FAW17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1191

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FAW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1191

File number:

MLG 2475 of 2021

Judgment of:

JUDGE FORBES

Date of judgment:

15 November 2024

Catchwords:

MIGRATION – protection – judicial review of decision of Immigration Assessment Authority refusing grant of Safe Haven Enterprise Visa – whether Authority unreasonably rejected applicant’s claim of statelessness – whether Authority properly concluded that applicant was a citizen of Sri Lanka – whether Authority failed to take into account all relevant information – whether applicant would face a real risk of persecution or harm in Sri Lanka – no error revealed

Legislation:

Migration Act 1958 (Cth) s 5J, 36

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074

DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91

Htun v MIMA [2001] FCA 1802; (2001) 233 FCR 136

Minister for Immigration and Citizenship v Li [2013] HCA 18

Division:

Division 2 General Federal Law

Number of paragraphs:

45

Date of hearing:

23 October 2024

Place:

Melbourne

Applicant:

In person

Solicitor for the Respondents:

Mr McDonald; Clayton Utz

ORDERS

MLG 2475 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAW17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	15 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The First Respondent’s name be changed to “Minister for Immigration and Multicultural Affairs”.

2.The Applicant’s application for review filed 17 November 2017 be dismissed.

3.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE FORBES

INTRODUCTION

1. In this matter the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the Authority) dated 26 October 2017. The Authority affirmed the decision of a delegate to the Minister not to grant the applicant a Safe Haven Enterprise Visa (the visa).

2. The Authority found that the applicant is a Sri Lankan national and that Sri Lanka was his receiving country for the purpose of assessment against the refugee and complementary protection criteria in s 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth). The Authority found that the applicant would not face persecution or a real risk of harm if he was returned to Sri Lanka.

3. The application for review raises a number of broad grounds, asserting that the Authority acted unreasonably, made its decision in the absence of evidence and failed to take into account relevant considerations or relevant information. Specifically, the applicant claims that he is stateless and that the Authority could not have confidently concluded that he was a citizen of Sri Lanka.

4. For the reasons set out below I have determined that the Authority’s decision was not affected by jurisdictional error.

   BACKGROUND

5. The applicant claims to be a Sri Lankan national of Tamil ethnicity who, as a 7 or 8 year old child, moved to India with his parents. Since leaving Sri Lanka to flee civil war in around 1990, the applicant habitually resided in India in refugee camps.

6. The applicant arrived in Australia in April 2013 by boat from Indonesia. The applicant’s wife and two children remain in India. On arrival the applicant did not have any travel documents. At his entry interview the applicant confirmed that he was a citizen of Sri Lanka, although he also claimed not to have any status or citizenship. He said he feared returning to Sri Lanka because there was lots of fighting and it was not safe.

7. On 9 May 2016 the applicant was invited by the Department to apply for a Temporary Protection visa or a Safe Haven Enterprise visa (SHEV).

8. On 8 July 2016 the applicant applied for the SHEV with the assistance of a registered migration agent. In his application the applicant stated that he had been born in Sri Lanka and was a citizen at birth but claimed to be stateless and identified his current citizenship as “NOT KNOWN”. The applicant claimed that he had lived in a Sri Lankan refugee camp in India with his family since fleeing the civil war. As part of the application the applicant submitted a copy of a Sri Lankan Refugee Identity Card issued by the Government of Tamil Nadu, India.

9. The applicant stated that he and his family had no relatives in Sri Lanka and knew nothing of the country. He claimed that his parents told him he would be killed if he went to Sri Lanka and that he was scared of life there. He stated that he did not know where he could live in Sri Lanka.

10. On 2 August 2016 the applicant made a statutory declaration that he did not possess a passport or any ID documents to prove his Sri Lankan citizenship status, nor did he possess a birth certificate.

11. The applicant’s representative also provided the Department with a Marriage Certificate (and translation), a Ration Card (and translation) and a Refugee Certificate.

