Fet18 v Minister for Home Affairs

[2019] FCCA 604

FEDERAL CIRCUIT COURT OF AUSTRALIA

FET18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 604

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the adverse findings by the Authority were irrational, illogical or unreasonable – whether the adverse findings were open to the Authority on the material before it – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: FET18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2816 of 2018

Judgment of: Judge Street

Hearing date: 12 March 2019

Date of Last Submission: 12 March 2019

Delivered at: Sydney

Delivered on: 12 March 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr J McGovern
Clayton Utz

ORDERS

1. The application in a case dated 11 February 2019 is dismissed.

2. The oral application for an adjournment is refused.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 12 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2816 of 2018

FET18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 10 September 2018, affirming a 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 a Tamil born in the Northern Province of Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival on 28 September 2012. The applicant claimed to fear harm from the Sri Lanka authorities, including the Sri Lankan army (“SLA”) and Criminal Investigation Department (“CID”), because they will suspect him of being associated with the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant claimed he departed Sri Lanka illegally and would return as a failed asylum seeker and that the authorities would detain and kill him because he is a Tamil. The applicant fears harm also as a result of the data breach and the Sri Lankan authorities finding out that he sought asylum in Australia.

3. On 24 January 2018, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 30 January 2018, the Authority wrote to the applicant explaining 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. The applicant did put on new information and submissions that were identified in the Authority’s reasons and considered the same in accordance with the requirements of s 473DD of the Act. The Authority in its reasons identified the background to the visa application had regard to the material given by the Secretary under s 473CB of the Act.  

5. The Authority found the applicant had been given an opportunity, having listened to both audio recordings of the two interviews, to present his case and did not accept that the applicant was adversely affected or not given an opportunity to present his full claims for protection.

6. The Authority’s reasons in relation to the new information, in respect of which the Authority found there were not exceptional circumstances justifying considering the same, reflect a consideration of the whole of the statutory provision and there is no basis to infer that the Authority adopted and unduly narrow or erroneous meaning of “exceptional circumstances”, or failed to have regard to the whole of the provision in determining whether there were exceptional circumstances to justify considering the new information.

7. The Authority summarised the applicant’s claims, as well as identifying the relevant law. The Authority referred to the applicant’s statement of claims in support of his Safe Haven Enterprise visa interview. The Authority referred to the applicant fearing for his life, as the result of the establishment of LTTE vigilante groups. The Authority found the applicant had given a plausible account of his active involvement with a vigilante group. The applicant said his involvement with that group was for six to eight months after he returned from Qatar. The Authority accepted the applicant participated in the group to protect the people and that he was harassed as claimed, but did not accept that that harassment was the reason the applicant went to Qatar.

8. The Authority referred to two occasions in which the applicant was detained and beaten in 2006, and the Authority was prepared to accept the two instances described in 2006, and that the kidnapping incident, alleged in 2005, occurred. The Authority referred to the applicant raising a new claim in respect of being detained in 2008 and did not accept the applicant’s explanation for not raising that issue at the arrival interview.

9. The Authority also referred to the applicant’s claims regarding his brother-in-law’s involvement with the LTTE as being vague and unconvincing and that the applicant provided no details about what the involvement with the LTTE was. The Authority accepted the applicant’s brother-in-law was killed during the civil conflict, but did not accept that he was an LTTE member or that he killed a People’s Liberation Organisation of Tamil Eelam (“PLOTE”) member. The Authority accepted the applicant organised his brother-in-law’s funeral, but did not accept the applicant or his family were of interest to the PLOTE in 2008.

10. The Authority referred to the applicant’s harassment as a result of being a Tamil, and considered the treatment described by the applicant resulted from the troubling but routine treatment of Tamils at that time, rather than from any specific security concerns regarding the applicant. The Authority did not accept the applicant paid bribes to facilitate his exit from the country, in relation to his departure to Malaysia, on his Sri Lankan passport. The Authority found that the applicant was able to depart Sri Lanka without problems from the airport because he was not a person of concern to the authorities.

11. The Authority was prepared to accept the applicant’s evidence that he and some of his family have been granted refugee status by the United Nations High Commissioner for Refugees (“UNHCR”) a number of years ago. The Authority, however, considered that this has no material bearing on the current decision, which must be made by assessing the criteria under the Act and taking into account the materials before the Authority. The Authority was not satisfied the applicant was of interest to the Sri Lankan authorities at the time he departed Sri Lanka, and did not accept that they would have had any reason to approach his wife searching for him, or that they did so.

