FHD17 v Minister for Immigration

[2019] FCCA 908

FEDERAL CIRCUIT COURT OF AUSTRALIA

FHD17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 908

Catchwords:
MIGRATION – Application for safe haven enterprise visa – applicant’s fears unfounded – country information – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.5H(1), 5J, 36(2), 473CB, 473DD, 476

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: FHD17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1191 of 2017

Judgment of: Judge Egan

Hearing date: 21 March 2019

Date of Last Submission: 21 March 2019

Delivered at: Brisbane

Delivered on: 21 March 2019

REPRESENTATION

Applicant: In person

Solicitor for the First Respondent: Mr King of Minter Ellison

IT IS ORDERED THAT:

1. The application for review filed on 4 April 2018 be dismissed. 

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1191 of 2017

FHD17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 17 April 2013.  On 5 September 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV).  On 10 April 2017, a delegate of the Minister refused to grant the applicant a SHEV.  On 13 April 2017, the Minister’s department referred the delegate’s decision to the Immigration Assessment Authority (‘the Authority’) for review. 

2. On 26 May 2017, the applicant sent a written submission to the Authority which comprised a statement, some extracts relating to country information considered relevant by the applicant, and a number of links to websites. On 5 June 2017, the Authority wrote to the applicant asking him to explain why the information in the 26 May 2017 submission satisfied the requirements of section 473DD of the Migration Act 1958 (Cth) (“the Act”). On 21 June 2017, the applicant sent a further submission to the Authority which comprised two letters of support. On 2 November 2017, the Authority affirmed the decision of the delegate not to grant the applicant a SHEV.

3. On 4 December 2017, the applicant filed an application for review of the decision of the Authority pursuant to the provisions of section 476 of the Act. The applicant filed an originating application, which was later superseded by the filing of an amended application, on 4 April 2018. In that amended application, under the heading Grounds of Amended Application, the applicant asserted that the Authority had made an error of law, namely, a jurisdictional error in failing to discern “a convention reason/convention nexus” in the applicant’s case. The particulars of such ground were as follows:

   “IAA failed to discern a convention nexus, the relevant nexus being a Tamil imputed with LTTE ideology or simply a Tamil. …”

4. The particulars then proceeded to restate the facts which the applicant put before the Authority. It is only when one reaches the last paragraph of the amended application’s grounds that the Court is able to discern what was the substance of the application for review.  The last paragraph on page 3 of the amended application was as follows:

   “The applicant left Sri Lanka illegally in March 2013. Because he left illegally and claimed asylum the authorities will suspect he was involved with the LTTE. His siblings may not have faced any abuse from the authorities because they are married.
   • After the applicant's departure the CID visited the applicant's assistant at the stall and his assistant has since closed the stall.
   • The military and paramilitary groups continue to be active in Sri Lanka and threaten and extort Tamils. Victims of the threats and extortion are too frightened to report these incidents and no one knows what is happening in Sri Lanka. Military camps are expanding and the military continue to occupy and administer the Eastern Province. There is crime and the military are involved in drug dealing in Tamil areas.
   • The applicant's fear extends to all of Sri Lanka and he cannot obtain protection.

5. The applicant’s claims for protection were set out in paragraph [7] of the reasons of the Authority as follows:

   “• The applicant is a Tamil from Batticaloa, Eastern Province, Sri Lanka.

   • The applicant's father disappeared in 1984 and is presumed dead. The applicant does not know what happened to his father but he is aware that around this time the army was active in the area and murdered Tamils.

   • The applicant's brother was detained and imprisoned from 1986 to 1989. The applicant has provided documents and English language translations from the Minister of Internal Security and the Army Detention Camp Boosa relating to his brother's detention under the Prevention of Terrorism Act (PTA).

   • The applicant's mother was killed in an army atrocity in 1990. As her body was not recovered there was no funeral and the applicant is sad about this. The applicant has provided a copy of her death certificate and reports of the massacre in which she was killed.

   • The applicant's brother-in-law was killed by the army while living in a temporary refugee camp in 1992/1993.

