FBF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 189

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 189

File number(s):

SYG 3332 of 2019

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

12 February 2021

Catchwords:

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise visa – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss 5H, 5J, 36(2)(aa), 476

Federal Circuit Court Rules 2001 (Cth), Sch 1, Pt 3

Number of paragraphs:

20

Date of hearing:

3 February 2021

Place:

Sydney

The Applicant:

Appeared in person, by telephone, assisted by an interpreter

Solicitor for the First Respondent:

Ms J Xiao of Clayton Utz, by telephone

ORDERS

SYG 3332 of 2019

BETWEEN:

FBF19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	12 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $7,467.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).

   CLAIMS FOR PROTECTION

2. The applicant stated his claims for protection in a statement that formed part of his application for a SHEV.[1] In that statement the applicant claimed as follows:

   [1] CB62-67

   (a)The applicant is a national of Sri Lanka, a Tamil, and a Hindu. He was born in a village in Trincomalee.

   (b)For as long as he can remember the army had been in control of the applicant’s home town. As a child there was frequent conflict in his village between the army and the Liberation Tigers of Tamil Eelam (LTTE).

   (c)The applicant began working as a fisherman when he was 13, initially with his father, and later with anyone who wanted to come out fishing with the applicant. The applicant required a navy pass to go out fishing. The LTTE caused the applicant trouble when he began working as a fisherman.

   (d)When the applicant was 15 or 16, members of the Sri Lankan Navy (SLN) captured, detained, and beat the applicant and his father. This occurred when the applicant and his father were returning from fishing. The SLN asked questions about whether the applicant was part of the LTTE and a fire that had occurred near the applicant’s home. The applicant found out from his mother that while the applicant was out fishing a shop caught fire because a fight had broken out between the LTTE and the Sri Lankan Army (SLA). Two other people who had gone fishing were also captured and taken to jail after they returned from fishing.

   (e)In 2005 the SLA arrested the applicant’s father and he was jailed for 2 years. The applicant’s father heard a second fisherman being beaten and believes he was beaten to death. The applicant’s father was tortured terribly.

   (f)The police arrested the applicant while his father was in jail. The applicant was detained and tortured for around 6 to 7 days. The police released the applicant because, so the police told the applicant, the applicant’s wife told the Red Cross about the applicant’s detainment. The police told the applicant they would “call on [the applicant] again”. On his release, the applicant went into hiding, and the SLA tortured the applicant’s father to try to find out where the applicant was hiding.

   (g)The applicant remained in hiding until 2006 when he decided to give himself up. He did so after he contacted the Red Cross. The applicant was required to sign in with the police once a week. About four months after he came out of hiding the applicant was captured by the SLN. The applicant could not understand why he was being taken away, but he suspected it was because the SLN thought the applicant was with the LTTE. The SLA and SLN beat the applicant and others for about 5 hours. The Red Cross came to their rescue. The applicant was taken to court and he arranged bail at 50,000 rupees. The applicant’s name was placed on a list of people associated with the LTTE.

   (h)The applicant fled with his wife and daughter to India three days after he was released. The applicant, his wife, and daughter stayed in a refugee camp until around 2008 when the applicant and his wife returned to Sri Lanka. While the applicant was in India, his father was released from jail, but then sent to a detention centre.

   (i)The applicant’s problems started again about three months after he returned to Sri Lanka. These occurred when the applicant tried to go fishing. The SLN would capture and beat the applicant because, at night, he would accidentally drift into the wrong area. The applicant was beaten approximately once every few months until the applicant fled Sri Lanka in 2012.

   (j)The applicant’s mother and brother also experienced harassment. The SLA thought the applicant’s brother was with the LTTE because he was found in a LTTE controlled area. The applicant’s mother was beaten when she was leaving the LTTE area.

   (k)The applicant’s sister’s husband has been missing since the civil war ended.

   (l)The applicant has spoken to his family and they told him: it is not any better in Sri Lanka than it was before the applicant left; young children are being killed and their bodies are being dumped in rivers; and the authorities frequently ask the applicant’s family where the applicant is.

   (m)The applicant fears that if he returns to Sri Lanka he will be subjected to detainment, torture, and death at the hands of the authorities, including the SLA, SLN, and “the CID” (that is, the Criminal Investigation Department).

