COA16 v Minister for Immigration & Anor [2017] FCCA 838

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 16 August 2016, affirming the decision of the delegate not to grant the applicant a protection visa.
2. The applicant was found to be a national of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 26 August 2012 as an unauthorised maritime arrival. The applicant was found to be a Tamil and of Catholic faith from a particular district in Sri Lanka.

1. The applicant alleged that he had suffered discrimination due to his ethnicity. The applicant also alleged that, as a fisherman, the Sri Lankan Army and Navy had only permitted him to fish at certain times and had intimidated him. The applicant alleged that his wife was involved with the Liberation Tigers of Tamil Eelam ("the LTTE") from 1985 to 1991 and that she had been the subject of questioning in relation to her activities. The applicant alleges that from 1990 to 2007 he assisted the LTTE by transporting food, fuel, and medicine in his home district and steering non-combatant boats, helping to load and unload goods, and building bunkers, and that he paid taxes to the LTTE.
2. The applicant alleges that between 2004 and 2007 he was required to assist the LTTE between three and ten times per month, for which he was paid, and that sometimes his boat was fired on by the Sri Lankan Army and Navy. The applicant alleges that in 2002 he was beaten by authorities when he had to renew his identification card.
3. The applicant alleges that he was involved in a protest organised by the LTTE in 2004. The applicant alleges that he was forcibly recruited by the LTTE and held for between 10 to 12 days in 2008, but that he was not harmed. The applicant alleges that in February 2008, he and his family fled to an area controlled by the Sri Lankan army and were interrogated by the CID and the Sri Lankan army and navy for approximately eight hours, after which time they were allowed to go into the community. The applicant alleges that in July 2012, shortly prior to his departure from Sri Lanka, the applicant was informed that the CID were looking for him and the applicant believed they were looking for him because he provided assistance to the LTTE. The applicant claims to fear harm from the Sri Lankan authorities, including the CID, because he assisted the LTTE for many years and left Sri Lanka illegally and sought asylum in Australia.

1. On 8 July 2016 the delegate refused to grant the applicant a Safe Haven Enterprise visa. The delegate found that the applicant's wife and children currently reside in a particular location where they have experienced no problems. The delegate found that the applicant had not assisted any Tamil political party. In relation to the applicant's wife's involvement with the LTTE from 1985 to 1991, the delegate noted that his wife had been monitored but never harmed by the authorities. The delegate found that the applicant had provided low level support to the LTTE during the conflict. The delegate found that the applicant was questioned and released in February 2008 by the Sri Lankan authorities. The delegate found the applicant not to be a member of the LTTE or a supporter. The delegate found the Sri Lankan authorities, including the CID, were not looking for the applicant in July or August 2012.

1. The delegate was not satisfied there is a real chance that the applicant will face persecution on the basis of his Tamil ethnicity if he returned to Sri Lanka. The delegate was not satisfied that the applicant would face a real chance of persecution from the Sri Lankan due to being a Tamil fisherman. The delegate found that there was not a real chance that the applicant would be persecuted by the Sri Lankan authorities, including the CID, on account of any links to the LTTE or any adverse, anti-government profile.
2. The delegate found that there was not a real chance of persecution of the applicant if he returns to Sri Lanka on account of his departing Sri Lanka illegally. The delegate found that there was not a real chance the applicant would be persecuted if he returned to Sri Lanka for being a failed asylum seeker or returnee. The delegate was not satisfied there was a real chance of persecution of the applicant for one or more of the reasons mentioned in s.5J(1)(a) of the Act, and found that the applicant was not a refugee as defined in s.5H of the Act, and that the applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Act.

1. On 12 July 2016, the Immigration Assessment Authority ("the Authority") wrote to the applicant and acknowledged a referral of the matter to the Authority for review. The Authority identified that the Department had provided the Authority with all documents considered relevant to the applicant's case and provided a fact sheet explaining the limited circumstances in which the Authority could receive new information and a practice direction providing the applicant with an opportunity to provide submissions. In response to that letter, the Authority received on 4 August 2016 an undated letter in Tamil and a certified translation from the Human Rights Commission of Sri Lanka informing the applicant's wife that it had received a response from a police station in relation to a complaint with a reference number, and also provided a letter from a Sri Lankan Member of Parliament dated 20 July 2016.
2. The Authority, in its reasons, identified the applicant's background and identified having regard to the material referred to the Authority under s.473CB of the Act. The Authority referred to the material that was provided to the Authority and which was not before the delegate. The Authority noted that the applicant had not advanced any reason why the documents could not have been provided before the delegate made a decision. The Authority was not satisfied that there was any explanation that explained why either document could not have been made available to the delegate prior to the delegate's decision. The Authority was not satisfied that the information could not have been provided to the minister's delegate before the delegate made a decision.
3. The Authority was not satisfied that the MP's letter was credible and was not satisfied that the information in that letter was credible personal information. The Authority was not satisfied that the material could be considered new information because of the terms of s.473DD(b) of the Act, and did not have regard to it.