   • The LTTE was active in the Batticaloa area and the security authorities harassed and mistreated the general Tamil population with impunity. The applicant provided a number of reports of incidents of mistreatment of Tamils during the civil war and in Joseph camp between 2009 and 2014. The applicant was held with other Tamils on a number of occasions in round up exercises conducted by the authorities.

   • The applicant had a vegetable stall at the local market. His stall was destroyed in the 2004 tsunami and he did not receive any government compensation to assist with the repairs, although his aunt was provided some food rations.

   • In 2008 the applicant was stopped with others in a round up exercise and taken by the army to a military camp with a number of other Tamil men, mostly youths. He was questioned in the camp about any LTTE links and shown pictures of people and asked to identify any LTTE members. He was beaten and kicked while detained. He was asked to bring Tamil girls to the camp. The applicant was asked to sign a confession written in the Sinhala language. The applicant refused to sign the confession and was assaulted as a consequence. A Muslim person in the camp acted as interpreter during the questioning. This person was known to the applicant from the market and he confirmed with the authorities that the applicant was a stall holder and not linked to the LTTE. The applicant was released the next day. The applicant heard that the other Tamils taken at the same time as him were not released.

   • The applicant took a few days to recover from his injuries and his assistant managed his stall in his absence. The Criminal Investigation Department (CID) visited the market during his absence and asked about the applicant's whereabouts. After the applicant had returned to work at his stall the CID visited again and threatened that they could detain the applicant again if he did not make regular payments to them. The CID demanded regular payment of 50,000 rupees per month. The applicant told them he could not meet such a high payment and agreed to pay a lesser amount. From this time the CID visited weekly and collected money from the applicant. As a result of the extortion payments the applicant had little money left over but he was concerned for his safety if he did not continue to operate his stall and make the payments. These payments continued until 2013 when the applicant decided to leave Sri Lanka. The police and paramilitary groups also took items from his stall and refused to pay.

   • The applicant left Sri Lanka illegally in March 2013. Because he left illegally and claimed asylum the authorities will suspect he was involved with the LTTE. His siblings may not have faced any abuse from the authorities because they are married.

   • After the applicant's departure the CID visited the applicant's assistant at the stall and his assistant has since closed the stall.

   • The military and paramilitary groups continue to be active in Sri Lanka and threaten and extort Tamils. Victims of the threats and extortion are too frightened to report these incidents and no one knows what is happening in Sri Lanka. Military camps are expanding and the military continue to occupy and administer the Eastern Province. There is crime and the military are involved in drug dealing in Tamil areas.

   • The applicant's fear extends to all of Sri Lanka and he cannot obtain protection from the authorities. The applicant provided a copy of the February 2017 report released by the Office of the UN High Commissioner for Human Rights on Sri Lanka which assess the progress made with the implementation of the Human Rights Council resolution promoting reconciliation, accountability and human rights.”

6. At [3] of the Authority reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of section 473CB of the Act. At paragraphs [8] and [9] of the Authority reasons, the Authority set out the matters relating to refugee assessment as contained in sections 5H(1) and 5J of the Act.

7. The applicant claimed that the LTTE (Liberation Tigers of Tamil Eelam) were active in Batticaloa and that the government security forces harassed and mistreated the general Tamil population.  The applicant claimed that he had been rounded up with other Tamils on several occasions, and that on one occasion in 2008, he had been kicked and beaten whilst detained. 

8. The applicant further claimed that he used to operate a vegetable stall at a local market.  He stated that after re-establishing the stall following its destruction by a tsunami in 2004, the applicant was extorted by members of the Sri Lankan government’s criminal investigation department (CID).  The applicant stated that he fled Sri Lanka in 2013.  He claimed to fear harm if returned to Sri Lanka on account of his Tamil ethnicity, as well as having suspected links with the LTTE.  The applicant claimed that he could not obtain any protection from the authorities. 

9. As to the 26 May 2017 submission made to it by the applicant, the Authority found that part of the applicant’s statement reiterated the applicant’s claims regarding extortion and his fear of harm as a Tamil.  It was considered that that information had been before the delegate and was not new information ([4] of Authority reasons at CB 275).  It was also noted that another part of the applicant’s statement related to heightened activity by the LTTE, as well as matters going to racial tensions. 