12. The Authority referred to the risk of detention under the Prevention of Terrorism Act and did not accept the applicant had such a profile as to be at risk of detention under that Act. The Authority accepted the applicant has some scars on his arm, shoulder and head, but found the applicant did not refer to problems at the airport, when he departed Sri Lanka as a result of his scars. The Authority did not consider there is evidence to support the applicant’s fear that returning to Sri Lanka with scarring would lead to adverse attention from the Sri Lankan authorities.

13. The Authority referred to the data breach in 2014 and accepted it is possible that the information was accessed by the authorities, but that that would only have revealed that the applicant was seeking asylum in Australia. The Authority did not accept this gives rise to a real chance of harm. The Authority was not satisfied the applicant faced a real chance of harm on return to Sri Lanka as a result of the data breach.

14. The Authority referred to the applicant being a Tamil male and taking into account the applicant’s profile and was not satisfied he would be of interest to the Sri Lankan authorities and was not satisfied there is a real chance the applicant would be at risk of harm on return to Sri Lanka, for reasons of his profile and being a Tamil male. The Authority referred to the applicant consistently describing departing Sri Lanka legally and, accordingly, did not accept the applicant will be considered to have departed Sri Lanka illegally. The Authority did not accept there is a real chance the applicant would appear on a stop list. The Authority was not satisfied there is a real chance the applicant would be considered to have departed Sri Lanka illegally.

15. The Authority referred to the possibility that the applicant may be monitored on return to the Northern Province, but was not satisfied this treatment would amount to serious harm. The Authority was not satisfied the applicant has a well-founded fear of persecution.

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

17. The Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed 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 2 October 2018. The originating application was prepared by a lawyer on behalf of the applicant and filed in Sydney. On 29 October 2018, a Registrar of the Court made orders fixing the matter for hearing today in Sydney and made orders giving the applicant an opportunity to file an amended application, affidavit of evidence and submissions. No such documents were filed.

2. A notice of withdrawal of lawyer was filed on 24 January 2019, which would have preceded by a notice of intention to withdraw, served on the applicant. The applicant filed an affidavit and an application in a case seeking to have the matter transferred to Melbourne. Given that the proceedings were commenced in Sydney, the Court fixed that application for hearing today. The Court, in fact, also made orders permitted the applicant to appear from Melbourne via video link for the hearing today. The applicant appeared in person. As the applicant was present at the intended hearing, the Court was not satisfied that it was appropriate to transfer the matter to Melbourne in the interests and the administration of justice and, accordingly, dismissed the application in a case.

3. The applicant sought an adjournment on the basis that he had had his lawyer withdrawn and he wanted a lawyer. The applicant referred to having formerly had a lawyer who had withdrawn at the beginning of last month and that he had been unsuccessful, only very recently, in seeking legal aid. The applicant identified he did not have funds to obtain a lawyer. The adjournment application was opposed by the first respondent.

4. Given the history of these proceedings, having been commenced on 2 October 2018 and the procedure that would have been followed, in terms of notice of intention to withdraw from the lawyer that the applicant had acting, the Court is satisfied that the applicant has had a reasonable opportunity to obtain a lawyer if he was able to do so.  Nothing said by the applicant identified any basis upon which the Court could be satisfied there would be utility in granting an adjournment given that the applicant cannot afford a lawyer. The Court was not satisfied that an adjournment was warranted in the interest of the administration of justice. It is for these reasons that the adjournment application was refused.

5. 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 identified that he did not wish to return to Sri Lanka and was concerned as to the risk to his life if he did so. The applicant referred to his mother now being in Malaysia and alleged that she was now a refugee. It is apparent from the Authority’s reasons that the Authority accepted that members of the applicant’s family may have been treated as refugees. The Authority correctly, however, identified that the issue for the Authority was whether the applicant met the criteria under the Act on the evidence and submissions before the Authority.

6. The applicant also referred to being badly affected by the data breach. The Authority in its reasons expressly referred to and considered the issue of the data breach and accepted that the Sri Lankan authorities may possibly have become aware that he had sought asylum in Australia. The Authority however found that that was the only detail that would have been released under the data breach and was not satisfied, in those circumstances, that the applicant faces a real chance of any harm, on return to Sri Lanka, as a result of the data breach.

7. The applicant’s submissions from the bar table otherwise invited this Court to engage in merits review. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Authority committed jurisdictional error by making a finding that was irrational, illogical and unreasonable.

