FGI17 v Minister for Immigration

[2019] FCCA 632

FEDERAL CIRCUIT COURT OF AUSTRALIA

FGI17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 632

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether the adverse findings were open to the Authority on the material before the Authority – whether the Authority was required to consider claims that were not advanced – no jurisdictional error made out – amended application dismissed.

Legislation:

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

First Applicant: FGI17

Second Applicant: FGJ17

Third Applicant: FGK17

Fourth Applicant: FGL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3731 of 2017

Judgment of: Judge Street

Hearing date: 14 March 2019

Date of Last Submission: 14 March 2019

Delivered at: Sydney

Delivered on: 14 March 2019

REPRESENTATION

Counsel for the Applicant: Mr G Foster

Solicitors for the Applicant: Sentil Solicitor & Barrister

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. Grant leave to the applicants to file in Court the notice of appearance, amended application and submissions on behalf of the applicants and the Court directs that an electronic copy of the same be filed on or before close of business on 15 March 2019.

2. The Court reserves the opportunity to the first respondent to put on further written submissions if such an occasion arises.

3. The amended application is dismissed.

4. The first and second applicants pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 14 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3731 of 2017

FGI17

Applicant

FGJ17

Second Applicant

FGK17

Third Applicant by their litigation guardian FGI17

FGL17

Fourth Applicant by their litigation guardian FGI17

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 17 November 201,7 affirming decisions of the delegate not to grant the applicants' Safe Haven Enterprise visas.

2. The applicants were found to be citizens of Sri Lanka and their claims were assessed against that country. The applicants claim to be Tamils from Trincomalee in the Eastern Province. The first applicant is the wife of the second applicant, and the third and fourth applicants are their children. On 18 January 2018, a Registrar of the Court made orders appointing the first applicant the litigation guardian of the third and fourth applicants.

3. The second applicant, being the husband, departed Sri Lanka illegally on 27 July 2012 and arrived on Christmas Island on 17 August 2012. The first, third and fourth applicants departed Sri Lanka illegally on 26 November 2012 and arrived on Christmas Island on 13 December 2012. The third and fourth applicants have been included in the application for the Safe Haven Enterprise visas as members of the family unit of the first applicant.

4. The first applicant claims to fear harm because of the second applicant's profile as an imputed supporter of the Liberation Tigers of Tamil Eelam (“LTTE”), on the basis of being a Tamil woman who has been sexually assaulted, and for being a returned asylum seeker who has departed Sri Lanka illegally. The second applicant claims to fear harm on the basis of a real or imputed association, including familial association with the LTTE, as a Tamil and a young Tamil male from the east, and for being a returned asylum seeker who departed Sri Lanka illegally.

5. The applicants made a joint application for the Safe Haven Enterprise visa dated lodged on 17 May 2017. The first and second applicants provided supporting statements dated 24 February 2017, and a supplementary statement was provided by the second applicant dated 31 July 2017 prior to the interview with the delegate. Following the interview, the applicants' representative provided a post‑hearing submission to the delegate dated 15 August 2017.

6. On 11 October 2017, the delegate delivered two decisions, first in respect of the first applicant and her children, and a further decision of the same date in respect of the second applicant, refusing to grant the applicants Safe Haven Enterprise visas.

7. By letters dated 17 October 2017, the Authority wrote to the applicants explaining that the application for visas had been referred to the Authority for review and giving the applicants an opportunity to put on new information and submissions. The first and second applicants provided submissions to the Authority dated 24 October 2017.

8. The Authority referred to the submissions made on 24 October 2017, and had regard to the same, and found that there were exceptional circumstances to justify considering the new information that was provided and found that the media articles post-dated the delegate's decision. The Authority identified that they were items concerning general country information and which did not refer to the applicants, and took into account the significant amount of general country information already in the material before the Authority and referred to the reports included in the post‑interview submissions. It was in those circumstances the Authority was not satisfied there were exceptional circumstances to justify considering that new information.

9. The Authority in its reasons identified the background to the visa application and had regard to the information referred by the Secretary under s 473CB of the Act. The Authority summarised the applicants' claims and referred to the relevant law.

10. The Authority found that the second applicant did not suffer serious harm between 2007 and July 2012. The Authority accepted that there was an incident in 2012 and noted that the second applicant agreed that the authorities had not sought, detained or displayed any interest in him, apart from occasional questioning, in the five years following his detention in 2007. It was in those circumstances the Authority found it was implausible that the second applicant was of any interest whatsoever to the authorities because of a LTTE profile and that the authorities simply left the house and went away. The Authority found the claims of incident by the authorities not to be plausible as the second applicant was not arrested, detained or taken to another location. The Authority also noted the second applicant has not claimed any of his family members have been questioned about his LTTE activities. The Authority was not satisfied that the second applicant was himself of any adverse interest to the authorities. The Authority found that whilst the second applicant was questioned and suffered serious harm in July 2012, this was because of the incident involving S and the second applicant was not himself a person of adverse interest to the authorities.

