Fja18 v Minister for Immigration

[2020] FCCA 1922

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJA18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1922

Catchwords:
MIGRATION – review of decision – Safe Haven Enterprise (Class XE) (Subclass 790) visa – new information – whether credible personal information – no exceptional circumstances – no jurisdictional error – dismissed

MIGRATION – review of decision – dismissed – costs

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 473CA, 473DD(a), 473DD(b)(ii)

Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

Applicant: FJA18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 528 of 2018

Judgment of: Judge Jarrett

Hearing date: 20 April 2020

Date of Last Submission: 20 April 2020

Delivered at: Brisbane

Delivered on: 15 July 2020

REPRESENTATION

Solicitors for the Applicant: Rodney Senanayake Lawyers

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The amended application filed on 18 January, 2019 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 528 of 2018

FJA18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. By his amended application filed on 18 January, 2019, the applicant seeks judicial review of a decision of the second respondent made on 14 September, 2018 which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.  The applicant and the first respondent have both filed written submissions. 

Background

1. The applicant arrived in Australia on 10 September, 2012 as an unlawful maritime arrival.  At the invitation of the first respondent, on 30 March, 2017 the applicant applied for Safe Haven Enterprise (Class XE) (Subclass 790) visa.

2. In his written submissions, the first respondent sets out the claims made by the applicant to the protection visa as follows:

   a)the applicant is a Sri Lankan of Sinhalese ethnicity and a Roman Catholic from the Negombo district in the Western Province. His village has Sinhala and Tamil people and he speaks both languages;

   b)in 2004, he started fishing around Bathalangunduwa Island. The Sri Lankan Navy patrolled and managed the waters and island. It was known to be a haven for Liberation Tigers of Tamil Eelam supporters;

   c)in October, 2011 the Sri Lankan Navy pulled up beside his boat, pointed guns at him and kicked him into the water. Once or twice a week the Navy would take half his catch, verbally abuse him, and call him a derogatory word;

   d)the President of the fishing society was questioned by the Navy about whether he had been involved with the LTTE. The Navy believed he was an LTTE member or supporter and had been supplying fuel to the LTTE;

   e)he made plans to go to Saudi Arabia. While he waited for a visa, he continued to be harassed and abused by the Navy;

   f)in August, 2012 the Navy demanded his catch and he told them he had caught only one fish and could not give it to them. They slapped him twice, took his fish and made him kneel on the ground all day;

   g)his plan to go to Saudi Arabia did not work out, so he departed Sri Lanka by boat in August, 2012 and came to Australia. The Navy knew he left the country. They questioned and threatened his father and took his fishing pass; and

   h)in December, 2012 the Navy abducted and questioned his father and kept him over night. They held a gun to his father’s head. His mother complained to the police and his father was released the next day. The Navy continued to be abusive to his father.

3. On 18 January, 2018, the first respondent’s delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations. 

4. On 23 January, 2018 the decision was referred to the second respondent in accordance with s.473CA of the Act.

5. On 13 February, 2018 the applicant’s representative provided submissions to the second respondent.  According to the second respondent’s reasons, most of the submission addressed the delegate’s decision and findings and was not new information for the purposes of s.473DD of the Act.  The second respondent paid regard to those aspects of the submission.  However, the submission also contained one new claim and extracts from three sources of country information.  The second respondent considered that those matters were new information.  The new claim was that the applicant’s father was beaten and threatened by the Navy.

6. The consideration of the new information by the second respondent was forbidden unless the second respondent was satisfied that there were exceptional circumstances to justify the consideration of that material, amongst other things: s.473DD(a). The second respondent was not so satisfied. It considered the claim to be vague, a variation of the applicant’s previous claims and lacked detail. The second respondent noted that the applicant had the opportunity to detail this claim as part of his visa application, during his visa interview or in his post-visa application interview submission to the delegate, but did not. It was not satisfied that s.473DD(a) was met.

7. Nor was the second respondent satisfied that there were exceptional circumstances to justify considering the extracts of country information provided in the applicant submission. All of the information included in the submission pre-dated the applicant’s post-visa application interview submissions and the delegate’s decision. The second respondent considered that there was other relevant country information contained in full reports already before it about the matters raised in the extracts including information from Amnesty International dated 17 May, 2017 which the applicant submitted in support of his application. Again, it was not satisfied that s.473DD(a) was met.

8. The second respondent was not satisfied that the Navy targeted the applicant because they suspected he was an LTTE member or supporter. It was satisfied that when the applicant departed Sri Lanka in August, 2012 he was not of any interest to the Navy, the police, or other Sri Lankan authorities. The second respondent was not satisfied that the applicant’s father was abducted by the Navy, nor released the next day.

