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Federal Circuit Court of Australia |
Last Updated: 17 May 2022
FEDERAL CIRCUIT COURT OF AUSTRALIA
ESY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2624
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File number(s):
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SYG 3127 of 2019
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Judgment of:
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JUDGE STREET
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Date of judgment:
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Catchwords:
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MIGRATION – Immigration Assessment
Authority – application for a Safe Haven Enterprise Visa – where the
matter was adjourned part
heard – application in a case for a further
adjournment – application for adjournment dismissed – whether the
Authority
failed to invite the applicant to submit new information –
whether the Authority had a genuine intellectual engagement with
the applicant's
claims and evidence –no arguable case for relief claimed- amended
application dismissed under r 44.12 of the
Federal Circuit Court Rules 2001
(Cth)
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Legislation:
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Federal Circuit Court Rules 2001 (Cth) r 44.12
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Number of paragraphs:
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Solicitor for the Applicant:
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The Applicant appeared in person
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Solicitor for the First Respondent:
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Ms K Evans
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ORDERS
THE COURT ORDERS THAT:
1. The application in a case for an adjournment is dismissed.
2. The amended application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
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”), made under pt 7AA of the Act on 28 October 2019, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Safe Haven Enterprise Visa (“the Visa”).
Background
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 as an unauthorised maritime arrival on 28 September 2012.
3 The applicant claimed to fear harm because, in 2006, while working as a minibus driver, he was harassed by the Sri Lankan Army (“SLA”) and the Central Investigation Department (“CID”), and was accused of having links with the Liberation Tigers of Tamil Eelam (“LTTE”).
4 The applicant alleged that, in September 2006, SLA officers came to his house, took him away to a camp, and that he was tortured. The applicant alleged that he was released but required to report on a daily basis. The applicant alleged that he witnessed the execution of a boy and then went into hiding.
5 The applicant alleged that he came out of hiding and began working as baker in June 2008. The applicant alleged that his mother was killed in an SLA bombing, and that he fled to India at the end of 2008. The applicant alleged that his wife was made to report to the camp and that she was sexually harassed.
6 The applicant returned to Sri Lanka in late 2009/2010, and alleged the CID came to his house and asked him to attend the camp. The applicant alleged that he was questioned about links to the LTTE, and was required to report to the camp once a month.
7 The applicant left Sri Lanka and went to India for three months, and then returned to Sri Lanka in August 2011. The applicant alleged that, after his return from India, he became a truck driver, and was harassed at checkpoints by the SLA. The applicant alleged that he was taken to a camp and detained for four days and accused of being an LTTE supporter. The applicant also claimed that, as a result of trauma he suffered, he had difficulty recalling events.
8 On 8 September 2016, the delegate found that the applicant failed to meet the criteria for the granting of the Visa.
Before the Authority
9 On 14 September 2016, a differently constituted Authority wrote to the applicant, giving him an opportunity to put on submissions and new information. On 3 October 2016, the applicant did put on submissions and new information. On 11 November 2016, a differently constituted Authority affirmed the decision. However, that decision was set aside on 2 September 2019.
10 On 11 September 2019, the presently constituted Authority wrote to the applicant, explaining that the application for review had been remitted to the Authority, to be differently constituted for reconsideration.
11 On 28 October 2019, in its reasons, the presently constituted Authority 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 identified the submissions and had regard to the same, so far as it engaged with the delegate's decision. The Authority identified new information, and found that there were not exceptional circumstances to justify considering the same. The Authority's reasons reflect taking into account the whole of the provisions of s 473DD of the Act in respect of the new information.
12 The Authority also made reference to the applicant's submissions, in which the applicant identified that he was aware that the Authority does not conduct interviews. The submission was advanced that:
Should the IAA review officer conclude that an interview is necessary, then I will attend the interview.
13 The Authority referred to that submission, and did not consider that there was a need to interview the applicant.
14 The Authority also took into account new country information. The Authority had identified credibility concerns in relation to the applicant's claims, and did not accept that the applicant worked as a bus driver, and was detained and tortured by the authorities in 2006.
15 The Authority noted that the delegate did not accept that the applicant's wife was assaulted and sexually harassed by authorities while the applicant was in India. The delegate did not accept that the applicant was assaulted and tortured in 2009 after he returned from India. The delegate did not accept that the applicant was taken to an SLA camp and beaten in 2011.