11. The Authority referred to the second applicant's claims that his family told him that the Sri Lankan army had returned to the family home and had raped and tortured the first applicant. The Authority accepted that the first applicant had been the subject of a rape but did not accept that it was linked to any real or imputed LTTE profile of the second applicant.

12. The Authority was satisfied at the time the second applicant departed Sri Lanka, he was of low interest to the authorities in the context of providing information about S. The Authority found the second applicant was not himself of any adverse security interest, and that he was not then imputed with any membership of, or support for, the LTTE.

13. The Authority did not accept that the Sri Lankan authorities have any adverse interest in the second applicant. The Authority did not accept that K has been detained because of the second applicant or his family, or that the authorities are waiting to arrest the second applicant upon his return.

14. The Authority was satisfied the second applicant does not face a real chance of harm at the hands of the Sri Lankan authorities because of any real or imputed membership or association, including familial association, with the LTTE. The Authority was satisfied the second applicant does not face a real chance of harm at the hands of the Sri Lankan authorities because of the incident with S in July 2012.

15. The Authority accepted that the first applicant was the subject of Sri Lankan authorities coming to the family home after the second applicant's departure and questioning her about his whereabouts. The Authority found that the first applicant's evidence indicates that the assault on her was opportunistic assault by three soldiers who became aware her husband was not present in the house. The Authority did not consider it plausible that the authorities took the first applicant for an interrogation as to the second applicant's whereabouts and did not accept this part of her claim.

16. The Authority was satisfied that the assault on the first applicant was opportunistic and criminal assault perpetrated by individual members of the Sri Lankan army. The Authority found it was an isolated incident and that it occurred because the primary applicant had been identified as a vulnerable target because of the absence of her husband, and for being part of a female headed household. The Authority did not accept that it was linked to the second applicant or any adverse security profile.

17. The Authority noted that neither the first applicant nor the second applicant have claimed that the family will not remain together if they are returned to Sri Lanka. The Authority was satisfied that if the first applicant returns to Sri Lanka, she will not be perceived as a vulnerable target living without a male in the household. The Authority was satisfied that the perpetrators of the original incident have no reason to seek out and harm the first applicant. The Authority found that the first applicant does not face a real chance of serious harm, including rape or sexual violence at the hands of the authorities and members of the Sri Lankan army, should she return to Sri Lanka.

18. The Authority was satisfied that the third and fourth applicants do not face a real chance of harm at the hands of the Sri Lankan authorities arising from the assault of the first applicant.

19. The Authority was not satisfied that the first, third or fourth applicants face a real chance of harm at the hands of the Sri Lankan authorities arising from their association with the second applicant.

20. The Authority found that the second applicant does not have an adverse profile with the authorities for any reason, including any imputed LTTE connection, including previous connections to S, any pro-Tamil, separatists, anti-government or other activities.

21. The Authority was satisfied on the material before the Authority that Tamil males do not face a real chance of harm on the basis of age, ethnicity, and geographic origin and/or location.

22. The Authority expressly referred to having found that should the first applicant return to Sri Lanka, she will do so with the second applicant. The Authority was satisfied that the first applicant will not be living as a single female, or as a female head of household, or a female only house. It was in these circumstances the Authority was satisfied that the first applicant does not face real chance of harm on the basis of being a Tamil woman who has been sexually assaulted in the past, or a female.

23. The Authority was satisfied the third and fourth applicants will remain with the parents if they return to Sri Lanka. The Authority was satisfied the third and fourth applicants do not face a real chance of harm on the basis of their status as children, or for any reason associated with the claims of the first and second applicants.

24. The Authority was satisfied the applicants are not of any adverse interest to the Sri Lankan authorities and that they do not face a real chance of harm for any real or imputed association with the LTEE, including the second applicant's association with his father and with S, because the first applicant is a Tamil woman who has been sexually assaulted, arising from past incidents with the Sri Lankan authorities, for being Tamils or Tamil male, females or children from the East, or because of their religion.

25. The Authority accepted that the applicants will be returning as illegal departees. The Authority found that any fine or other requirements of bail, surety or a guarantee, would not constitute serious harm. The Authority found that in this case any questioning and detention that the applicants may experience would be relatively brief and would not constitute serious harm as non-exhaustively defined by the Act.

26. The Authority found the provisions of the Immigrants and Emigrants Act 1949 (Sri Lanka) are laws of general application. The Authority was satisfied that the applicants being fined, detained or questioned under the Immigrants and Emigrants Act 1949 (Sri Lanka) would not constitute serious harm and would be the exercise of laws of general application applied to all Sri Lankans equally. The Authority was not satisfied the first and second applicants face a real chance of serious harm for having departed Sri Lanka illegally.

