FKO17 v Minister for Immigration

[2018] FCCA 1772

FEDERAL CIRCUIT COURT OF AUSTRALIA

FKO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1772

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to exercise its powers under s 473DC of the Act – no jurisdictional error made out – further amended application dismissed.

Legislation:

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

Applicant: FKO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3837 of 2017

Judgment of: Judge Street

Hearing date: 2 July 2018

Date of Last Submission: 2 July 2018

Delivered at: Sydney

Delivered on: 2 July 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Hodges Legal

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the handwritten further amended application of ground 6 initialled and dated by the Court and the Court directs the applicant to file a further amended application in accordance with that form on or before 6 July 2018.

2. The further amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3837 of 2017

FKO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 22 November 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant arrived in Australia as an unauthorised maritime arrival with his wife and children on 21 November 2012. On 28 April 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

3. The applicant was found to be a Tamil Hindu from Batticaloa in the Eastern Province of Sri Lanka and his claims were assessed against that country. The applicant claimed to have departed Sri Lanka illegally. The applicant’s wife and children were included in the protection visa application as members of the family unit and did not advance any separate claim of their own.

4. In summary, the applicant claimed that he had owned a grocery shop and operated an auto-rickshaw and that his business was targeted by the Sri Lankan authorities and the Tamil Makkal Viduthalai Pulikal party (“TMVP”), as they wanted him to support the TMVP. The applicant alleged that in March 2008, he successfully ran the local election as an independent and that the position required him to move to Mandur while his family stayed in his hometown. The applicant alleged he had police escorts but they could not protect his wife and children.

5. The applicant alleged in May 2008, the TMVP asked him to run in the provincial election on their behalf and when he refused to do so, they were corrupt and violent. The applicant alleged when he refused to represent them, they threatened his life and the TMVP continually visited his wife and threatened the applicant and his family. The applicant alleged he was approached by the Eelam People’s Democratic Party (“EPDP”) who offered him protection from the TMVP if he joined them. The applicant said he accepted their offer as he was scared for himself and his family’s safety and believed their political position allied with his own.

6. On 10 May 2008, the applicant ran as an EPDP candidate in the federal election but was unsuccessful. On the day of the election, the TMVP attacked the applicant’s wife at his home in Batticaloa and, allegedly, they had gone there to kill him but he was in Mandur. On 9 June 2008, the applicant’s wife registered a complaint about the attack with the Human Rights Commission of Sri Lanka (“HRC”). The TMVP discovered the complaint and attacked the applicant’s family again on 20 July 2008 and his wife was severely beaten and injured trying to flee.

7. The applicant also alleged on 15 September 2012, the TMVP attacked his family again and they joined him in Mandur the next day and they fled Sri Lanka in November 2012. The applicant alleged that since his departure, his wife’s aunt has been interrogated by the TMVP about his current location and alleges he will be targeted by the TMVP for not joining them.

The Authority

1. By letter dated 3 May 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and 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 including a statement from his wife dated 23 May 2017.

2. The Authority had regard to the material referred by the Secretary under s 473CB of the Act and considered the submissions and new information that were provided. The Authority was satisfied that there were exceptional circumstances to justify considering the statement of the applicant’s wife and the Authority was satisfied that it was not new information and had regard to the same. The Authority otherwise considered new information in accordance with the requirements of s 473DC and s 473DD of the Act.

3. The Authority found that while it is plausible that as a shopkeeper the applicant suffered incidents of petty theft, the Authority was not satisfied that he was personally or systematically targeted by the authorities and military or any political or paramilitary group.

4. The Authority accepted the applicant’s primary claims that he stood for elections in 2008 and was an EPDP candidate and member during the provincial council elections. The Authority accepted that the EPDP and TMVP were political rivals during those elections and that the TMVP members assaulted the applicant’s wife because of the applicant’s political profile in the May 2008 election. The Authority did not accept that the assault on the applicant’s wife was due to the applicant or his profile and found that it occurred because of the report to the HRC. The Authority did not accept the wife was subject to any arrest or detention in July 2008 and September 2012. The Authority accepted that the applicant was granted police protection during the local council elections that concluded in March 2008 but was satisfied that this was a general and limited duration provision for candidates and did not indicate that he would have a particular or perceived risk profile. The Authority did not accept that the applicant was under police protection after the March 2008 election concluded.

5. The Authority noted that the applicant continued to serve as a local government representative until 2012 and that the TMVP would have been easily able to locate him if they wished to harm him. The Authority was not satisfied that the applicant was of any interest to the TMVP since the May 2008 election and rejected a claim that they had visited the wife’s aunt. The Authority was not satisfied that the applicant would face a real chance of harm from the TMVP or any other political or paramilitary organisation on return to Sri Lanka.

6. The Authority accepted that the TMVP would have become aware that the applicant’s wife was alone and vulnerable while her husband was living in Mandur. The Authority accepted it was plausible the men returned and demanded sexual favours and threatened her and her children. The Authority accepted that this conduct may amount to serious harm. The Authority was satisfied that the wife was targeted because she was living alone and vulnerable and there was nothing to suggest that the applicant and his wife would not live together if returned to Sri Lanka.

7. The Authority found that the TMVP had no interest in the applicant after 2008 and that the 2012 visit did not occurred. The Authority was satisfied that the applicant’s wife would not be seen as a single vulnerable woman and would not face a real chance of harm for any reason if returned to Sri Lanka. Nor was the Authority satisfied that the applicant’s children were ever subject to attempted kidnapping. The Authority was satisfied that the applicant did not face a real chance of harm arising from any real or imputed security or political profile or for any other reason or for any reason relating to ethnicity, religion or location if returned to Sri Lanka.