   BEFORE THE DELEGATE

3. At his interview before the delegate (SHEV interview) the applicant claimed: in 2005 the applicant’s father was arrested and charged with planting a bomb on behalf of the LTTE;[2] the applicant had supported the LTTE and he feared harm from the Sri Lankan authorities because of his involvement with the LTTE; the authorities had targeted the applicant because of LTTE activities, these consisting in his transporting goods, oil, and people for the LTTE;[3] the applicant’s sister and younger brother were both involved in the LTTE;[4] and the applicant claimed his sister was in the LTTE for 4 years after she joined when she was 16 or 17.[5]

   [2] CB94

   [3] CB95

   [4] CB97

   [5] CB97

   AUTHORITY’S DECISION

4. The Authority accepted or found: the applicant is a Sri Lankan and a Tamil;[6] the applicant is illiterate;[7] the applicant grew up in a government controlled area, began to work as a fisherman from a young age, and the applicant needed a pass to operate as a fisherman;[8] the applicant was aware of accounts of Tamils, including local fishermen, coming to harm in Sri Lanka;[9] the applicant travelled to India illegally, resided there as a refugee, and was provided financial assistance by the “International Organization for Migration”;[10] the applicant’s family were living in LTTE-controlled territory at the end of the war, they were placed in a camp for a period after the war and, to that extent, the applicant’s family were displaced due to the civil war and were detained along with the many thousands of other internally displaced people;[11] the applicant’s family have been released from detention and have been able to return to live openly in the community;[12] the applicant’s mother sustained injuries from mistreatment at “this time” which contributed to her death in 2018; and the applicant’s brother-in-law went missing in 2009, noting that many thousands of people were killed and not identified at the end of the war.[13]

   [6] CB118, [6]

   [7] CB118, [7]

   [8] CB118, [8]

   [9] CB119, [9]

   [10] CB119, [10]

   [11] CB122, [22]

   [12] CB122, [22]

   [13] CB122, [22]

5. The Authority, however, did not accept the applicant’s sister was an LTTE member or associated with the LTTE;[14] or that the applicant’s father was suspected of being involved in any incident and arrested, charged, and imprisoned;[15] or that the applicant’s brother joined the LTTE, or was associated with the LTTE, or that he went missing at the end of the civil war;[16] or that the applicant provided practical support to the LTTE;[17] or that the applicant was of interest to the authorities and had been in hiding for a period around 2005-2006, and that he had come out of hiding and with the assistance of the Red Cross approached the police and was then made to report regularly to the police;[18] or that the applicant was captured and beaten by the SLN for fishing in the wrong areas.[19] The Authority did not accept these claims because the applicant had not made them at his arrival interview or in his application for a SHEV, but had first made them in the SHEV interview; or because he had given varying accounts of the same incident; or because the Authority regarded aspects of the applicant’s claims to be implausible.

   [14] CB121, [19]

   [15] CB121, [20]

   [16] CB122, [21]

   [17] CB123, [24]

   [18] CB124, [27]

   [19] CB124, [29]

6. Given these findings, the Authority assessed the applicant’s claims on the footing that the applicant was a Tamil male, and he had left Sri Lanka illegally with the consequence that, on his return to Sri Lanka, the applicant will be charged under the Immigration and Emigration Act, detained on remand for some days pending bail, and fined. The Authority was not satisfied that because of his ethnicity or his returning to Sri Lanka as a person who had illegally departed Sri Lanka, the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act and for that reason is a “refugee” within the meaning of s 5H of the Act; and the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm, and thus satisfy s 36(2)(aa) of the Act.

   COURSE OF HEARING

7. The applicant, who is not legally represented, appeared by telephone with the assistance of an interpreter. As is my practice I described to the applicant the procedural background to the listing of the matter before me for hearing; I explained the purpose of the hearing, namely, to hear submissions from him in support of his application for orders that the Authority’s decision be set aside, and the procedure that would be followed. I indicated to the applicant that in addition to any submissions he wanted to make, and subject to any objection from him, I proposed to direct the applicant’s attention to the grounds contained in the application and ask whether he wanted to say anything in relation to them. I then identified the evidence that was before me and invited the applicant to make submissions by asking him why he believed the Authority’s decision should be set aside. The applicant made submissions without reference to the grounds stated in the application. I then read each of the grounds stated in the application and, after I read each ground, I asked the applicant whether he had anything he wanted to say about or in relation to the ground I read out.

