FGQ18 v Minister for Immigration and Anor

[2020] FCCA 995

FEDERAL CIRCUIT COURT OF AUSTRALIA

FGQ18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 995

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s decision was affected by bias – whether the Authority correctly identified the issues and applied the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: FGQ18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 521 of 2018

Judgment of: Judge Street

Hearing date: 28 April 2020

Date of Last Submission: 28 April 2020

Delivered at: Sydney

Delivered on: 28 April 2020

REPRESENTATION

The Applicant appeared in person via video link

Solicitors for the Respondents: Mr M Sunits via video link
Australian Government Solicitor

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

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

DATE OF ORDER: 28 April 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 521 of 2018

FGQ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 pt 7AA of the Act made on 11 September 2018. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. 

3. The applicant was found to be a Tamil of Sinhalese ethnicity and a Catholic from a village in the Northern Province of Sri Lanka. 

4. The applicant claimed that his father provided support for the Liberation Tigers of Tamil Eelam (“LTTE”). 

5. The applicant alleged that there was a bomb blast in 2007 that caused his family to move away from their home for about a year and a half. The applicant alleged that he moved around, hiding from the Sri Lankan Army (“SLA”) until he left in August 2012. 

6. The applicant alleged that he was held for two days by the SLA at a checkpoint and was released with the help of a Reverend in 2010. 

7. The applicant claimed to fear harm from the Sri Lankan authorities because they will falsely believe he was involved in the bomb blast or was involved with the LTTE and because he left Sri Lanka illegally and sought asylum in Australia. 

8. The applicant applied for the Safe Haven Enterprise visa on 22 September 2017. A delegate of the first respondent (“the Delegate”) refused the application on 25 June 2018. 

9. In support of his application for a Safe Haven Enterprise visa, the applicant identified in his statement that there were previous interviews with the department that he did not have, and the applicant requested that he be provided with information so that he could respond to the same. 

10. The applicant in his statement also addressed his identity and referred to his father sending him identity documents that were received when he was in Nauru and were destroyed in a fire in Nauru. The applicant did not suggest that any document concerning his involvement in the bomb blast was destroyed in that fire. 

11. The Delegate, in the Delegate’s decision, referred to the applicant being asked to provide further evidence in support of the 2007 bomb incident at the Safe Haven Enterprise visa interview. The Delegate noted that the applicant had not provided any further supporting information. There was no suggestion by the applicant in response that relevant documents had been destroyed in a fire in Nauru. 

12. On 28 June 2018, the Authority wrote to the applicant explaining that the application for the Safe Haven Enterprise 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. No new information or submissions were provided by the applicant in response to the timeframe identified in that letter. 

13. The Authority identified the background to the Safe Haven Enterprise visa application and had regard to the material referred by the Secretary under s 473CB of the Act. 

14. The Authority summarised the applicant’s claims and was not satisfied that the applicant’s father provided more than low level assistance to the LTTE. The Authority was not satisfied that the applicant was ever suspected by the authorities to be an LTTE member or a supporter or to be otherwise a security concern. 

15. The Authority also took into account the age of the applicant and was not satisfied that the LTTE’s practices led to the authorities having an adverse interest in the applicant. 

16. The applicant provided documents in support of the alleged bomb blast to which the Authority referred. The Authority identified having concerns in relation to the authenticity of the MP’s letter and the vague nature of the details in the letter.  The Authority also referred to having concerns in respect of the Priest’s letter. The Authority found that the authors of the letter did not personally witness any alleged treatment. The Authority gave the letters little weight, given that the authors did not have firsthand knowledge of the applicant’s or his family’s experiences. 

17. The Authority found that the school principal’s letter did not contain information relevant to the applicant’s claims. 

18. The Authority referred to having concerns about the applicant’s claims and materials supporting the alleged bomb attack. Given the significance of the alleged incident involving 200 army soldiers being buried, the Authority did not accept it was plausible that there would be no publicly available reporting on the incident. 

19. The Authority identified other implausibility in respect of the applicant’s claims concerning the SLA members coming to his house. The Authority did not accept these claims by the applicant. The Authority did not accept that the Sri Lankan authorities had any suspicions of any member of the applicant’s family being involved in the bombing or otherwise helping the LTTE. 

20. The Authority identified other concerns about the plausibility of the applicant’s claims and, in particular, the implausibility of the SLA not approaching the applicant on any other visits and letting him come and go. The Authority found it implausible that the applicant and the other members of his family would not have been intercepted by the SLA if they were of any interest. 

21. The Authority found the applicant’s claims concerning the incident in 2010 with the SLA to be confused and contradictory.  