8. The Authority was further satisfied that the wife and children did not face a real chance of harm arising from the applicant’s profile or his activities. The Authority accepted that the applicant and his wife might be questioned on return as part of the airport screening process but was not satisfied they would be subjected to harm as returning asylum seekers.

9. The Authority noted that the children were never subject to bail or fines. The Authority accepted that there was a real chance the applicant and his wife would receive a fine, which they could pay in instalments but not a custodial sentence. The Authority found any questioning or detention would be brief and would not constitute serious harm. The Authority found the penalties were laws of general application. Having regard to all the evidence, the Authority found the applicant and his wife did not meet the criteria under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The ground in the further amended application is as follows:

   Ground 6

   The Authority’s decision insofar endorses the constructive failure of the Minister’s delegate to exercise the jurisdiction conferred under Migration Act 1958 (Cth).

   Particulars

   a. The Authority noted that, although the applicant’s wife attended the delegate’s interview, she did so only in the capacity as a “support person and did not give evidence…” [14].

   b. The arrival interviews of the applicant and his wife were conducted separately.

   c. The applicants filed separate Statutory Declarations for their Safe Haven Enterprise Visa (SHEV) application.

   d. Although, the Authority acknowledged, at paragraph 14, that the applicant’s wife did provide a separate “SHEV statement”, it considered that the second applicant “did not make separate claims” [17].

   e. In the applicant’s wife’s Statutory Declaration, at CB 180, she states that she “will provide further information in relation to [her] claims for protection during any interview with any person considering [her] claim for protection”.

   f. In the same Statutory Declaration, the applicant’s wife refers to claims in her entry interview that she seeks to clarify.

   g. Several claims advanced by the applicant, as outlined in paragraph 18 of the Authority’s decision, related to incidents which solely concerned his wife. This includes:

   i. The TMVP breaking his wife’s hand and wounding her head on Provincial Council Election Day in 2008;

   ii. The TMVP attacking the wife on 20 July 2008; and

   iii. The TMVP pointing a gun to the wife’s head on 15 September 2012.

   h. The applicant was not present during any of the incidents outlined above.

   i. Although the Authority and the delegate accepted that the first two incidents occurred, in paragraphs 27 and 28, it did not accept that the applicant’s wife was threatened by the TMVP in September 2012 [33]. This reflected the findings of the delegate.

   j. The delegate noted that the applicant “made vague comments about living alone and referred to the incidents involving his wife” [CB 331]/

   k. The delegate also noted, at CB 331, that “the [first] applicant was not present when his wife was assaulted and I do not consider that testimony to hold any weight.”

   l. On this basis, it is submitted that the delegate erred by failing to inquire of the wife as to the events where she was an alleged victim. The error in the IAA decision is that the second applicant’s claims are rejected without the delegate inquiring of the wife as to those events. This is particularly relevant to the alleged incident concerning the wife in September 2012.

2. Mr Hodges on behalf of the applicant confirmed that ground 7 was abandoned.

Ground 6

1. In relation to ground 6, Mr Hodges submitted that the delegate had denied the applicant procedural fairness by failing to ask the wife questions about the incidents involving the TMVP in 2012. Mr Hodges in that regard drew attention to the fact that the Authority was aware that the applicant’s wife was present at the interview and that she was a support person and did not give evidence or make separate claims.

2. Mr Hodges focused on the fact that both the applicant and his wife had referred to an incident occurring in 2012. Mr Hodges submitted that it was consistent and submitted that the delegate should have given the applicant the benefit of his wife being questioned at that interview or before the delegate concluded its determination about the events involving the TMVP in which the applicant’s wife was an alleged victim. Mr Hodges submitted that by reason of the procedural impairments of the approach by the delegate there had been a constructive failure by the Authority in the exercise of its jurisdiction by failing to invite the applicant to give further information or attend an interview in relation to the 2012 incident.

3. The difficulty which Mr Hodges’ submissions face is that the delegate made an express finding of which the applicant was on notice rejecting the assertion that the TMVP attacked his wife or family in 2012. That was a finding in respect of which the applicant had the opportunity to provide submissions and new information as a result of the letter dated 3 November 2017.

4. A statement was put on by the wife and, as Mr Hodges acknowledges, did not address the 2012 incident. The Court has taken into account the nature and scope of the provisions of Part 7AA of the Act and the power under s473DC of the Act. The Court has given careful attention to the quality of the reasons as summarised above. In circumstances where the statement of the wife did not address the 2012 incident and where no request was made to the Authority to exercise any power under s 473DC of the Act, the Authority’s failure to consider the exercise or to exercise any such power cannot be said to lack an evident and intelligible justification. This is because it is apparent that the Authority gave the applicant the opportunity to put on new information and submissions, as well as the fact that the Authority took into account the wife’s statutory declaration.

5. In circumstances where the delegate had made an adverse finding and where the applicant had been given an opportunity to put on new information and submissions and the new information did not address further the 2012 incident, it cannot be said that the Authority’s failure to consider to exercise or to exercise the power under s 473DC of the Act was legally unreasonable. There was no constructive failure as alleged in ground 6. No jurisdictional error as alleged in ground 6 is made out.

Conclusion

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

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  9 August 2018