10. The Authority had invited the applicant to comment on why the information could not have been given to the Minister’s department prior to the handing down of the decision by the delegate, and why the information was credible personal information which was not previously known, and which may have affected consideration of the applicant’s claims ([5] of Authority reasons).  The Authority noted that the applicant did not respond to the Authority’s letter.  The Authority found that there was no information before it to explain why the information provided by the applicant could not have been earlier put before the delegate. 

11. It also found that it was not satisfied that the information contained credible personal information.  It was not satisfied that any exceptional circumstance existed to justify the Authority considering the new information.  As to the 21 June 2017 submission made by the applicant, the Authority noted that the letters in support discussed events which occurred before the delegate’s decision.  The Authority found that there was no reason to believe that the applicant could not have obtained the letters of support at an earlier time, the applicant having been put on notice as to the limitations in submitting further evidence after the making of the delegate’s decision.

12. The Authority was also not satisfied that there were exceptional circumstances to justify the Authority considering the new information ([6] of Authority reasons).  The Authority closely examined and noted the claims made by the applicant in [11]-[30] of its reasons.  The Authority accepted much of the applicant’s account of events, namely, that family members had been harmed ([11] of reasons) and that he had been detained along with other Tamils on several occasions, including the time in 2008 when he had been beaten. 

13. However, the Authority noted that a significant change had occurred in Sri Lanka following the end of the civil war, including the defeat of the Rajapaksa Government in 2015 ([12] of reasons).  The Authority considered recent country information prepared by the Australian Department of Foreign Affairs and Trade (DFAT) which showed an improvement in the security situation had resulted in a decrease of the number of Tamils in detention. 

14. At [14] of its reasons, the Authority found that the new government had taken steps to curb the excesses of military power exercised under the previous government, and that DFAT had assessed that monitoring and harassment of Tamils in day-to-day life had decreased significantly.  The Authority acknowledged that there were some reports of continued arbitrary detention and harm perpetrated by security forces against Tamils.  However, the Authority found that the country information did not support a finding that the applicant would be harmed on return to Sri Lanka by reason of his being a Tamil from the Eastern Province. 

15. The Authority found that the applicant did not have any real or imputed LTTE profile, nor that he had been involved in Tamil separatist activities ([16] of reasons).  The Authority found that country information did not show extortion to be a widespread problem ([17] of reasons).  DFAT’s 2017 country report was noted as recording that there was no widespread extortion of businessmen in Sri Lanka.  Nor that there was any criminal activity by paramilitary groups.  The Authority found that there was not a real chance that the applicant would suffer harm on his return to Sri Lanka as a business operator ([18] of reasons).

16. The Authority found that though the applicant had not received compensation following the 2004 tsunami, that failure did not amount to serious harm.  It was also noted at [19] of the Authority reasons that the applicant did not claim any fear of harm due to lack of government support.  The Authority found that the likelihood of the applicant being the victim of crime should he be returned to Sri Lanka was remote ([20] of reasons).  The Authority found that whilst the applicant might be detained upon his return to Sri Lanka by reason of his having left the country unlawfully, he would only face the prospect of a brief detention, which did not give rise to a real chance of harm ([21]-[28] inclusive of reasons).

17. The Authority also found that the applicant would not face a risk of harm upon his return to Sri Lanka as a failed asylum seeker, or because of any LTTE links ([30] of reasons). In the light of its findings, the Authority did not consider that the applicant met the requirements of the definition of a refugee pursuant to the provisions of section 5H(1) of the Act. The Authority also, for the same reasons as advanced in respect of section 36(2)(a) considerations, did not meet the complementary protection criteria as set out in section 36(2)(aa) of the Act. It did not find that the applicant faced the prospect of a real risk of significant harm should he be returned to Sri Lanka. The Authority did not fail to make an obvious enquiry about a critical fact. [1]

    [1]        See Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25].

18. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the Authority.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

19. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

20. No jurisdictional error has been established. The application for review is without merit and is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 29 March 2019