FDN17 v Minister for Home Affairs

[2019] FCCA 623

FEDERAL CIRCUIT COURT OF AUSTRALIA

FDN17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 623

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the adverse findings by the Authority lack an evident and intelligible justification – whether the adverse findings by the Authority were legally unreasonable – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 476

Applicant: FDN17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3638 of 2017

Judgment of: Judge Street

Hearing date: 13 March 2019

Date of Last Submission: 13 March 2019

Delivered at: Sydney

Delivered on: 13 March 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr D Baddeley
Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 13 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3638 of 2017

FDN17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 6 November 2017, affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against country. The applicant was found to be a Tamil of the Hindu faith from the Eastern Province of Sri Lanka and arrived in Australia on 21 October 2012. The applicant lodged the application for a Safe Haven Enterprise visa on 17 August 2016.

3. The applicant claimed to fear persecution from the Sri Lankan authorities, the Sri Lankan Police and the Criminal Investigation Department (“CID”), including that he will be arrested, interrogated, detained, subjected to extortion, physical assault and torture. The applicant fears persecution based on imputed political opinion as he had received training from the Liberation Tigers of Tamil Eelam (“LTTE”), some of his family members were actively involved in the LTTE, including his brother who served one year and eight months in prison, and by reason of the applicant being from a former LTTE-controlled area and having been previously questioned about his LTTE links. The applicant also claimed he was subjected to extortion and fears harm due to his Tamil ethnicity and by reason of being a failed asylum seeker.

4. On 16 February 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 21 February 2017, the Authority wrote to the applicant informing the applicant that the application for the 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.

6. The applicant did put on new information and submissions that are expressly referred to in the Authority’s reasons. In relation to the new information, the Authority considered the same taking into account on the face of the Authority’s reasons the whole of s 473DD of the Act in determining whether there were exceptional circumstances to justify considering new information. The Authority in its reasons identified the background to the visa application as well as having regard to the material given by the Secretary under s 473CB of the Act.

7. The Authority summarised the applicant’s claims. The Authority identified having serious concerns about the truthfulness of the applicant’s claims in relation to extortion and other adverse attention that he suffered from the CID between 2006 and 2012. The Authority referred to a change in the applicant’s evidence in relation to his work. The Authority did not consider it credible that when the applicant was first asked how he knew the men extorting him were not criminals posing as the CID, he failed to mention that the CID men had been pointed out to him by the police just before his release but instead he knew it because they showed him their IDs. The Authority did not consider it credible that the CID or police would question the applicant about details of LTTE vehicles and visits after 2007 once the area, and indeed the whole of the Eastern Province, was fully under Sri Lankan Army control.

8. The Authority did not consider it credible that the extortionists would have after some six years of demanding small, regular amounts of money up to July 2012, suddenly come the next month and demand 50,000 rupees. The Authority found the applicant’s evidence evolved at the Safe Haven Enterprise visa interview as the delegate identified concerns with some of the applicant’s earlier evidence.

9. Given the significant changes, inconsistencies and implausibilities in the applicant’s evidence about the extortion and the adverse interest of the CID from 2006 to 2012, the Authority found the applicant had fabricated his evidence in order to boost his claims for protection. The Authority did not accept the applicant’s claim that he was subject to regular extortion demands from the CID or that he was systematically questioned, harassed or monitored by the CID from after his release from detention in 2006 until he left Sri Lanka in October 2012. The Authority did not accept the applicant’s brother was approached on 30 August 2012 about the unpaid money and the CID threatened to shoot the applicant, that his mother was questioned, that the applicant went into hiding for two months from August 2012, or that the authorities visited the family’s home or enquired about the applicant’s whereabouts on several occasions between November and December 2012.

10. The Authority referred to a supporting letter provided by the applicant dated 28 February 2017 and identified reasons for placing no weight on that letter.

11. The Authority referred to the submissions in relation to the applicant’s responses at the Safe Haven Enterprise visa interview explaining the inconsistencies and the Authority was not satisfied on the evidence that the applicant was suffering from mental health disorder, illness or condition or that he requires any current or future treatment.

12. The Authority also took into account that submission in assessing the applicant’s evidence, the subject of the adverse finding by the Authority. The Authority expressly referred to the UNHCR guidelines and referred to other country information. The Authority did not consider the applicant to be at risk of harm for reason of any real or perceived links to the LTTE, or any imputed political opinion now, or in the reasonably foreseeable future, for a number of reasons.

13. In that regard, the Authority addressed first the content of the UNHCR guidelines and that being from a former LTTE-controlled area or being a Tamil does not give rise to a need for protection. Further, the Authority took into account that the applicant was never charged or imprisoned for any reason while he was in Sri Lanka. Further, the Authority took into account the finding that the applicant had no further adverse interactions with the Sri Lankan authorities after he was released from his three day detention around June 2006. Further, the Authority took into account that the applicant does not claim his brother and his uncle received any further adverse attention from the authorities after they were released following their imprisonment.

14. The Authority noted also that the applicant does not claim that his family members were ever questioned by the authorities about his brothers, his uncles, L’s, K’s, or his own suspected LTTE involvement. The Authority also took into account the applicant does not claim that he was ever questioned about or otherwise connected by the authorities with the two or three other Tamils who were taken into custody around June 2006. The Authority also took into account that the applicant was able to travel legally to India in 2010, 2011 and 2012 without encountering any problems from the authorities at the airport. Furthermore, the Authority took into account the findings that the authorities have not shown any interest in the applicant or made inquiries in relation to the applicant’s whereabouts since he left Sri Lanka in October 2012.

