Ere18 v Minister for Home Affairs
[2019] FCCA 262
•7 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ERE18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 262 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s decision is affected by illogicality or legal unreasonableness – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 476. |
| Applicant: | ERE18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2536 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 7 February 2019 |
| Date of Last Submission: | 7 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2019 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Mr J Lambe HWL Ebsworth |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $3,900.00.
DATE OF ORDER: 7 February 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2536 of 2018
| ERE18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 17 August 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Lebanon, and his claims were assessed against that country. The applicant is a Sunni Muslim and feared extremist Muslims who want to recruit young men and also feared the Hezbollah, who support the Shia community near his town.
The applicant also has a need for medication because of an irregular heartbeat and feared inadequate health care in Lebanon. The applicant married an Australian permanent resident and has two daughters who are Australian residents. The applicant maintained that he would not return to Lebanon without his wife and children and that it is not safe for them in Lebanon.
The applicant arrived in Australia as an unauthorised maritime arrival on 6 May 2013.
On 26 June 2018, a delegate found the applicant failed to meet the criteria for the grant of a safe haven enterprise visa.
On 2 July 2018, the Authority wrote to the applicant explaining that the application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. No such documents were provided to the Authority.
The Authority in its reasons identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act.
The Authority summarised the applicant’s claims. The Authority accepted that the applicant would return to his home area, where his parents and some of his siblings continue to reside. The Authority found the applicant came to Australia because he has a brother here and was looking for better opportunities. The Authority expressly referred to the applicant marrying and having two children and starting his own business. The Authority referred to the applicant being of the view that he could access better quality health care and a better future for him and his young family in Australia.
The Authority turned to the question of whether the applicant faces a real chance of harm if he returns to his home area in Lebanon in the reasonably foreseeable future. The Authority found the applicant could reside with his parents or other siblings in Lebanon whilst re-establishing himself and finding work. The Authority did not accept any difficulties finding work on return to Lebanon would amount to serious harm. The Authority did not accept the applicant as a young Sunni male in northern Lebanon, a Sunni-majority area, would be denied employment for any the reasons identified in s 5J(1)(a) of the Act.
The Authority referred to the applicant’s fear of being recruited by a militant group. The Authority noted the applicant conceded he was never approached by such a group. It was in these circumstances that the Authority found this claim is mere speculation and does not establish a well-founded fear of persecution.
The Authority referred to the applicant’s fear of being caught between Syrians and Hezbollah. The Authority referred to DFAT country information and noted that the applicant’s family or community are not involved in activities of the kind identified in the country information and that there is no evidence they have ever been caught up in generalised violence.
The Authority found the chance of the applicant as an ordinary Sunni living in his home region facing serious harm, such as being caught up in generalised violence or cross-border reprisal attacks is remote. The Authority found the applicant does not have a real chance of harm in his home area from Syrians or from any parties involved in the Syrian conflict.
The Authority found the applicant’s chance of harm from Hezbollah is too remote to amount to a real chance.
The Authority referred to the concerns raised by the applicant in respect of his heart condition and taking his young family to Lebanon. The Authority found neither the health condition nor family responsibilities raise any credible claims that the applicant faces a real chance of harm for any of the reasons identified in s 5J(1)(a) of the Act.
The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria under s 36(2)(a) of the Act.
The Authority turned to the issue of complementary protection and expressly considered the applicant’s fears in relation to his health if he returns to Lebanon.
The Authority referred to DFAT country information that indicates Lebanon’s health facilities have historically been considered adequate, but they are under strain. The Authority was not satisfied that a health system that is under strain is evidence of an intention to inflict any of the significant harms defined in s 5 of the Act. The Authority found there is no evidence that health care would be withheld from the applicant such as to amount to a real risk that he will be arbitrarily deprived of his life. The Authority found the consequences of scarce medical resources do not fall within the concept of arbitrary deprivation of life. The Authority acknowledged the applicant may currently be receiving better health care than he would in Lebanon but found that the definition of significant harm does not include a right to access a certain standard of health care.
The Authority referred to the applicant’s family and that he is not willing to be separated from them, so if he is unable to remain in Australia, they will go to Lebanon with him. The Authority referred to the applicant’s claim that they would have a better life in Australia and that Lebanon is not safe for them. The Authority referred to DFAT country information in relation to the history of migration and return. The Authority found there is nothing in the country information to indicate women and children are at greater risk of being caught up in generalised violence in the applicant’s home region than the applicant would be, or that as a family group his risk would be greater. The Authority, relying on the country information, found the risk of harm to the applicant’s family from the general security situation is not a real risk. The Authority referred to the applicant’s claim that Lebanon is unsafe for his family and that they would have a better future in Australia and found that that did not establish a real risk of significant harm to the applicant because he would be returning to Lebanon with his wife and children.
It was in those circumstances the Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Lebanon from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision of the review.
These proceedings were commenced on 10 September 2018. On 4 October 2018, a Registrar made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed he understood the nature of the hearing as explained by the Court.
From the bar table, the applicant explained his background in a candid and frank manner in relation to his coming to Australia and the tragic loss of his sister in respect of which he has named one of his daughters in memory of his sister. The applicant contended that it would be unfair to him and his family to return them to Lebanon.
This Court does not have power to make fresh findings of fact. This Court can only consider whether the Authority complied with its statutory obligations in the conduct of the review. This Court does not have power to decide the matter on compassionate or discretionary grounds.
The applicant’s assertion that he would face a real danger on return to Lebanon is contrary to the findings that were made by the Authority, and the Authority identified country information in support of those findings. Those findings were open on the material before the Authority as summarised above and cannot be said to be illogical, irrational or unreasonable. Nothing said by the applicant from the bar table identified any jurisdictional error.
The grounds
The grounds in the application are as follows:
1. Contrary to the comment made by the Delegate there is substantial grounds that I will suffer significant harm with my family should I return to Lebanon.
2. The Delegate misunderstood my well founded fear of harm should I be compelled to return to Lebanon.
This Court has no power to review the decision of the delegate. However, insofar as ground 1 takes issue with the adverse findings by the Authority in relation to complementary protection, those findings, as summarised above, were open to the Authority for the reasons given by the Authority and were dispositive of the applicant’s claims under complementary protection. The Authority made dispositive findings in respect of the applicant’s claims under the Refugee Convention that were logical and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out as alleged by ground 1.
In relation to ground 2, it is apparent that the Authority took into account the consequences of the applicant’s family travelling with him back to Lebanon. No misunderstanding by the Authority of the evidence has been identified. On the face of the Authority’s reasons, the Authority correctly identified the relevant test under the Refugees Convention and made adverse findings that were open to the Authority, as summarised above. Those adverse findings cannot be said to be illogical, irrational or unreasonable. No jurisdictional error is made out by ground 2.
As the application fails to make out any jurisdictional error, the application will be dismissed.
The Court does however, regard this as an appropriate matter in the exceptional circumstances of the applicant, to make the observation that this is a case worthy of consideration of ministerial intervention.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 21 February 2019
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