12. The applicant attended an interview with the Department on 8 February 2017.

13. On 10 August 2017 a delegate of the Minister refused to grant the applicant a SHEV and a few days later, on 15 August 2017, the application was referred to the Authority for review.

    Authority’s decision

14. On 26 October 2017 the Authority affirmed the decision of the delegate not to grant the applicant’s visa.

15. The Authority summarised the applicant’s claims as follows:

    ·He is a Tamil Hindu, born in 1981 in the Northern District of Sri Lanka. He and his family departed Sri Lanka in late 1989 or early 1990 at the direction of his parents. Since that time, he, and his family have resided in a refugee camp in Erode District, India. He is married with two children.

    ·He is unaware of the status of his citizenship and believes himself to be stateless.

    ·Prior to the family departing Sri Lanka, his father was arrested on multiple occasions and tortured by the Sri Lankan Army (SLA) due to imputed links to the LTTE. The threats and violence against his father were the principal reason the family left Sri Lanka.

    ·His aunt (Mother’s sister) was also imputed to be a member of the LTTE by the Sri Lankan Government, and as a direct consequence she, and her entire family, were murdered by the SLA in 2009.

    ·If he was returned to Sri Lanka he would face discrimination, as he is a Tamil who is imputed to have family links to the LTTE and because he departed Sri Lanka illegally. Furthermore, he fears that given the likelihood of Government records asserting his father’s imputed involvement with the LTTE he would, by virtue of this relationship, be more likely to be arrested, tortured and killed by the Sri Lankan authorities.

    ·Upon arrival at a Sri Lankan entry port, he would be identified, arrested tortured and killed by the Government since returning Tamils who have no identity documents or who are failed asylum seekers are more likely to receive this treatment.

16. At [7]-[9] of its reasons, the Authority considered the applicant’s identity and citizenship. The Authority accepted that the applicant is a Tamil Hindu born in Sri Lanka and that he had habitually resided in India prior to arriving in Australia. The Authority also accepted that the applicant departed Sri Lanka as a child and spent most of his life in refugee camps. The Authority further accepted that the applicant is married and has two children. At [9] the Authority found:

    “Having regard to the evidence before me, including statements made by the applicant during interview, his admitted birth in Sri Lanka and residence there for a period, his descent from parents who he acknowledges were both Sri Lankan citizens, I am not satisfied the applicant is stateless. Like the delegate, I am satisfied he is a Sri Lankan national, and Sri Lanka is his receiving country for the purpose of this assessment. I further conclude that his previous claims to statelessness were likely made to enhance his claims for protection.”

17. The Authority also noted that the applicant indicated a willingness to obtain temporary travel documents from Sri Lanka, or cooperate in obtaining identity documents.

18. At [12]-[21] of its reasons, the Authority considered the applicant’s claims relating to his father, Tamil ethnicity and LTTE association. The Authority considered the applicant’s claims regarding his father’s arrest and torture to be plausible. However, it was not satisfied that the applicant’s fears of persecution based on those events or any perceived association with the LTTE were well-founded.

19. The Authority accepted that the applicant is a Tamil male from the Northern Province, and that his father was detained and mistreated by Sri Lankan authorities in the past. However, the Authority did not accept that the Sri Lankan authorities would maintain an interest in his father and the applicant would not be targeted upon return. In summary, “having regard to the applicant’s ethnicity, his origins in the North, his father’s experiences, and his extended absence from Sri Lanka” the Authority was not satisfied that the applicant would face a real risk of harm in Sri Lanka.

20. The Authority was unconvinced about the applicant’s claim relating to the murder of his aunt and her family. The Authority pointed to a lack of evidence and did not accept that it occurred.

21. At [22]-[24] of its reasons, the Authority considered the applicant’s status as a returning asylum seeker and his illegal departure from Sri Lanka. The Authority did not consider that any detention or questioning of the applicant upon his return would constitute serious harm under s 5J of the Act.