9. The second respondent found, based on the applicant’s evidence, that he was never questioned by the Navy or police about any LTTE involvement before he left Sri Lanka.

10. The second respondent found that there was no evidence that the applicant had engaged in any activities since his departure from Sri Lanka which may change his profile on return, and had regard to country information which indicated that the Sri Lankan authorities were mostly interested in the LTTE’s former leadership and high profile former LTTE members. It found that there was not a real chance that the applicant would be targeted by the Navy, the police, or others, for reasons of perceived LTTE membership or support or suspicions about him supplying fuel to the LTTE, or a perception that he is Tamil.

11. The second respondent was not satisfied that being a fisherman would be the only employment option available to the applicant, or that he could not find other employment. It was not satisfied that the harm the applicant experienced in the past would happen again if he returned to the fishing industry. The second respondent found that there was not a real chance that the applicant would be targeted for any harm by the Navy or other Sri Lankan authorities if he resumed work as a fisherman.

12. The second respondent was not satisfied that the evidence supported a finding that the applicant would face any harm from Sri Lankan authorities or others because he sought asylum in Australia and found that there was not a real chance the applicant would face any harm from Sri Lankan authorities or others for this reason.

13. The second respondent considered it very likely the applicant would be questioned at the airport upon return and could be charged under the Immigrants and Emigrants Act (1949) for his illegal departure and arrested by the Sri Lanka Police Airport Criminal Investigations Unit at Colombo International Airport. However, the second respondent considered that the evidence did not indicate that the processes and penalties imposed as a consequence of his breaches of the Immigrants and Emigrants Act were discriminatory on their face or in their application or enforcement. It was not satisfied that the processes and penalties imposed as a consequence of his breaches of the Immigrants and Emigrants Act amounted to serious harm or persecution.

14. Accordingly, the second respondent found that the applicant did not meet s.36(2)(a) of the Act.

15. As to the applicant’s claim for complementary protection, the second respondent accepted that the applicant may be charged under the Immigrants and Emigrants Act for his illegal departure and was very likely to be questioned, fined and detained. However, it was not satisfied there was a real risk of significant harm on this basis.

16. For similar reasons to those in respect of its refugee assessment, the second respondent was not satisfied that there was a risk of significant harm on for reasons of perceived LTTE membership, support or suspicions about supplying fuel to the LTTE, perceived Tamil ethnicity, Roman Catholic faith, returning to work as a fisherman, or returning failed asylum seeker. The second respondent found that the applicant did not meet s.36(2)(aa) of the Act.

17. On 14 September, 2018 the second respondent affirmed the decision of the delegate not to grant the visa.

Grounds of review

1. The applicants amended application filed on 18 January, 2019 contains one ground of review in the following terms (faithfully reproduced):

   1. The decision of the Immigration Assessment Authority (second respondent) was vitiated by a misconstruction or misapplication of the requirement of paragraph 473DD(a) of the Migration Act 1958 (Cth) in that the second respondent did not consider the extent to which the new information was ‘credible personal information’ under 473DD(b)(ii) and capable of informing ‘exceptional circumstances’, or substituted for ‘credible personal information’ a requirement of drafting precision, or understood itself to be satisfied that the new information be in fact true, constituting a constructive failure to exercise jurisdiction.

2. As the first respondent submits, this ground of review contains two discrete issues.  The first is whether the second respondent failed to consider whether the new information was credible personal information for the purposes of s.473DD(b)(ii) as part of its assessment of whether exceptional circumstances existed to consider the new information under s.473DD(a). The second is whether the Authority asked itself whether the new information was in fact true, rather than the lower threshold question of whether it was “capable of being believed”, for the purposes of satisfying s.473DD(b)(ii).

3. In AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 the Full Court gave consideration to the way in which the tribunal might discharge its obligations when considering whether exceptional circumstances exist for the reception of new information pursuant to s.473DD(a) of the Migration Act. At [14] the Full Court said (citations omitted):

   14.    As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii)  may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.