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

28. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk the applicants would suffer significant harm. The Authority found the applicants did not meet the criteria under s 36(2)(aa) of the Act.

29. The Authority found that none of the applicants meet the definition of refugee or the complementary protection criteria, and accordingly do not meet the criteria under s 36(2)(b)(i) or s 36(2)(c)(i) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   7. The IAA committed jurisdictional error in forming an unreasonable view that the Applicant will not be living as a single female, as a female head of household or in a female only house [CB726] or perceived as a vulnerable target living without a male in the household [CB723] when there was no evidence which supported this conclusion, that the history on a fair reading would suggest the other way, and the issue of whether the Applicant would or would not be living once back in Sri Lanka with a male was not raised or properly considered, such also that the Tribunal failed to take into account relevant material.

   Particulars.

   The evidence did not specifically refer to the issue of whether the Applicant would be living with a male upon her return; the IAA found that should the Applicant return to Sri Lanka 'she will do so with the second applicant [CB726] and prognosticated that the Applicant will not be living as a single female, as a female head of household or in a female only house [CB726]. Central to this conclusion is the assumption that the Applicant and the 2nd Applicant would be living together upon return, a conclusion which was not canvassed nor is founded in the evidence.

   The evidence established the 2nd Applicant left Sri Lanka before the Applicant did, that subsequently the authorities came looking for the 2nd Applicant who had already fled; the Applicant was later raped by soldiers with knowledge that the 2nd Applicant had left Sri Lanka; and that the 2nd Applicant was of  interest to the Sri Lankan authorities when he left Sri Lanka

   8. The IAA committed jurisdictional error by not properly considering the question of whether the Applicant will reside with a male upon her return to Sri Lanka, such issue being central to the application, and failed to consider whether the 2^nd Applicant, if he did return and live with the Applicant, may be forced to leave the home or otherwise not live with the Applicant if returned to Sri Lanka.

   Particulars

   See 7 Above

2. Mr Foster of counsel, on behalf of the applicants, confirmed that grounds 1 to 6 were abandoned and that it was only grounds 7 and 8 in the amended application that were pressed.

3. Mr Foster addressed grounds 7 and 8 together identifying the adverse findings by the Authority in relation to the first applicant being found by the Authority in paragraph 52 on page 723 of the Court Book that she would not be perceived as a vulnerable target living without a male in the household, and, finally, in paragraph 66, that the first applicant will return to Sri Lanka with the second applicant and that she will not be living as a single female, as a female head of household or in a female only house. Mr Foster challenged those findings and submitted that there was no evidence to support those findings.

4. There was ample evidence in the circumstances in the present case to support the finding that the first and second applicants had lived together in Sri Lanka and they had lived together in Australia. This is evidence from which the finding that they would return to Sri Lanka together was open on the material before the Authority and cannot be said to lack an evident and intelligible justification.

5. Further, this is a case where the issue of the applicants returning to Sri Lanka together had expressly been addressed in the adverse findings by the delegate in the first decision concerning the first applicant. At page 300 of the Court Book, the delegate found that the first applicant if returned to Sri Lanka will be returned with second applicant.

6. In the second delegate's decision, at page 327 of the Court Book, the delegate found that the rape occurred given that the first applicant's husband had left Sri Lanka and she was without protection and referred to the crime as being opportunistic. The delegate said that if the applicant's wife and daughters were returned to Sri Lanka, they would be in the company of the husband who is the head of the household.

7. Mr Foster of counsel submitted that the Authority should have considered the possibility that the second applicant may leave the first applicant. No such claim was advanced on the material before the Authority. The Authority did not need to deal with a claim that was not advanced and that did not fairly arise on the material. A claim that was not advanced and that did not arise on the material cannot give rise to any jurisdictional error. No such claim fairly arose on the material before the Authority.

8. Mr Foster suggested that the Sri Lankan authorities might detain the husband. It is clear the Authority addressed that consideration and made an adverse finding that was open to the Authority in that regard. No submissions were advanced to the Authority for the Authority to address the proposition that the first applicant would subsequently be the subject of having to live as a single female. It is clear that the issue of the first and second applicants returning to Sri Lanka together was the subject of express findings before the delegate.

9. The applicants had an opportunity by reason of the letters from the Authority to raise new claims and submissions and no new information or submissions were advanced in respect of the proposition that the second applicant would leave the first applicant, or that he would otherwise be forced to leave the home to the extent that the material before the Authority identified a potential fear by the second applicant that he would be taken by the Sri Lankan authorities. That fear was the subject of express findings to the contrary. Mr Foster referred to other answers given in the entry interviews, none of which advanced a claim to the effect that the second applicant would leave the first applicant, nor was any such claim identified in the statements to which the Court was taken. No such claim fairly arose on the material before the Authority. No jurisdictional error as alleged in grounds 7 and 8 of the amended application is made out.

1. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 May 2019