   Particulars

   a. At paragraph 16 of its decision, the Authority noted that the applicant claimed that he joined a vigilante group towards the end of 2004 and that he was harassed by the Sri Lankan Army (SLA) and the People's Liberation Organisation of Tamil Eelam (PLOTE) due to his involvement.

   b. The applicant claimed that he left Sri Lanka for Qatar as the harassment from the SLA and PLOTE caused him to fear for his life.

   c. Although the Authority accepted, at paragraph 25, that the applicant participated in the vigilante group and was harassed as a result, it was not satisfied that the applicant decided to go to Qatar because of the harassment.

   d. In its reasons the Authority refers to country information which reports that extra-judicial killings, disappearances and kidnappings for random occurred frequently in Sri Lanka.

   e. The Authority, not only, failed to cite any reasons for its finding but came to a finding that was inconsistent with the evidence before it.

   2. The Authority committed jurisdictional error by making a finding that was irrational, illogical and unreasonable.

   Particulars

   a. At paragraph 29, the Authority accepted that the applicant was harassed, detained and beaten on a number of occasions by Sri Lankan authorities from 2000 to 2008.

   b. Despite making the finding above, the Authority held that, given the applicant was never charged with an offence, the applicant's treatment did not arise from any specific security concerns regarding the applicant specifically.

   c. At paragraph 24, the Authority accepted that the applicant was detained, beaten and put on trial but was released because the army did not have sufficient evidence to tie him to the LTTE.

   d. The Authority also accepted, at paragraph 26, that the applicant had been kidnapped, detained and interrogated about his connections to the LTTE on one occasion in 2005 and on two occasions in 2006.

   e. In making the finding at paragraph 29, the Authority ought to have considered:

   i. The fact that the applicant, specifically, had been brought to court; and

   ii. That the applicant was continually targeted by the Army despite not being formally charged.

   f. It follows that the Authority's finding was irrational, illogical and unreasonable.

Ground 1

1. In relation to ground 1, this concerns the finding by the Authority as to why the applicant travelled to Qatar and referred to the acceptance by the Authority of the applicant joining a group. As summarised above, the Authority found applicant only joined that group for a short period of time. The ground refers to the applicant’s claim that he left Qatar as the harassment from the SLA and PLOTE caused him to fear for his life.

2. The Authority referred to the inconsistencies between the evidence given by the applicant in his written statements and his evidence given orally at the Safe Haven Enterprise visa interview. The Authority found the applicant claimed, during the Safe Haven Enterprise visa interview, that the alleged harassment by the SLA and PLOTE was as a result of his involvement in the vigilante group, making reference to the six to eight month period, which the applicant claimed he joined on return from Qatar.  The Authority did not accept that the harassment was the reason the applicant went to Qatar, based on the inconsistencies identified in the applicant’s evidence.

3. The Authority’s reasons are not to be read with a keen eye for error and must be read as a whole. It is apparent that the Authority found the inconsistencies in the applicant’s evidence was central to the rejection of the applicant’s claims. Given the timeline of events, the applicant’s evidence at the Safe Haven Enterprise visa interview did not support a claim that he flew to Qatar as a result of harassment by various parliamentary groups. The Authority considered and had a real and meaningful engagement with the evidence and submissions before it and was not satisfied as to the applicant’s claimed reason for travelling to Qatar. The adverse finding by the Authority in that regard cannot be said to be illogical, irrational or unreasonable. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the applicant’s ground refers to the Authority accepting the applicant’s incident in 2008, where he was harassed and the acceptance that the applicant was detained and beaten. The Authority accepted that the applicant had been kidnapped and took into account country information in relation to the discriminatory manner in which Tamils were dealt with at that period of time. It was logical and relevant to take into account that the applicant was never charged with an offence and that he was released after each detention.

2. The adverse findings by the Authority in paragraph 29 cannot be said to be illogical, irrational or unreasonable. There is no substance in the assertion the Authority did not consider the matters referred to and the adverse findings were open on the evidence before the Authority and for the cogent and considered reasons given by the Authority. The Authority, on material before the Court, gave real and meaningful consideration to the applicant’s claims and submissions and reached conclusions on the basis of relevant country information and the applicant’s own evidence that were open to the Authority. The adverse findings were not irrational, illogical or unreasonable. No jurisdictional error as alleged in ground 2 is made out.

Conclusion

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

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2019