Fmo17 v Minister for Immigration

[2018] FCCA 3501

FEDERAL CIRCUIT COURT OF AUSTRALIA

FMO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3501

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority took into account an irrelevant consideration – whether the Authority applied the wrong test – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: FMO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 697 of 2017

Judgment of: Judge Street

Hearing date: 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Perth

Delivered on: 28 November 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Ladhams
Australian Government Solicitor

ORDERS

1. The application is dismissed.

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

DATE OF ORDER: 28 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 697 of 2017

FMO17

Applicant

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

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 19 March 2013 as an unauthorised maritime arrival. The applicant was found to be a Sinhalese from Anuradhapura.

3. The applicant claimed to fear harm by reason of being implicated as a people smuggler and being suspected of having organised illegal departures. The applicant also claimed that his family home was searched on two occasions and fears harm from his father’s political opponents and from the authorities.

4. On 14 February 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 27 July 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached factsheet and Practice Direction giving the applicant to put on new information and submissions.

6. The Authority in its reasons identified the background to the application for review. The Authority had regard to the material provided by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims and set out the relevant law.

7. The Authority accepted the applicant’s father supported the United National Party (“UNP”) and was politically active. The Authority was not convinced the applicant’s father had a profile that would attract threats or attacks from political opponents or resulted in the attack on the applicant in December 2012. The Authority placed significant weight on the evidence that the applicant was not aware of any previous incidents or attacks or threats from the father’s political opponents prior to 2012 and that there is no indication the father came to harm. The Authority took into account a reference to threats in the police report by the applicant’s father in November 2012. The Authority found there was no indication of any further harm to the applicant’s father after the claimed incidents in 2012.

8. The Authority took into account that the applicant’s father was a UNP supporter for an extended period without coming to harm and that there was no indication he has come to any harm after the claimed incidents in 2012. The Authority was not satisfied the applicant’s father was threatened by political opponents. The Authority did not accept the political opponents of the applicant’s father threatened him or the applicant. The Authority did not accept the applicant’s father had a political profile that attracted adverse attention from opponents and was not convinced the applicant was attacked in December 2012 because his father was an active UNP supporter.

9. The Authority did not accept the applicant has experienced harm in the past because of his father’s activities, or that he would experience harm on return to Sri Lanka. The Authority was not satisfied there was a real chance the applicant would face serious harm from his father’s political opponents on return to Sri Lanka.

10. The Authority accepted the applicant departed Sri Lanka illegally. The Authority accepted the applicant may be charged under the Immigrants & Emigrants Act 1949 (Sri Lanka) and that there was a chance he may be held in detention for a period. The Authority found the period of detention does not rise to a level of a threat to his life or liberty, or to significant physical harassment or ill treatment or any other form of serious harm for the applicant. The Authority was not satisfied the applicant faces a real chance of persecution by the Sri Lankan authorities due to his illegal departure from Sri Lanka. The Authority was not satisfied the applicant faced a real chance of persecution by the Sri Lankan authorities as a result of being a failed asylum seeker.

11. The Authority accepted as plausible that the authorities visited the applicant’s home in 2013 and 2016 as part of an investigation in relation to his illegal departure from Sri Lanka. The Authority had regard to country information and accepted that the applicant may be investigated to determine whether he has committed any offence subject to the Immigrants & Emigrants Act 1949 (Sri Lanka).

12. The Authority placed weight on the face that the applicant is from a Sinhalese majority and that reports of abuse of detainees by the police and other security authorities relate in the main to minority Tamils. The Authority found that after the Authority visited the applicant’s home in 2013 and 2016, there was no indication they mistreated or harmed or threatened the applicant’s family in any way. The Authority was not satisfied there is a real chance the applicant would be tortured or otherwise mistreated by the authorities on return to Sri Lanka or during in any investigation into people smuggling.

13. The Authority did not consider the poor prison conditions or period of detention to which the applicant may be subject are applied discriminatorily. The Authority found the treatment the applicant may face as a consequence of the application of the Immigrants & Emigrants Act 1949 (Sri Lanka) is not persecution within the meaning of the Act.

14. The Authority was not satisfied the applicant would not be able to present his case to the relevant authorities. The Authority found on country information that the process and the treatment to which the applicant would be subject under the Immigrants & Emigrants Act 1949 (Sri Lanka) is not discriminatory and is not applied in a discriminatory manner and is a law of general application. The Authority found the treatment the applicant would face is a consequence of possible charges or prosecution of crimes under the Immigrants & Emigrants Act 1949 (Sri Lanka) is not persecution within the meaning of the Act.

15. The Authority was satisfied there was not a real chance the applicant would be harmed in Sri Lanka because of his father’s political activities, his illegal departure from Sri Lanka and his asylum claim, or on the basis of being implicated in a people smuggling operation. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria in s 36(2)(a) of the Act.

16. The Authority turned to the issue of complementary protection and addressed the statutory meaning of the definition of significant harm in s 36(2A) of the Act. The Authority took into account the findings made in relation to the Convention and was satisfied that there is not a real risk that the applicant would suffer significant harm.

