GSQ18 v Minister for Home Affairs

[2019] FCCA 935

FEDERAL CIRCUIT COURT OF AUSTRALIA

GSQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 935

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority complied with its statutory obligations – whether the Authority identified the relevant law – whether the adverse findings by the Authority were open to it – whether the Authority’s reasons lack an evident and intelligible justification – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: GSQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3617 of 2018

Judgment of: Judge Street

Hearing date: 9 April 2019

Date of Last Submission: 9 April 2019

Delivered at: Sydney

Delivered on: 9 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Burnett
Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 9 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3617 of 2018

GSQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

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 22 November 2018 affirming the decision of a 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 was found to be a Tamil from Vavuniya in the Northern Province of Sri Lanka. The applicant claimed that he left Sri Lanka in 1990 and travelled to India where he sought refuge until arriving in Australia as an unauthorised maritime arrival on 25 June 2013. The applicant’s date of birth and the time of his departure from Sri Lanka and his then departure from India to Australia are identified in the Authority’s reasons.

3. The applicant claimed to fear harm by reason of having a family who were members of the Liberation Tigers of Tamil Eelam (“LTTE”), by reason of the young age at which he left Sri Lanka, by reason of a dispute in 2012, and by reason of the data breach that occurred in 2014.

4. On 8 June 2018, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 14 June 2018, 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 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 that are expressly referred to in the Authority’s reasons.

6. The Authority in its reasons identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority referred to the submissions provided by the applicant’s representative on 5 July 2018 and 25 July 2018 and had regard to the same insofar as they engaged with the delegate’s reasons and in respect of the new information considered the same in accordance with the requirements of s 473DD of the Act.

7. On a fair reading of the Authority’s reasons as a whole, it is apparent that the Authority took into account the whole of the provisions of s 473DD of the Act in determining whether or not there were exceptional circumstances to justify considering the new information.

8. The Authority summarised the applicant’s claims. The Authority accepted that the applicant’s family fled to India in 1990 because of the war and threats. The Authority accepted that the applicant lived in India as a refugee since 1990 and had lived in a refugee camp before he came to Australia in 2013. The Authority was not satisfied the applicant had any involvement or activity in India that can be linked to the LTTE or separatism, or was generally considered by the Indian authorities as such a person.

9. The Authority referred to the applicant’s fear of harm by reason of being affected by the data breach in 2014. The Authority accepted that limited information may have possibly been accessed identifying the applicant as someone who may have sought asylum in Australia and was in immigration detention. The Authority found that the information disclosed did not reveal the applicant’s claims for protection.

10. The Authority summarised the relevant law. The Authority referred to the applicant having left Sri Lanka when he was six years old. The Authority accepted that familial links caused some issues for the applicant’s family in the time preceding their departure from Sri Lanka to India, nearly 30 years ago when the applicant was a young child. The Authority was not satisfied that these circumstances give rise to or contribute to a real chance of any harm for the applicant.

11. The Authority was not satisfied the applicant, if he were to return to Sri Lanka now or in the reasonably foreseeable future, faces a real chance of coming to the adverse attention of the Sri Lankan authorities, or faces a real chance of harm due to his being a Tamil originally from Northern Sri Lanka who had some tangential links to the LTTE dating back many years ago.

12. The Authority did not accept that the applicant’s profile, in conjunction with him being a returned Tamil asylum seeker would give rise to a real chance of serious harm or persecution.

13. The Authority was not satisfied the applicant’s name would be on a ‘stop’ or ‘watch’ list. The Authority was not satisfied the disclosure of the applicant’s personal information in Australia, his returning as a failed asylum seeker, any process on arrival and his being identified by the authorities would lead to a real chance of the applicant being of adverse interest to the Sri Lankan authorities. The Authority was not satisfied that there is a real chance that the applicant would be subject to mistreatment during process at the airport or any investigations on arrival in his circumstances would lead to a real chance of him being subject to harm.

14. The Authority was not satisfied that, if the applicant were returned to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he would be of adverse interest to the Sri Lankan authorities or face a real chance of being abducted, arrested, detained, interrogated, mistreated or otherwise harmed because of his Tamil ethnicity, his residence in a former LTTE-controlled area, his sex and age, his seeking asylum in Australia, his long period of residence in India and Australia, his having no family in Sri Lanka and/or his family connection.

15. The Authority referred to the applicant facing some difficulties on returning to Sri Lanka as an asylum seeker but was not satisfied it will be for a long period or lead to any other harm. The Authority took into account that the applicant possesses a birth certificate issued in 2011 for Sri Lanka. The Authority found it is unlikely the applicant would encounter any problems faced by those without documentation. The Authority also took into account the applicant’s resilience in securing continuous employment in India for 10 years. The Authority took into account the applicant’s ability to read and write Tamil and also, although not fluent, to read and write in English.

