FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FUO17 v Minister for Home Affairs [2024] FedCFamC2G 483
File number: MLG 2879 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 31 May 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise Visa (subclass 790) – consideration of whether the Authority failed to consider a relevant consideration – whether the Authority erred in its statutory task under ss 473DC or 473DD of the Migration Act 1958 (Cth) – Authority not obliged to request or seek further information – whether the Authority acted illogically or irrationally – application seeking impermissible merits review by the court – findings made reasonably open to the Authority on the material before it Legislation: Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(b), 36(2), 473DC and 473DD Cases cited: AMT15 v Minister for Immigration and Border Protection [2018] FCA 366
DUZ17 v Minister for Home Affairs [2019] FCA 1593
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Immigration and Citizenship v Li [2013] HCA 18
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 152 Date of last submission/s: 15 February 2024 Date of hearing: 15 February 2024 Place: Melbourne Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Vrachnas & Co Lawyers Counsel for the First Respondent: Ms K Chan Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 2879 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FUO17
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
31 MAY 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’), by which the Authority affirmed a decision of a delegate of the First Respondent (‘Minister’) to refuse the applicant a Safe Haven Enterprise (Subclass 790) visa (‘SHEV’).
BACKGROUND
The following background is largely…
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Details
- Case
- [2024] FedCFamC2G 483
- Decision Date
CaseChat Overview and Summary
The case of FUO17 v Minister for Home Affairs involved an application for judicial review of a decision made by the Immigration Assessment Authority to affirm the Minister's decision to refuse the applicant a Safe Haven Enterprise Visa. The applicant, a Tamil Hindu from Northern Sri Lanka, claimed he faced serious harm if returned to Sri Lanka due to his ethnicity, alleged connections to the LTTE, and past detentions and torture. The Authority considered the applicant's claims but found inconsistencies and exaggerations in his evidence, leading to the refusal of the visa.
The legal issues before the court were whether the Authority failed to consider relevant matters, erred in its statutory task, acted illogically or irrationally, and whether the applicant's application for judicial review was an impermissible merits review. The court needed to determine if the Authority's findings were reasonably open on the material before it.
The court found that the Authority did not fail to consider relevant matters or err in its statutory task. The Authority was not obliged to request or seek further information, and its decision-making process was logical and rational. The court held that the Authority's findings were reasonably open based on the evidence presented. Therefore, the application for judicial review was an impermissible merits review.
In conclusion, the court dismissed the application for judicial review. The Authority's decision to affirm the Minister's refusal of the Safe Haven Enterprise Visa was upheld, as the findings made by the Authority were reasonably open on the material before it.
The legal issues before the court were whether the Authority failed to consider relevant matters, erred in its statutory task, acted illogically or irrationally, and whether the applicant's application for judicial review was an impermissible merits review. The court needed to determine if the Authority's findings were reasonably open on the material before it.
The court found that the Authority did not fail to consider relevant matters or err in its statutory task. The Authority was not obliged to request or seek further information, and its decision-making process was logical and rational. The court held that the Authority's findings were reasonably open based on the evidence presented. Therefore, the application for judicial review was an impermissible merits review.
In conclusion, the court dismissed the application for judicial review. The Authority's decision to affirm the Minister's refusal of the Safe Haven Enterprise Visa was upheld, as the findings made by the Authority were reasonably open on the material before it.
Orders
Orders of the court
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Background
Background to the litigation
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’), by which the Authority affirmed a decision of a delegate of the First Respondent (‘Minister’) to refuse the applicant a Safe Haven Enterprise (Subclass 790) visa (‘SHEV’).BACKGROUND The following background is largely taken from the applicant’s written submissions, with which the Minister does not take issue. The applicant is a Tamil Hindu from the North of Sri Lanka. He was born in 1993. His father is a wealthy jeweller. During the civil war, the applicant and his family were displaced. He says that his family spent some time in a camp before returning home. The applicant further claimed that he did not spend time in the camp but rather stayed with a relative so that he could continue his studies. This claim was ultimately not accepted by the Authority. The applicant assisted his father in his jewellery business as his father could not read. The applicant claimed that his father’s business was next to an abandoned house which was used by the LTTE’s financial head, S. The applicant also claimed that his father, as a wealthy businessman, paid taxes to the LTTE. The Authority noted the applicant’s evidence during his interview that his family knew S, who often visited. The applicant claimed that in 2009 he was detained twice by the Sri Lankan forces about his supposed connection to S and the LTTE. The applicant also claimed that on the second occasion in which he was detained, he was tortured, his toenail was pulled out, he was hit with a rifle butt and, in an attempt to defend himself, his wrist was broken. On both occasions, the applicant claimed that his father arranged his release. In 2011 the applicant travelled (legally) to Malaysia where he spent some months and registered with the UNHCR. After his visa expired and on the advice of his father, the applicant returned to Sri Lanka on the understanding that the situation had improved, and he would be safe. The applicant claimed, however, that in 2012, he was again detained and interrogated. He also claims that he was beaten with a shock absorber and a hose filled with gravel. The applicant says that his father then made a complaint to the Human Rights Commission (‘HRC’), and in response a false criminal charge was brought against him. He says he went to court and was released although he was given a further date on which he was to return to court in respect of this charge. The applicant says that he was afraid and did not return to court as required. Rather he says that he stayed with friends for about three months and then arranged to leave Sri Lanka illegally by boat. The applicant arrived in Australia in October 2012 as an irregular maritime arrival.[1] [1] Court book at pages 13 and 68. Application for a SHEV on July 2016 On 1 July 2016, the applicant applied for a SHEV, assisted by a migration agent.[2] Annexed to the applicant’s SHEV application was a statement of the applicant, in which he set out his background and summarised his claims for protection.[3] [2] Court book at pages 48 to 84. [3] Court book at pages 88 to 93.