17. The Authority made express reference to the investigation or prosecution and subsequent punishment for contravention under the Immigrants & Emigrants Act 1949 (Sri Lanka), including possible people smuggling offences and referred to the same being as a result of a law of general application that would not amount to persecution. The Authority found that it was not satisfied the applicant would face a real risk of significant harm as a result of being implicated as a people smuggler.

18. The Authority was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criterion under s 36(2)(aa) of the Act and affirmed the decision under review.

19. These proceedings were commenced on 14 December 2017. On 31 January 2018, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. The applicant did put on a further affidavit dated 30 October 2018.

20. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court. From the bar table, the applicant referred to his fear of socialising and what had occurred with his father. The applicant maintained that he had been truthful in the information he provided in support of his protection visa.

    The applicant’s submissions from the bar table were in substance, to invite this Court to engage in merits review. The Tribunal addressed the applicant’s claims concerning his father and made adverse findings as summarised above. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   The Immigration Assessment Authority (IAA) decision, made on 15 November 2017, to affirm the Minister’s delegate’s refusal of the protection visa was vitiated by jurisdictional error in that:

   Ground 1

   IAA in determining that the applicant was not a person who was at a real risk of significant harm pursuant to section 36(2A) of the Migration Act 1958 (Act) took into account an irrelevant consideration, namely that the charges laid or prosecution would be the result of a law of general application.

   Ground 2

   Further or alternatively, the IAA applied the wrong test in determining whether section 36(2A) of the Act was made out in the present case, by impermissibly shifting the enquiry to whether or not the law of general application applied to the applicant before making a finding as to whether the applicant satisfied section 36(2A) of the Act.

Ground 1

1. In relation to ground 1, it was open to the Authority to take into account its previous findings in relation to the applicant’s claims under the Refugees Convention in considering whether or not the applicant faced a real risk of significant harm. The Authority’s reference to the Immigrants & Emigrants Act 1949 (Sri Lanka) being a law of general application, in the context of considering complementary protection. The investigation, prosecution and subsequent punishment that the applicant may be exposed to for contravention of the Immigrants & Emigrants Act 1949 (Sri Lanka) cannot be said to be an irrelevant consideration. It was appropriate for the Authority to take into account that investigation, prosecution and punishment process in considering whether there was a real risk of the applicant facing significant harm. The proposition that the Authority took into account an irrelevant consideration is without substance. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, on the face of the Authority’s reasons, the Authority correctly identified the relevant law. On the face of the Authority’s reasons, the Authority did not determine whether or not the applicant met the criteria in respect of complementary protection merely by determining whether or not the Immigrants & Emigrants Act 1949 (Sri Lanka) was a law of general application. The Authority’s reasons as summarised above reflect a real and genuine consideration of the applicant’s circumstances. The Authority on the face of its reasons correctly applied the relevant law as to whether or not the applicant met the criteria for complementary protection. Accordingly, no jurisdictional error is made out by ground 2.

Applicant’s Affidavit filed 30 October 2018

1. The applicant’s affidavit dated 30 October provides four paragraphs which are as follows:

   1. I am the Applicant in case FMO17 applicant v Minister for Immigration and Border Protection First Respondent, Immigration Assessment Authority Second Respondent.

   2. I seek remedy by the way of a writ of meandrous on the basis of a jurisdictional error by the Second Respondent who failed his duty by not examining in a proper manner the evidence produced.

   3. The Second Respondent failed to examine the country situation in Sri Lanka and the documents produced by me under the normal rules of evidence.

   4. Specific reference is made to the following paragraphs of the decision handed down by the Second Respondent with regard to my application for a Protection Visa under the Migration Act 1978: 8, 9, 10, 11, 13, 14, 15, 16, 17, 20, 21, 22, 24 and 29.

2. Paragraph 2 of the applicant’s affidavit asserts that the Authority failed to carry out its duty in a proper manner in examining the evidence. The Authority’s reasons reflect an orthodox approach to the determination of the review in accordance with a statutory regime under Part 7AA. The Authority’s reasons make express reference to taking into account the material given by the Secretary under s 473CB of the Act and on the face of the Authority’s reasons, make reference to the submissions in material provided by the applicant in support of his claims.

3. On the face of the Authority’s reasons, there was a real and genuine engagement by the Authority in respect of the applicant’s claims and evidence and the adverse findings made were dispositive of the applicant’s claims. The dispositive findings were open on the material before the Authority for the reasons given by the Authority as summarised above. On the face of the material before the Court, the Authority complied with its statutory duty in the conduct of the review. No jurisdictional error arises by reason of the matters referred to in paragraph 2 of the applicant’s affidavit.

4. In relation to paragraph 3, it is apparent that the Authority did take into account country information and it was a matter for the Authority what country information it accepted and what weight to give that country information. No jurisdictional error is made out by paragraph 3 of the affidavit.

5. Insofar as paragraph 4 identifies particular paragraphs of the Authority’s reasons, this appears to reflect a disagreement with the adverse findings and does not identify any basis upon which it could be said that the Authority’s conduct of the review exceeded its statutory power. Further, the adverse findings made by the Authority cannot be said to lack an evident and intelligible justification for the reasons summarised above. No jurisdictional error is made out by anything identified in paragraph 4 of the applicant’s affidavit filed on 30 October 2018.

6. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  1 February 2019