GAU18 v Minister for Home Affairs - [2019] FCCA 1603

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAU18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1603

Catchwords:
MIGRATION – Application for safe haven enterprise visa – country information – authority entitled to rely upon that information which it chooses to rely upon after having considered all of the claims before it and after having assessed relevant information – fears of applicant unfounded – application dismissed.

Legislation

Migration Act 1958 (Cth), ss.473CA, 473CB

Cases cited:

BZD17 v Minister for Immigration & Border Protection (2018) 161 ALD 441.

Tickner v Chapman (1995) 57 FCR 451.

Minister for Immigration v MZYTS (2013) 230 FCR 431.

SZOVB v Minister for Immigration (2011) 125 ALD 38.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

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

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

Applicant:

GAU18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 1213 of 2018

Judgment of:

Judge Egan

Hearing date:

28 May 2019

Date of Last Submission:

28 May 2019

Delivered at:

Brisbane

Delivered on:

12 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Fisher Dore Lawyers

Counsel for the Respondents:

Ms A. Wheatley

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application for review filed on 21 November 2018 be dismissed.
The Applicant pay the Respondents costs of and incidental the application fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1213 of 2018

GAU18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant was born in Jaffna, Sri Lanka, and is of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival at Cocos (Keeling) Islands in September 2012.
The applicant made an application for a Safe Haven Enterprise Visa (SHEV) on 2 March 2016.
A delegate of the Minister refused the application for the SHEV on 24 October 2016. The matter was then referred to the Immigration Assessment Authority (‘the Authority’) for review pursuant to the provisions of s 473CA of the Migration Act 1958 (Cth)(‘the Act’) on 31 October 2016.
On 14 June 2017, the Authority affirmed the delegate’s decision not to grant the applicant the SHEV.
On 3 August 2018, the Federal Circuit Court quashed the Authority’s decision.
On 26 October 2018, the Authority reviewed the delegate’s decision pursuant to the orders of the Federal Circuit Court and again affirmed the decision of the delegate.
On 21 November 2018, the applicant filed an application for review of the Authority’s second decision pursuant to the provisions of the Act.
At [2] of its reasons, the Authority confirmed that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s 473CB of the Act.
The applicant’s claims for protection were set out in [6] of the reasons of the Authority as follows:
·“He is a Catholic Tamil, born in Mandaitvu, Jaffna District.
·From 1990 his family were displaced and forced to move many times due to the civil conflict.
·In August 2006 he was wounded when his fishing boat was caught in a battle between the LTTE and the Sri Lankan Navy (the Navy). He sustained injuries to his foot resulting in scarring. He was hospitalised for about a month.
·When he travelled to Kurunahar, he was intercepted and questioned by the Army and handed over to the Criminal Investigation Department (CID). The CID interrogated and accused him of supporting the LTTE. He was detained for three months in a CID camp under the Prevention of Terrorism Act (PTA) and tortured. He was released in February 2007 as the CID did not have sufficient evidence to convict him.
·Around the same time a parish priest, Father JB, was abducted and killed by the Eelam People’s Democratic Party (EPDP). He knew Father JB personally and was supportive of his involvement in helping persecuted Catholics and those arrested by the Navy.
·He went to Qatar for work in November 2007 and returned to Sri Lanka after the war in August 2009.
·In 2010 he was elected president of the Saint Peter’s Youth Association and re-elected as president for both the Saint Peter’s Youth Association and Saint Peters Community Centre.
·In May 2011 he re-opened the local library and named it after Father JB. He was featured in the local newspaper. Following this, the EPDP detained him for two days and he was beaten. He was warned to inform the EPDP of all future activities which might glorify Father JB.
·In early 2011 during the local council election, he and his friend ‘A’, who was the secretary of the Youth Association, assembled a crowd including relatives of missing persons suspected to be the victims whose body were discovered by him and his friend 22 years earlier. They planned to address the Tamil National Alliance Party (TNA) representative requesting they investigate the matter. They were assaulted by the CID and EPDP and forced to agree to be EPDP’s polling agents.
·In April 2012, he and A erected a Saint Peter’s statue at an Army and Navy checkpoint in Mandaitvu. The Navy denied having given verbal consent after being opposed by the local community which was predominantly Hindu. The applicant and A published a notice in various local papers stating did not want to cause any communal friction and would take the statue down.
