to support his claims for protection, but he did not submit it to the Authority because he understood that new information was not permitted. 

5. The Authority decision records at [3] that the Authority relied upon the material given by the Secretary under s.473CB of the Migration Act. No further information was obtained or received. It would be unfortunate if the applicant had further information to submit to the Authority and did not do so because of a belief that it would not be considered. It is not clear if that view by the applicant came about because of discussion with others or because of his interpretation of correspondence he received from the Authority after the referral of the matter to it. There is nothing in the information sent by the Authority to the applicant following the referral which would support an argument of jurisdictional error. Plainly, the Authority can only consider what it has or gets.

6. I otherwise agree with the Minister’s submissions concerning the grounds of review.

Ground 1

1. Ground 1 in substance asserts that the Authority made a jurisdictional error by not finding the Convention nexus in circumstances where the applicant was suspected of LTTE connections.

2. This ground is misconceived for the following reasons.  First, as the Authority did not accept that the applicant faced a real chance of serious harm on return to Sri Lanka for any reason, it was not required to make a finding as to whether the applicant would be targeted for the claimed serious harm for a Convention reason.  Secondly, contrary to the applicant’s assertion, the Authority found that the applicant would not be imputed with an LTTE profile on his return.[16]  Therefore, this complaint has no factual basis.

   [16] CB 179: [17]

3. The Authority considered the applicant’s claims and made findings that were open to it on the available evidence for the reasons it gave.[17]  No arguable case of jurisdictional error is revealed by this ground of review.

   [17] See CB 176-179: [5]-[44]

Ground 2

1. Ground 2 asserts that the Authority made a jurisdictional error by not considering the country information in circumstances where there was information that suggested that persons like the applicant will be persecuted on return to Sri Lanka.

2. Again, this ground is without merit.  Contrary to the applicant’s assertions, the Authority had regard to the country information.  The Authority considered country information in relation to Tamils being stopped for security checks during the war,[18] being the subject of house to house searches during the war,[19] people with a past LTTE connection possibly facing harm on return to Sri Lanka[20] and the potential penalties people who have illegally departed Sri Lanka may face upon their return.[21]

   [18] CB 177: [10]

   [19] CB 178: [11]

   [20] CB 181: [23]

   [21] CB 183: [35]

3. The applicant has not identified the relevant country information that the Authority failed to consider or otherwise provided sufficient particulars in support of the assertion of error in this ground.  In these circumstances, it is difficult to properly assess the applicant’s complaint in this ground and the applicant’s complaint is in substance a request for impermissible merits review.[22]

   [22] Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35–36; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272

4. For these reasons, this ground does not raise an arguable claim for relief.

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant enquired about his liability flowing from a costs order, but he did not oppose the costs order being made. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:       20 August 2018