8. In these reasons, I will first consider each of the grounds as stated in the application, and, in relation to each ground, record what the applicant said in relation to that ground. I will then set out the other submissions the applicant made.

   GROUNDS OF APPLICATION

9. The application contains the following grounds of application (errors in original):

   1.The IAA made serious error at this case.

   2.I would need hear that case in federal circuit court.

   3.The Department of home affairs identified the wrong issue.

   4.The IAA disregarded relevant materiel.

   5.The IAA applied an incorrect interpretation.

10. As stated ground 1 does not disclose any jurisdictional error because it does not identify the error the ground claims the Authority made.

11. The applicant told me he had been living in Australia for 9 years, and he asked what the reason was for that. The applicant also said he was not educated, and it would be enough if he is released. These are not statements that engage with the Authority’s reasons for affirming the delegate’s decision. The Authority affirmed the delegate’s decision largely because, for the reasons it gave, it did not accept the applicant’s evidence of what the applicant claimed had occurred to him in Sri Lanka. I am not satisfied the Authority made any error in not accepting the applicant’s evidence.

12. Ground 2 expresses the need for the applicant’s case to be heard in this Court; it therefore does not disclose any ground. In relation to this part of the application, however, the applicant said he has been living a good life and to date he has not made any mistake. These are not matters that engage with the Authority’s decision and therefore disclose no jurisdictional error by the Authority.

13. Ground 3 relates to the delegate; but what the delegate did or failed to do is not relevant to whether the Authority made a jurisdictional error. In relation to this ground the applicant said he had not committed any mistake, and he will not make a mistake in the future. These are not matters that engage with the Authority’s decision and therefore disclose no jurisdictional error by the Authority.

14. By itself ground 4 discloses no jurisdictional error because it does not identify the material it is said the Authority disregarded. The applicant submitted to me he was badly affected by the civil war, and he left Sri Lanka to protect his life; he had lost his mother as a result of what occurred in the civil war; he saw with his own eyes people being buried alive; and he travelled by boat to Australia putting his life at risk to protect his life. Ms Xiao, who appeared for the Minister, submitted the applicant’s statements could be taken to be a submission to the effect that the Authority did not consider the applicant’s claims; and she submitted the Authority clearly had considered the applicant’s claims.

15. In my opinion, the applicant did not intend to refer to the Authority’s reasons; the applicant’s statements are an appeal to the merits of his claims for protection. As I explained to the applicant, this Court has limited power in relation to a decision of the Authority which an applicant seeks to set aside; this Court’s power is limited to determining whether the Authority has acted according to law when reviewing the applicant’s case; and that the Court does not have power to grant the applicant refugee status.

16. In any event, assuming the applicant intends to submit the Authority did not consider or properly consider his claims for protection, I would not accept that submission. The Authority identified the applicant’s claims, considered them, and decided it would not accept essential elements of the applicant’s claims. The Authority gave reasons for not accepting those claims, and its reasons are intelligible and reasonable.

17. Ground 5, as stated, also does not disclose any jurisdictional error because it does not identify the interpretation it is claimed the Authority made and why that interpretation is wrong. In relation to this ground the applicant said he is not educated and he does not know what to say.

18. In addition to the submissions and statements the applicant made in relation to each of the grounds contained in the application, the applicant made statements that did not refer to those grounds. The applicant said his brother who joined the LTTE is no more; the applicant lost his sister as well; and being a driver he helped the LTTE and the police came looking for him. These statements appeal to the merits of the applicant’s claim for protection; they do not disclose any jurisdictional error by the Authority.

    DISPOSITION

19. The applicant has not shown the Authority made any jurisdictional error. I therefore propose to order that the application be dismissed.

20. The Minister applies for an order for costs, and that those costs be set in the amount of $7,467, being the amount provided for under Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). The applicant submitted if he is released from detention he would be pleased to pay any amount. I am satisfied that costs should follow the event, and $7,467 is fair compensation for the costs the Minister may be taken to have incurred in the proceeding. I therefore propose to also order that the applicant pay the Minister’s costs set in the amount of $7,467.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       12 February 2021