22. In conclusion, the Authority found that the applicant did not meet the refugee criteria in s 36(2)(a), nor did he face a risk of significant harm for any reasons, therefore he did not meet s 36(2)(aa).

    JUDICIAL REVIEW

23. On 17 November 2017 the applicant filed an application for judicial review of the Authority’s decision in this Court. The applicant’s “grounds” of review are vague and unparticularised. For ease of reference, the “grounds” have been numbered as follows:

    (1)The IAA has committed jurisdictional error in my case. The IAA’s reasoning was made in the absence of evidence; and a failure to take into account a relevant consideration.

    (2)I humbly submit that the IAA acted unreasonably and it has failed to take into account relevant information. The IAA has declined its jurisdiction in my IAA review process.

    (3)I have told Immigration and/or the IAA that I believe myself to be stateless.

    (4)The IAA cannot conclude confidently that I am a citizen of Sri Lanka as I have no formal documentary evidence of my current citizenship; my exact status in Sri Lanka is unclear; and ambiguous. These facts are relevant to s 36(2)(a) and the IAA has failed to take this into account and committed an error of law.

    (5)I humbly seek that you quash the IAA’s decision as the IAA failed to exercise its jurisdiction and I seek a final order of a new review of the IAA to be held as I have a good merits review case with new evidence to convince the new IAA that I deserve Australia’s protection.

    (6)I lodge my court application myself.

    (7)I have no lawyer at this stage to represent me in this court.

    (8)I will provide more details in respect of this ground and particulars and additional grounds/particulars when I make a submission to the court after I have obtained a barrister’s opinion on my IAA’s decision.

24. Prior to final hearing, the Minister filed an outline of submissions and a Court Book. Save for the application, the applicant did not file anything, despite being afforded the opportunity to do so.

25. On 23 October 2024 the parties came before me for a final hearing. The applicant appeared self-represented with the assistance of a Tamil interpreter and Mr McDonald, a solicitor, appeared for the Minister.

26. At the commencement of the hearing I confirmed that the applicant and the Tamil interpreter understood each other. I explained the course the hearing would follow, including the order of oral submissions and the applicant’s right of reply. I informed the applicant that the Court could not reconsider the merits of his application or the Authority’s decision or grant the applicant the visa that he seeks. I explained that the role of the Court was restricted to determining whether the Authority had made an error in arriving in its decision, by exceeding or misunderstanding its statutory authority. I was satisfied that the applicant understood the explanation and I invited him to ask questions or seek further clarification if there was anything about the process he did not understand.

27. The applicant confirmed that he had received a copy of the Court Book and the Minister’s written submissions.

    Applicant’s submissions

28. The applicant commenced oral submissions by reiterating his claims. He said that he fled from Sri Lanka to India and lived there for 23 years. He said he does not have citizenship in Sri Lanka or India, and because of this he is unable to see his wife and children who currently reside in India. The applicant mentioned that in 2018 he underwent a major operation, which impacted his mental health and impacted his ability to recall the finer details of his past. He offered to show the Court a medical certificate in relation to the operation.

29. I reminded the applicant that the Court’s task is limited to assessing whether or not the Authority made an error in its decision to refuse the visa, and whether that error was jurisdictional. The applicant stated that since the Authority made its decision, he had attempted to obtain a birth certificate from Sri Lanka but had been unsuccessful. The applicant said for that reason, he is unable to prove his Sri Lankan citizenship.

30. I sought to guide the applicant to make submissions on his grounds for review, for example I asked the applicant to speak to which claims or information he felt that the Authority failed to consider, or what exactly the Authority did wrong. The applicant said that he could not tell the Court and he did not know what to say.

    Minister’s submissions

31. The Minister relied on his written submissions and summarised them orally, largely for the benefit of the applicant. The Minister’s submissions were interpreted into Tamil simultaneously to the applicant.