·A week later, he was walking home with other four fisherman who were also members of the Youth Association. They were stopped by the Navy at a checkpoint and their fishing passes were taken away. They were assaulted and released after a few hours. Following this incident he was too afraid to return to his job.
·Sometime in 2011 the CID detained his closest friend M who was the president of M’s local Youth Association under the suspicion of terrorism. M died in August 2012 as result of being severely beaten in jail. He coordinated the Youth Association to publish and distribute a death notice stating M was never a terrorist but someone who gave enlightenment to young people. He had given a speech at M’s funeral. When he returned home after M’s funeral, his father told him that the CID had visited and he was required to report to the CID.
·He was detained by the CID when he reported the next day. He was tortured and his national ID card was confiscated and released. He was warned not to be involved in these activities again and would need to attend the office whenever they called him.
·Following these incidents, he feared for his life and fled Sri Lanka by boat on 21 August 2012. Since arriving in Australia, the CID has visited his family home asking for his whereabouts. His father and brothers have left home due to the constant harassment.
·In February 2013, his friend A was arrested after the boat he was on heading to Australia was incepted by the Navy while other passengers were released. A was imprisoned for two years and released sometime in 2015. He heard from his family that while A was in jail he was tortured severely and questioned about the applicant.
·His aunt who had been living in Canada, disappeared after returning to Sri Lanka and her body was found in a Jaffna breach.
·He fears being harmed by the Sri Lankan authorities, including the Army, the Navy, the CID and the EPDP for reasons of his Tamil race, Catholic religion, imputed political opinion as supporter of the LTTE or anti-government, his being a young male Tamil from the North, his involvement in the Youth Association, his being a failed asylum seekers, his scar. He also fears harm from the Hindu community because his is a Catholic and he had erected a statute of Saint Peter.”
The applicant’s grounds for review were as set out on page three of the originating application as follows:
“1. The IAA failed to conduct a review pursuant to s. 473CC of the Migration Act, according to law.
Particulars
(a) Failure to consider review material that was before it, pursuant to s. 473DB of the Migration Act, to the effect that there is a continuing risk of harm to failed asylum seekers, and in particular;
(i) Military intelligence officials have been actively seeking Tamils returning to Sri Lanka in order to interrogate, torturing and to extort money.
(ii) Informers are still active in the Vanni
(iii) Young Tamil men forcibly returned to Sri Lanka have been tortured.
(iv) There is a deeply embedded culture of impunity within the security forces.
(v) The Siresena government is accused of making little progress on cases of corruption and abuse allegedly committed by the former government.”
The applicant asserted that the Authority was required to consider the statement of reasons of the delegate who refused the applicant’s SHEV application, as well as the applicant’s submissions which were referred by the applicant to the delegate before the making of the decision (See Fragomen submissions dated 27 July 2016 at CB 166). [1]
[1] Tickner v Chapman (1995) 57 FCR 451 at 462 and 495; Minister for Immigration v MZYTS (2013)
The applicant further asserted that a mere reference to the material before a decision maker, by such decision maker, does not satisfy the requirement that the decision maker must consider such material in a realistic and engaging manner. [2]
[2] SZOVB v Minister for Immigration (2011) 125 ALD 38 at [43].
The applicant complained that there had not been a realistic engagement by the Authority when considering the contents of the submissions.
It was submitted on behalf of the first respondent that the Authority had actively engaged in a consideration of all relevant issues as countenanced by the phrase “an active intellectual engagement” as referred to in BZD17 v Minister for Immigration & Border Protection (2018) 161 ALD 441 at [35] – [36] per Perram, Perry & O’Callaghan JJ. At [38] in that case it was said:
“[38] Equally, the authorities have emphasised the need for caution in determining whether there has been a proper, genuine, or realistic consideration: see eg Minister for Immigration and Border Protection v SZJSS (2010) 243 CLR 164; 273 ALR 122; 119 ALD 446; [2010] HCA 48 at [34]–[36] (the Court); Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426; 192 ALR 256; 65 ALD 346; [2001] FCA 274 at [60]–[64] (the Court); Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171 at [76] (Basten JA). Notwithstanding that concern, the formulation of a proper, genuine and realistic consideration “nevertheless remains a useful touchstone to ensure that consideration given to a particular matter is such consideration as is required by law”: Islam v Cash at [14] (Flick J).”