15. The Authority found the applicant does not have a profile that country information suggests he would be at risk of harm, now or in the reasonably foreseeable future, for any real perceived LTTE links including those based on his family’s links, for any imputed political views and/or as a Tamil male from the east.

16. It was in these circumstances the Authority was satisfied the applicant would not face a real chance of persecution due to any links to the LTTE, or for any imputed political opinion, or as being a Tamil male from the east, if returned to Sri Lanka, now or in the reasonably foreseeable future.

17. The Authority referred to the applicant’s claims concerning extortion and noted that the Authority had rejected the applicant’s claim that he was paying extortion money to the CID. The Authority also took into account the applicant does not claim that any other members of his family who worked as jewellers, including his brother who was in the LTTE, were or are subject to extortion from the authorities or anyone else.

18. The Authority was not satisfied the applicant would be unable to return to his trade as a jeweller if he wishes to do so if he returns to Sri Lanka now or the reasonably foreseeable future. The Authority was satisfied that the chance that the applicant experiencing harm as a former jeweller or if he becomes a jeweller, if returned to Sri Lanka, now or the reasonably foreseeable future is remote.

19. The Authority accepted that the applicant would be returning to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally. Taking into account country information and the findings made by the Authority, the Authority did not accept the applicant would be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival at Sri Lanka.

20. The Authority was satisfied that, even if the applicant had no money himself at the relevant time, his family would be available to provide financial support for any bail, including acting as bail guarantor if one was required, or in relation to any fine imposed on the applicant.

21. The Authority found based on the country information that the applicant may be detained and questioned at the airport for up to 24 hours, faces a fine for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) and, depending on the availability of a Magistrate at the time he is charged and/or if required to provide a guarantee for any bail surety, may face a short period of being held in detention.

22. The Authority did not consider a few days in detention would constitute the necessary level of threat to the applicant’s life or liberty or to be significant physical harassment or ill-treatment under s 5J(5) of the Act or otherwise amount to serious harm of the applicant. 

23. The Authority did not consider the brief period of detention, the likely questioning of the applicant, any surety imposed or imposition of a fine under the Immigrants and Emigrants Act 1949 (Sri Lanka) to constitute a threat to the applicant’s life or liberty, or to be significant physical harassment or ill-treatment under s 5J(5) or the Act or otherwise amount to serious harm.

24. The Authority referred to the Immigrants and Emigrants Act 1949 (Sri Lanka) as being a law of general application and the investigation, prosecution and punishment thereunder does not amount to persecution for the purposes of s 5H(1) and s 5J(1) of the Act.

25. The Authority was not satisfied the applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future. The Authority was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future and found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act.

26. The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

27. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 24 November 2017. On 21 December 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant submitted that there were still problems in his country and that the Authority had not accepted the problems that the people were facing. The applicant submissions from the bar table were, in substance, an invitation to this Court to engage in merits review. This Court does not have power to make fresh findings of fact in respect of the merits, or to review the merits.

4. The Authority’s reasons, as summarised above, make dispositive findings in respect of the applicant’s claims that on their face are logical, rational and reasonable and were open to the Authority. Nothing said by the applicant from the bar table identified any jurisdictional error.

The ground

1. The ground in the application is as follows:

   I humbly submit that the IAA acted unreasonably and it has failed to take into account relevant information.

   The IAA failed to take into account the following facts which are significant/failed to give weight to the relevant factors of great importance.

   Particulars:

   I fit into the profile stated in the UNHCR guideline which was used to refuse my protection visa application by the IAA. The IAA says that it does not consider I am at risk of harm as per the UNHCR guideline which has been wrongly applied because I had received training from the LTTE, some of my family members were actively involved in the L TTE, including my brother who was in the LTTE and served one year and eight months in prison. The IAA did not say as to why I do not fit into the UNHCR guideline.

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

   I lodge my court application myself.

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

   I will provide more details in respect of this ground and particulars and additional grounds/particulars when I make a submission to the court when required.

2. The general assertion that the Authority acted unreasonably on its face reflects a disagreement with the adverse findings by the Authority. For the reasons already given as summarised above, the Authority’s adverse findings cannot be said to lack an evident and intelligible justification. The Authority’s decision in these circumstances cannot be said to be legally unreasonable. There is no relevant information identified that the Authority has failed to take into account.

3. Insofar as the particulars refer to the UNHCR guidelines, as summarised above, it is apparent that the Authority took into account those guidelines and took into account the applicant’s claims concerning his family and provided logical and cogent reasons for the adverse finding in respect of the applicant’s claimed fear of harm by reason of being a person with imputed political profile or links to the LTTE. Insofar as it is asserted that the Authority did not take into account the applicant’s profile and the UNHCR guidelines, that is contrary to the reasoning of the Authority as summarised above.

4. The assertion that the applicant fell within the guidelines so as to be a person of imputed with an LTTE profile reflects a disagreement with the adverse findings by the Authority. Further, it is apparent that the Authority took into account the applicant’s history and detention as well as the applicant’s family members and provided logical reasons for the adverse findings as summarised above. No jurisdictional error is made out by the application.

5. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 April 2019