32. The first ground relates to the Authority’s failure to take into account relevant considerations. Mr McDonald guided the Court through the Authority’s pathway of reasoning, submitting that it is evident that the Authority thoroughly considered all of the applicant’s claims, and the integers of those claims[1]. The Minister noted that the applicant had failed to point to any relevant materials that the Authority failed to consider. The Minister submitted that this ground should be dismissed.

    [1] See Htun v MIMA [2001] FCA 1802; (2001) 233 FCR 136 at [42]; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]

33. The second ground asserts that the Authority acted unreasonably and failed to take into account relevant information, and that the Authority “declined its jurisdiction” in the review process. Regarding unreasonableness, the Minister submits that the Authority’s reasons provided an “evident and intelligible” justification of its decision[2]. For example, the Minister took the Court to the Authority’s reasons at [20]-[21], where it considered the applicant’s claims relating to his father. The Authority noted that the father’s experiences occurred 27 years previously, that the applicant departed Sri Lanka as a child, that the applicant has not participated in any anti-government movements, that he himself was not a member of the LTTE and would not be considered as one by the Sri Lankan authorities. Consequently, the Authority held that the applicant would not be targeted in Sri Lanka on account of his father’s activities.

    [2] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76]

34. Grounds three and four relate to the applicant’s assertion that he is stateless. The applicant asserts that he told the Department and/or the Authority that he believes himself to be stateless, and that given the lack of formal documentation the Authority could not have confidently concluded that he is a citizen of Sri Lanka.

35. The Minister submitted that the Authority considered in detail the applicant’s citizenship status at [7]-[11] of its reasons. As outlined above, the Authority considered the applicant’s written and oral evidence in relation to the claim of statelessness but was satisfied that the applicant is a Sri Lankan national. The Minister submits that there was a proper consideration of any claims of statelessness, and the Authority’s conclusion was open to it for the reasons it gave and was not unreasonable.

36. The Minister submits that grounds five, six, seven and eight do not assert jurisdictional error.

    Applicant’s reply

37. Having listened to the Minister’s submissions, I asked the applicant if there was anything he wished to add in response. He restated that he cannot go back to Sri Lanka, all his family are in India, and that he feels mental anguish and helplessness about his situation. The applicant otherwise said he did not know what to say.

    CONSIDERATION

38. Despite the Court inviting the applicant several times during the course of the hearing to provide further submissions on his grounds of review, the applicant was unable to point to any part of the Authority’s reasons which might constitute jurisdictional error.

39. Whilst I sympathise with the applicant’s anxieties about the prospect of returning to Sri Lanka, a country with which the applicant has a limited connection aside from his nationality, the applicant’s submissions during the hearing were either not relevant to the grounds or constituted a request for impermissible merits review. Some of the applicant’s oral submissions, regarding his medical procedure and attempts to secure a Sri Lankan birth certificate, constitute new information which I cannot take into account as part of a judicial review, and do not have any impact on the Authority’s decision.

40. The Authority’s decision was made according to the fast track review process in Part 7AA of the Act. Here I would reiterate that the fast track review is a mechanism of limited review ordinarily conducted on the papers and the Authority is generally not obliged to accept or request additional information[3]. Further, demonstrating legal unreasonableness in the context of Part 7AA carries a “demanding standard”[4].

    [3] CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074

    [4] DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [110] per Beach, O’Callaghan and Anastassiou JJ

41. In this context, I agree with the Minister that none of the applicant’s “grounds” have been made out. The Authority’s reasons clearly engaged with each of the applicant’s claims, provide considered reasons taking into account the information before it including country information, and state reasonable conclusions.

42. I have not been persuaded that the Authority’s reasons were affected by jurisdictional error.

    DISPOSITION

1. Having considered the written and oral submissions of the parties, and for the reasons set out above, I have concluded that the decision of the Authority made on 27 November 2017 is not affected by jurisdictional error.

2. Accordingly, the application will be dismissed.

3. I will hear the parties on costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

Associate:

Dated:       15 November 2024