16 The applicant was identified as being of Tamil ethnicity and a Hindu born in a particular location in the Northern Province. The Authority summarised the applicant's claims and identified the relevant law including, in an annexure, applicable law incorporated by pagination.
17 The Authority referred to the psychological material that was provided in relation to the applicant, and was not satisfied that the applicant was experiencing ongoing mental health conditions. The Authority did, however, take into account the mental health condition asserted in the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) and other reports in consideration of the applicant's claims and evidence. The Authority accepted that the applicant has scarring on his legs, but did not accept that he is suffering ongoing mental health conditions.
18 The Authority identified credibility concerns in relation to the applicant's claims, including his failure to mention certain matters in relation to alleged transporting of LTTE cadres. The Authority also identified the conflict with the applicant's alleged history with his work in Qatar between 2007 and 2008 at a time he alleged he was in hiding. The Authority found that the applicant's claimed events of going into hiding were fabricated. The Authority referred to the applicant's inconsistent and changing nature of his evidence.
19 The Authority referred to the applicant describing himself as a cleaner on a bus, and that it was misleading for him now to assert that he was mainly a driver. The Authority referred to inconsistent evidence given by the applicant in relation to his having stopped driving a minibus in 2007.
20 The Authority referred to the applicant leaving and re-entering Sri Lanka three times before and after the war, being six times in total, and that the applicant did not claim to face any problems at the airport on those six occasions. The Authority also referred to the applicant's ability to depart Sri Lanka subsequent to 2007 and return in 2008, and found that the applicant's ability to obtain a passport in 2011 and being allowed to leave the country undermines his claim that he was detained and released, and the subject of reporting conditions.
21 The Authority also took into account that the applicant had not suffered problems in India, and that his family refused to go with him to India. The Authority found that this undermined the applicant’s claim that his wife was physically and sexually harassed while he was away.
22 The Authority identified other problems in relation to the applicant's history and what he disclosed at his entry interview. The Authority also referred to a new claim in relation to the applicant's alleged activity when he was 15 years old, and was not satisfied that the applicant would not remember those events, if he had undertaken that work. The Authority referred to the applicant's claims that he could not remember due to torture, and accepted that the applicant may have some difficulty in recalling completely accurate accounts of past events, but was not satisfied that the psychological reports addressed the applicant's deficiencies in the that information he provided.
23 The Authority referred to having listened to the Visa interview, and that the applicant appeared to engage well and was responsive, and that the applicant was able to provide considerable details on matters such as his identity documents. The Authority found that the applicant had deliberately provided false and misleading information as to his circumstances, and did not accept that the applicant worked as a bus driver or conductor in Sri Lanka, and did not accept that he engaged in a fish transporting business after he returned from India a second time.
24 The Authority did not accept that the applicant worked for the LTTE or supported the LTTE in any capacity, given the applicant's ability to enter and exit Sri Lanka. The Authority found that the applicant had no profile of concern to the authorities, and did not accept that he had come to the adverse attention of the Sri Lankan authorities before he left to come to Australia. The Authority did not accept that the applicant was ever detained, arrested, questioned, tortured or required to report to Sri Lankan authorities.
25 The Authority did not accept the applicant's claims concerning his wife. The Authority did not accept that the applicant's family faced any problems from authorities or anyone else in Sri Lanka.
26 The Authority was not satisfied that the applicant faced a real chance of harm from Sri Lankan authorities, or any group or anyone as a Tamil male from the Northern Province, now or in the reasonably foreseeable future. The Authority was not satisfied that the applicant faces a real chance of persecution as a returning Tamil asylum seeker from Australia who departed Sri Lanka illegally.
27 The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Act, and affirmed the decision of the delegate under review.
28 These proceedings were commenced on 29 November 2019. On 23 January 2020, this Court made orders fixing the matter for a show cause hearing on 3 September 2020. The Court also made orders, giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.
The Grounds
29 On 28 February 2020, the applicant did file a further affidavit and an amended application, the grounds on which are as follows:
Ground 1
1. The second respondent’s exercise of discretion not to invite the applicant to give new information under section 473DC(3) of the Act was legally unreasonable.