As to the submission made on behalf of the applicant that the Authority only briefly addressed relevant parts of the submissions made on behalf of the applicant at [29] and [40] of its reasons, the first respondent submitted that such submissions did not accurately portray the manner in which the Authority considered those and other relevant submissions made on behalf of the applicant. It submitted that:
a)At [4] of its reasons, the Authority specifically referred to the post-interview submissions provided by the applicant’s representative which also contained a large amount of country information.
b)At [10] of its reasons, the Authority referred to the post-interview submission made on behalf of the applicant relating to the alleged circumstances of his payment of a bribe to ensure the applicant would be able to depart Sri Lanka.
c)At [11] of its reasons, the Authority referred to the contents of a news article provided by the applicant in support of his claims.
d)At [24] of its reasons, the Authority recorded that it had had regard to country information before it referred to in the post-interview submission. In doing so, the Authority was referring to the contents of paragraphs 37 – 42 inclusive of the Fragomen submissions (See CB 173 – 176 inclusive under the heading “Failed Asylum Seekers”).
e)At [31] of its reasons, the Authority specifically referred to the post-interview submission which made reference to a SBS report of January 2014. [3] That SBS report dealt with, and referred to, the issue of scarring and perceived LTTE involvement associated therewith. The applicant had not dealt with those issues in his earlier interviews but, once raised in the post-SHEV interview submission, the Authority dealt with the applicant’s claims in a reasoned manner, finding that the chance that the authorities would perceive the applicant to have had involvement with the LTTE because of his scarring was remote.
f)At [41] of its reasons, the Authority dealt with the fact that country information dealt with the issue of the continuing monitoring of public gatherings in the new north, the Authority finding that it was not satisfied that the applicant faced a real chance of harm because of his Catholic religion and activities.
g)At [42] of its reasons, the Authority dealt with the applicant’s Fragomen submissions concerning Sinhalisation in the north and east of the country, noting that the applicant’s evidence was that the majority of people living in his home area were Tamil Hindus. The Authority was not satisfied that the applicant faced a real chance of harm for that reason.
[3] See pp 183-184 of Court Book
In the light of the Authority’s consideration of the applicant’s further submissions as referred to above, as well as the Authority’s conceded references to the applicant’s further submissions in paragraphs [29] and [40] of its reasons, the submission made on behalf of the applicant that the Authority failed to properly consider such submissions is without merit. The Authority had properly engaged in a consideration of the submissions as made in a cogent, logical and reasoned way.
On the question of whether the Authority had preferred the content of DFAT country information over other information when arriving at its findings, even if the Authority had so preferred country information provided by DFAT over other sources, the Authority was quite entitled to do so. DFAT is an acknowledged source for information gathering and reporting. The Authority was entitled to balance up what competing information it had been referred to, as well as the source and reliability of much of the quoted “information”. It was noted by this court that much of the source information contained in the Fragomen submission was not authenticated. The Authority was entitled to favour DFAT country information over other unattributed hearsay contained in such information, and it was equally entitled to place little weight upon information which, for example, purported to portray as factual something which was said to constitute “testimony”, when such “testimony” was actually an account obtained from “a security force insider …”, unidentified as they were, or from some other unauthenticated source. [4]
[4] Para [37] – [65] of Fragomen submissions – CB 173 – 183.
The Authority was also not required to detail with minuscule particularity each part of the evidence before it prior to arriving at its decision. [5]
[5] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236
The findings made by the Authority were open on the material before it.
It has not been established that the Authority failed to make an obvious inquiry about a critical fact. As was said by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [6]:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
[6] (2009) 259 ALR 429 at [25] – [27] inclusive.
It cannot be said that no other rational or logical decision maker could not have made the same decision. 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.”

Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ 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.”
The applicant has failed to establish that the Authority fell into jurisdictional error.
The application for review is without merit and is dismissed.

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

Date: 12 June 2019

230 FCR 431 at [38]. FCR 593 at [46].