Evidence
Evidence Before The Court
In addition, it is important to have regard to the context in which the country information in the post hearing submission was provided. In a letter to the delegate, the applicant’s representative said:We refer to the interview conducted on 15 January 2017 and take this opportunity to provide further information in support of [the applicant’s] application. Our submission outlines our client’s claims for protection and demonstrates with reference to evidence provided, independent information and relevant law that they meet the criteria under s 36(2)1 (sic), and are a person to whom Australia owes protection obligations. We also rely on all previous oral and written evidence provided by of (sic) on behalf of our client.[34] (Emphasis added)[34] Court book at page 118. The submission then goes on to state that the applicant faces a real chance of harm if returned to Sri Lanka due to:(a)his ethnicity as a young Tamil male originating from a former LTTE-controlled area;(b)as a member of a wealthy Tamil family who has provided financial resources to the LTTE during the war;(c)his father’s participation in training by the LTTE; (d)his parents’ complaint to the HRC which has been seen as critical of the Sri Lankan government of mistreatment by the SLA;(e)due to his business being located close to the financial administrator of the LTTE named ‘S’ and frequent visits from ‘S’ to his family home; (f)the discovery of LTTE propaganda in the form of a picture of the LTTE leader during a raid by the SLA on his family’s property; (g)as a failed asylum seeker; and(h)as a person who is the subject of a court case which he says relates to a false charge against him. The applicant’s representative then goes on to say:We submit that as a result of the above reasons, [the applicant] faces a real risk of serious harm at the hands of the Sri Lankan Authorities, in the form of:•Harassment;•Arbitrary arrest and detention;•Torture;•Cruel, inhuman and degrading treatment or punishment; and•Death. Ground 1(a) cannot be maintained when the Authority’s reasons are read as a whole and fairly. It is clear from the detailed summary of the applicant’s claims at paragraph [5] of the decision record, that the Authority understood that the applicant was claiming to fear harm as a result of the the Sri Lankan authorities believing he and his family had links to the LTTE. It is also clear from the Authority’s findings that it accepted that the applicant lived in an LTTE controlled area when he was young. The Authority, however, did not accept that the applicant’s father had trained with the LTTE nor that he did so in place of the applicant (or indeed in place of one of his other sons). The Authority also accepted that the applicant’s father was a wealthy jeweller in Sri Lanka but did not accept that his father had been the subject of extortion as claimed. The Authority also accepted that the applicant had been in a camp with his parents in 2007 after the LTTE lost control of their area but did not accept the applicant’s claims that he had moved to live with his aunt so he could continue his studies, or that he was absent from photos from the camp adding to his interest to the Sri Lankan authorities.
Decision
Reasons for decision
The Authority’s decision of 1 December 2017 is set out at pages 180 to 197 of the court book. AUTHORITY’S DECISION The Authority accepted that the applicant was of Tamil ethnicity and that he was born in the Northern Province in Sri Lanka. It also accepted that his eldest brother is in Switzerland having sought asylum there and that two other brothers are in Batticaloa and have been there since they were young.[12] [12] Authority decision record dated 1 December 2017 at paragraph [6]. The Authority also accepted that the applicant’s father had sought asylum in France in 1995 but that this application was refused and the applicant’s father was sent back to Sri Lanka in 2001. The Authority also accepted that the applicant’s family moved to an LTTE controlled area when he was young.[13][13] Authority decision record dated 1 December 2017 at paragraph [6]. At paragraph [7], the Authority discussed the applicant’s claims that his father undertook LTTE training in place of one of his sons. After discussing the evidence given by the applicant about this, and for the reasons given, the Authority rejected this claim. At paragraph [8], the Authority accepted that the applicant’s father was a wealthy jeweller, although it noted that the applicant had not claimed to fear harm on this basis. Moreover, the Authority did not accept the applicant’s claims arising from alleged extortion incidents. The Authority accepted that the applicant and his family lived in a displacement camp in 2007 and remained there for about six months. It also accepted that ‘the applicant was possibly interviewed while in the camp as were others’. The Authority did not, however, accept that the applicant came to the attention of the authorities in Sri Lanka because, as claimed, he was not in photographic records and that his absence was due to him living with his aunt rather than with his parents in the camp to which the family had been moved.[14] [14] Authority decision record dated 1 December 2017 at paragraph [10]. At paragraph [11], the Authority deals with the applicant’s claims to fear harm due to his and his family’s association with an LTTE official, S. The Authority also noted that the applicant’s claims regarding S changed over time. Ultimately, the Authority concluded:… I consider it highly likely he has exaggerated his connection to [S] to strengthen his claim. I do not accept his family knew or were frequently visited by [S] or that the authorities suspected this or that they had LTTE-links at that time.[15] [15] Authority decision record dated 1 December 2017 at paragraph [11]. At paragraphs [12] to [13], the Authority considered the applicant’s claims about having been detained in 2009 and accepted that ‘he may have been briefly detained and questioned along with other young Tamil males, on suspicion of LTTE links’. At paragraph [14], the Authority then set out the applicant’s claims that the Sri Lankan authorities believed he had been giving money to the LTTE because of his work with his father’s business. The Authority did not accept this claim. At paragraph [15] the Authority again touched on the applicant’s evidence about his alleged detentions in 2009 and reiterated that it did not accept the applicant’s evidence, including that he had been detained and questioned because of his links to S. At paragraph [17] the Authority identified what it considered to be inconsistencies in the applicant’s claims that his father had paid to have him released and did not accept this claim.
Ratio Decidendi
Legal Principle Established
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