Ground 2
2. Further or in the alternative, the second respondent asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.
Particulars
The applicant claimed to have modified his conduct in the past due to fear of harm.
The second respondent failed to consider or make findings as to whether the modification of conduct:
- was due to well-founded fear of harm; or
- was reasonable and did not conflict with, or require the applicant to conceal or alter, a protected belief or characteristic.
30 At the commencement of the hearing on 3 September 2020, the Court explained to the applicant the nature of the show cause hearing, and the applicant confirmed that he understood the nature of the show cause hearing as explained by the Court. The Court commenced the hearing, and the applicant asserted that he had not been served with the court book or submissions.
31 The Court accepted into evidence correspondence serving the court book and the submissions which were marked Exhibits A and B. However, the Court did grant the applicant a short adjournment until 17 September 2020, adjourning the show cause hearing part heard.
The Application in a Case
32 On 16 September 2020, the applicant filed an application in a case, seeking an adjournment of the proceedings. The applicant acknowledged receipt of the court book within the timeframe made by the orders but said:
Lawyer can't see me until 3 October 2020.
33 No evidence was put on identifying the lawyer that the applicant had contacted, or what steps the applicant had taken to obtain any other lawyer. The applicant asserted that he had made payments to the lawyer, but no address for service has been filed on behalf of the applicant by any legal practitioner, nor has any evidence been put on in support of the applicant's assertions of having made payments to different lawyers. The applicant maintained that he wanted an adjournment so that he could obtain someone to represent him.
34 Given that the proceedings were commenced on 29 November 2019, the applicant has had ample time to obtain a legal practitioner, if he was able to do so. The Court accepts the first respondent's submission that an adjournment would be of little or no utility, and that there is no evidence to support that the applicant will be able to obtain representation, and the applicant merely referred to a lawyer seeing him on 3 October 2020. The first respondent opposed the adjournment. The Court is satisfied that the applicant has had ample opportunity since the commencement of the proceedings to obtain representation, if he was able to do so.
35 The Court has also taken into account that the applicant obtained the benefit of an indulgence of a further adjournment until today as a result of disputing the receipt of the court book and submissions that were correctly served, according to the evidence, on the applicant's identified address. Nothing said by the applicant satisfied the Court that the applicant is likely to obtain legal representation if the matter is adjourned. The Court finds that the applicant has had a fair opportunity to obtain representation, if he was able to do so.
36 The Court has also taken into account the want of substantive merit in respect of the application for relief. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice, and it is for these reasons that the application in a case for an adjournment was dismissed.
Ground 1
37 Beyond inviting the Court to engage in merits review, the applicant advanced no submissions identifying any reason why there was an arguable case or relevant error by the Authority.
38 Given the adverse credibility findings by the delegate, the limited request for an interview in the applicant's submissions, and the opportunity that the applicant had had to put on new information and submissions, the Authority’s decision that there was no need to interview the applicant cannot be said to lack an evident and intelligible justification. No arguable case or legal unreasonableness is made out in relation to Ground 1.
Ground 2
39 In relation to Ground 2, there is no conduct that has been identified that was the subject of a finding that the applicant had to modify the same. Given the adverse credibility findings by the Authority in respect of the applicant's claims, no arguable case of relevant error is disclosed by Ground 2.
40 The Authority correctly identified the relevant law, and had a genuine intellectual engagement with the applicant's claims and evidence. The adverse credibility findings were open for the reasons given by the Authority as summarised above. There was no modification conduct in the circumstances of the present case, the subject of findings by the Authority, to give rise to an arguable case of relevant error as raised in Ground 2.
41 The issue as to whether the applicant could reasonably modify his behaviour, under s 5J(3) of the Act, did not arise for consideration on the findings made by the Authority. No arguable case of relevant error is made out by Ground 2.
The Court is not satisfied that the amended application has raised an arguable case for the relief claimed. The Court is satisfied this is an appropriate matter in which to exercise the court's powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) to dismiss the application.
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I certify that the preceding forty-one (41) paragraphs are a true copy
of the settled transcript of the published oral reasons for
judgment of
Judge Street delivered in open Court on 17 September 2020 and the
parties were sent a sealed copy of the Court’s
orders.
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Associate:
Dated: 13 May 2022
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