4. As to the new claim made by the applicant, the second respondent said:

   6. The new claim is that the applicant’s father was beaten and threatened by the Sri Lankan Navy (SLN) on a number of occasions. I am not satisfied there are exceptional circumstances to justify considering this new claim. This new claim is vague and a variation on the applicant’s existing claims involving what the SLN did to his father. There is no detail included with this new claim about the number of occasions and when they occurred, or any information about the alleged beatings and threats. Previously, the applicant claimed there were two incidents involving his father and the SLN, soon after he departed Sri Lanka in August 2012, and neither description of these incidents involved his father being beaten.  While the applicant’s claims to fear return to Sri Lanka included that the SLN continued to harass his father forcing him to abandon their traditional fishing waters, the applicant did not describe any harassment or threats after the two incidents which happened between August 2012 and December 2012. If the applicant’s father had been beaten and threatened on a number of occasions, the applicant had the opportunity to detail this claim as part of his SHEV application, during his SHEV interview or in his post-SHEV interview submission to the delegate, but he did not. I am not satisfied that s.473DD(a) is met.

5. I accept the first respondent submissions that these reasons reveal a sufficient basis for the second respondent’s finding that exceptional circumstances did not exist to justify consideration of the new claim. The second respondent considered the nature and extent of the new claim and the information in support of it. The reasons for rejecting the consideration of that new claim are clear on the face of the second respondent’s reasons. Given that the second respondent was not satisfied that the requirements of s.473DD(a) were met in respect of this new information, it was unnecessary to consider the requirements of s.473DD(b) of the Act.

6. As to the country information provided by the applicant in his additional submission, the second respondent said:

   8. I am not satisfied there are exceptional circumstances to justify considering this new information. All of it pre-dates the applicant’s post SHEV interview submission to the delegate, and pre-dates the delegate’s decision. In relation to the information from October 2012, while it is about the presence of the military and its involvement in fishing from the year the applicant departed Sri Lanka, there is other relevant information on these matters before me, in particular the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines, for December 2012. The second extract is very brief and includes information about impacts on the fishing industry. The third extract is also very brief and it is about the military continuing to occupy high security zones and impact the livelihoods of farmers and fishermen. There is however, other relevant country information contained in full reports already before me about these matters, including in the 174 pages of country information from Amnesty International dated 17 May 2017 which the applicant submitted in support of his application. I am not satisfied that s.473DD(a) is met.

7. Again, the second respondent’s reasons for rejecting the reception of this new information is patent.  The second respondent’s approach to this matter reveals no error.

8. The first respondent submits that the second issue revealed by this ground of review is misconceived. I agree. The second respondent did not make a finding about whether the new claim was true, or whether it satisfied s.473DD(b)(ii). It simply stated that if it were true, the applicant had the opportunity to raise it in his visa application, during his interview, or in his post-interview submissions, but had not availed himself of such opportunity. This, together with the fact that the new claim was “vague” and a “variation on the applicant’s existing claims involving what the Navy did to his father,” formed the basis for the second respondent’s finding that there were no exceptional circumstances to justify considering the new claim.

9. This aspect of the matter reveals no jurisdictional error either.

10. In his written submissions, the applicant advances arguments that are not captured by his ground of review.  He argues that although he is Sinhalese, he looks Tamil.  He argues that “In this jurisdiction all Sri Lankan's look alike to non Sri Lankans. But for a person from Sri Lanka I am categorized as a Tamil by looks and not a Sinhalese”.  However, this is not a claim that he advanced before the first respondent’s delegate or the second respondent.  He did advance of claim that he could speak both Sinhalese and Tamil and that sometimes that made the Navy personnel angry.  But he make made no claim that his physical appearance resembled that of a Tamil.  The second respondent was alive to the applicant’s claim that he could speak both languages.  In that respect, it said (footnotes omitted):

    The applicant, a Sinhalese man, is a member of the dominant ethnic group in Sri Lanka.  According to the 2012 census, 74.9 percent of the Sri Lankan population was ethnic Sinhalese.  The applicant did not claim to fear any harm because he is Sinhalese. The applicant claimed he was perceived as Tamil because he speaks both Sinhala and Tamil and has an accent. However, I was not satisfied the SLN and other Sri Lankan authorities perceived the applicant to be ethnically Tamil because he speaks Sinhala and Tamil, and I was not satisfied the SLN targeted the applicant for any harm based on a perception he was ethnically Tamil.

11. Beyond that, the first applicant in written submissions takes issue with the merits of the second respondent’s decision and the findings that it made on his claims.  There is no suggestion that the second respondent misunderstood any of his claims or did not deal with any particular aspects of them.  Properly analysed, his complaints are that his claims, where they were rejected by the second respondent, were not accepted by second respondent.

Conclusion

1. The applicants review application reveals no jurisdictional error on the part of the second respondent.  The amended application must be dismissed with costs.

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

Associate: 

Date: 15 July 2020