22. The Authority identified concerns in respect of the applicant’s credibility and found much of his evidence to be vague and internally inconsistent.  The Authority did not accept that the applicant was suspected of having involvement with the LTTE or in any bombing incidents. The Authority did not accept the applicant’s claims about the alleged incident in 2010 and did not accept that the applicant was of any adverse interest to the authorities after he departed or at the time he departed. The Authority did not accept that the applicant’s family has been harassed either before or after his departure. 

23. The Authority was not satisfied that the applicant is or would be wanted by the authorities on account of any LTTE related matters or any other security or criminal matters. 

24. The Authority was not satisfied that the applicant would be perceived as having the kind of profile that would lead to a real chance of harm upon return. The Authority was not satisfied that the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race or any LTTE or separatist imputations. 

25. The Authority found that the applicant does not face a real chance of harm on account of being of Tamil-Sinhalese ethnicity or by reason of being a child of interethnic marriage. 

26. The Authority was satisfied that the applicant does not have a well-founded fear of persecution on any religious grounds. 

27. The Authority was satisfied that the applicant does not have a well-founded fear of persecution from his familial financial circumstances. 

28. The Authority accepted that the applicant had departed illegally but was not satisfied that the applicant would face a real chance of suffering a threat to his life or liberty or other harm amounting to serious harm during the processing or if he was detained. The Authority was also not satisfied that the applicant would be unable to pay a fine if imposed. 

29. The Authority found the process relating to the applicant’s breaches under the Sri Lankan Immigrants and Emigrants Act would be a result of a law of general application and it did not amount to persecution for the purpose of ss 5H(1) or 5J(1) of the Act. 

30. The Authority was not satisfied that the applicant faces a real chance of persecution arising from the circumstances he may face in the returnee process or from the processes and consequences of his illegal departure. 

31. The Authority was satisfied that the applicant would have support upon return to his home region and that any discrimination he may face will be low level and will not amount to serious harm. 

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

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

Before the Court

1. These proceedings were commenced on 9 October 2018. On 5 December 2018, 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. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

3. The applicant alleged that the decision was not fair and that he had been on Nauru and the documents relevant to his claims had been destroyed in a fire. The only documents that the applicant identified in his statement that were destroyed by the fire concerned his identity. The Authority accepted the applicant’s identity and, accordingly, no error arises by reason of the applicant’s reference to the fire in Nauru. 

4. Further, it is apparent that the applicant adduced other documents purporting to support his claims in respect of the bomb blast. The Authority provided logical and rational reasons for giving those documents little weight. 

5. The applicant also made reference in having been the subject of other interviews in Nauru and requesting records from the department. Under s 5AAA(2) of the Act, it is for the applicant to provide sufficient evidence to establish his claims. Nothing said by the applicant in relation to the interviews in Nauru gives rise to any jurisdictional error by the Authority. 

6. The applicant’s submissions from the bar table otherwise addressed the grounds in his application, to which the Court will refer. Nothing said by the applicant identified any jurisdictional error by the Authority. The applicant’s submissions were, in substance, an invitation to engage in merits review. 

The grounds

1. The grounds in the application are as follows:

   1.Jurisdictional error.

   2.Bias based on conscious or unconscious prejudice by ignoring relevant materials.

   3.Identifying a wrong issue on a wrong question.

Ground 1

1. In relation to ground 1, the bare assertion of a jurisdictional error is not capable of giving rise to any error. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. The adverse findings by the Authority in relation to the applicant’s credibility was open for the reasons given by the Authority. 

2. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, the Court asked the applicant which relevant materials were ignored, and the applicant referred to original documents being in his home country that he could not obtain. There is no relevant material that has been identified that the Authority failed to take into account.

2. The applicant referred to the Safe Haven Enterprise visa interview by the Delegate only being for one and a half hours; that is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Authority in the conduct of the review under pt 7AA of the Act might not bring an independent and impartial mind to the determination of a matter on its merits. 

3. The adverse findings by the Authority are not conduct by a reason of which a reasonable lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. 

4. On the face of the material before the Court, which includes the reasons of the Authority, the Authority conducted the review with an open mind, reasonably capable of persuasion as to the merits. No case of actual or apprehended bias is made out. 

5. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. Ground 3 is unparticularised and no ‘wrong issue on a wrong question’ has been identified by the applicant. On the face of the Authority’s reasons, the Authority correctly identified the relevant law and made adverse findings dispositive of the applicant’s claims that were open to the Authority. 

2. No jurisdictional error is made out by ground 3.

3. As the application fails to make out any jurisdictional error, and as no jurisdictional error has been made out by anything said by the applicant, the application is dismissed. 

I certify that the preceding fifty (50) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 28 April 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 18 June 2020