16. The Authority expressly referred to the applicant’s age and that he would be returning without family and after a long absence with a lack of knowledge about Sri Lanka. However, the Authority was not satisfied there is a real chance that his capacity to subsist will be threatened. The Authority was not satisfied there is a real chance the applicant will be homeless. The Authority accepted the applicant may face a low risk of societal or official discrimination due to his being a Tamil. However, the Authority was not satisfied that the treatment he may face on return as a Tamil returning asylum seeker who has spent most of his life outside Sri Lanka amounts to serious harm in the applicant’s circumstances.

17. The Authority accepted the applicant may be considered as having departed Sri Lanka illegally, although he was only six years old at the time. The Authority was satisfied that there is not a real chance the applicant will be subject to a custodial sentence for departing Sri Lanka illegally. The Authority was not satisfied there is a real chance the applicant would not be able to secure bail by either pleading guilty or on personal surety. The Authority referred to country information and found that the Immigrants and Emigrants Act (Sri Lanka) is not discriminatory on its face and is not enforced in a discriminatory manner.

18. The Authority was not satisfied that the questioning, temporary detention, imposition of a fine or any other costs associated with possible bail or the Court appearances if they arise and any other treatment he may experience as a result of illegal departure would constitute serious harm or persecution to the applicant.

19. The Authority was not satisfied the applicant faces a real chance of persecution for any of the reasons claimed if he were returned to Sri Lanka now or in the reasonably foreseeable future.

20. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

21. The Authority turned to the issue of complementary protection and was not satisfied that the treatment the applicant may face, along with the other challenges as a returning Tamil asylum seeker with his personal circumstances, amount to significant harm.

22. The Authority was not satisfied the applicant, if he were returned to Sri Lanka now or in the reasonably foreseeable future, faces a real risk of significant harm as a young Tamil male originally from Northern Sri Lanka, a failed asylum seeker who was subject to the data breach, his long residence abroad, his returning on his own and/or his family connections.

23. The Authority was not satisfied there are 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 will suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 24 December 2018. On 17 January 2019, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant complained that he had been the subject of a file being leaked. This was clearly a reference to the data breach of 2014 that was expressly considered by the Authority when the Authority gave reasons in support of the adverse finding that the applicant would not face a real chance of serious harm or significant harm by reason of the data breach. Those reasons referred to the limited information that had been disclosed and that that information did not include the applicant’s protection claims. The Authority’s finding in that regard was open to the Authority, for reasons given by the Authority and cannot be said to lack an evident and intelligible justification.

4. The applicant also claimed to fear harm by reason of having left Sri Lanka as a child aged 6 and that he would, in essence, be going back to Sri Lanka without any family. Those were matters expressly taken into consideration by the Authority, as summarised above, and the Authority’s adverse findings were open to the Authority for the reasons given by the Authority. The applicant’s submissions otherwise in respect of his effectively returning to Sri Lanka as a six year old child invite the Court to engage in merits review. This Court has no power to review the merits. Nor does the Court have power to determine the matter on discretionary or compassionate grounds. Nothing said by the applicant identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. Identifying wrong issue.

   2. Asking wrong questions.

   3. Ignoring relevant material.

   4. Incorrect interpretation and/or application to the facts applicable law.

2. In relation to ground 1, the generalised assertion of a wrong issue unparticularised is incapable of making out any relevant error. On the face of the Authority’s reasons, the Authority correctly identified the rule of law. On the face of the Authority’s reasons, the Authority had a real and meaningful engagement with the applicant’s claims and submissions and complied with its statutory obligations in the conduct of the review. No jurisdictional error is made out by ground 1.

3. In relation to ground 2, the generalised assertion of a wrong question is not, on its face, capable of making out any jurisdictional error. As identified above, on the face of the Authority’s reasons the Authority correctly identified the relevant law and made findings that were open to the Authority for the reasons given by the Authority. No jurisdictional error is made out by ground 2.

4. In relation to ground 3, the generalised assertion of ignoring relevant material is not, on its face, capable of making out a jurisdictional error. No relevant consideration has been identified that the Authority failed to take into account. To the extent that the applicant inferred having left India at the age of six and referred to having no family in India, both are matters that were clearly identified and considered by the Authority. Equally, to the extent that the applicant referred to a file being leaked, the data breach of 2014 was a matter taken into account by the Authority and, for reasons already given, the Authority rejected this as giving rise to a real chance of significant harm or serious harm. Those adverse findings by the Authority were open. No jurisdictional error is made out by ground 3.

5. In relation to ground 4, the assertion of an incorrect interpretation and/or application of the facts to the applicable law is, again, a bare assertion not capable of identifying any jurisdictional error. The Authority, as referred to above, correctly identified the relevant law. The Authority’s reasons attached to the same the applicable statutory provisions and the Authority’s reasons are consistent with the Authority correctly interpreting and applying the statutory provisions in the conduct of the review. There is no evidence of incorrect interpretation. No jurisdictional error is made out by ground 4.

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

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019