1. The Authority identified the applicant's claims. The Authority was not satisfied that the applicant's wife held a senior role in the LTTE. The Authority accepted that the applicant was questioned by authorities in February 2008 and found that he was not harmed but threatened, and after 8 hours he and his family were released and settled and registered in a particular district.
2. The Authority found the applicant was not specifically targeted by the authorities in Sri Lanka prior to or from the defeat of the LTTE in May 2009 until 10 days before he fled to Australia in August 2012. The Authority found that the applicant was not targeted by authorities up to July 2012.
3. The Authority provided reasons for rejecting the applicant's claim that the CID came looking for him in July 2012 and found that to be a fabrication. The Authority found that there had been no inquiries about the applicant by the authorities or as to his whereabouts since he departed Sri Lanka. The Authority found it implausible that the CID would suddenly wish to question the applicant's wife about her membership with the LTTE after 25 years of showing no interest in the matter. The Authority did not accept that the CID contacted the applicant's wife for any reason after the applicant's departure from Sri Lanka.
4. The Authority accepted that the applicant, as a Tamil fisherman, was subject to the military registration / day pass system and that he may face the same situation while fishing if he returns. The Authority accepted that this is discriminatory and systematic conduct by the Sri Lankan authorities and presents a level of day-to-day harassment while undertaking fishing that may have impacted and may impact in the future on the applicant's capacity to earn a living. The Authority found that the applicant's evidence does not support that he and his family were unable to maintain and support themselves throughout his work as a fisherman. Accordingly, the Authority did not accept that the day-to-day harassment on the fishing work is to such an extent that it threatens the applicant's capacity to subsist or otherwise constitutes serious harm.
5. The Authority provided reasons for the finding that the applicant was not at risk because of the work performed for the LTTE. The Authority found that any risk to the applicant from the authorities based on his profile was remote. The Authority was satisfied that the authorities would have had no further interest in the applicant had he remained in Sri Lanka and that he was not the subject of any outstanding investigation that might cause him to be identified as a person of interest to the current Sri Lankan authorities on return.
6. The Authority was satisfied that the applicant would not face a real chance of persecution from the Sri Lankan authorities as a Tamil fisherman or due to his links to the LTTE on return to Sri Lanka now or in the reasonably foreseeable future.

1. The Authority noted that the applicant did not raise any claims to fear harm on account of his Catholic religion. The Authority found that there was no real chance that the applicant would experience harm for reasons of his religion now or in the reasonably foreseeable future.

As a failed asylum seeker and illegal departee

1. In relation to the applicant being a failed asylum seeker and illegal departee the Authority did not accept that the applicant would be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka. The Authority was not satisfied there is a real chance the applicant would face serious harm on his return as a failed Tamil asylum seeker. The Authority accepted that the applicant will face action under the Immigrants and Emigrants Act 1949 (Sri Lanka) ("IE Act"). The Authority found that the applicant may be detained and questioned at the airport for up to 24 hours face-to-face for breaching the IE Act, and depending on the availability of a magistrate at the time he is charged under the Act, may face a short period of being held in prison. The Authority found that a brief period, one to three days of detention, would not constitute the necessary level of threat to the applicant's life or liberty or significant physical harassment, or ill-treatment under s.5J(5) of the Act, or otherwise amount to serious harm for the applicant.
2. The Authority found that any likely questioning of the applicant on arrival at the airport or likely imposition of a fine did not constitute a threat to his life or liberty or to be significant physical harassment or ill-treatment under s.5J(5) of the Act, or otherwise amount to serious harm.
3. The Authority found that the application of the IE Act was a law that was not discriminatory on its terms and that it was a law that was applied generally, and that the investigation, prosecuting, and punishment of the applicant would be the result of a law of general application that did not amount to persecution for the purpose of ss.5H(1) and s.5J(1) of the Act. The Authority was not satisfied the applicant faced a real chance of persecution on the basis of being a failed Tamil asylum seeker departing Sri Lanka illegally now and in the reasonably foreseeable future.

1. Having considered the circumstances of the applicant cumulatively, the Authority was not satisfied the applicant faces a real chance of persecution in the reasonably foreseeable future, other than the period following his arrival or on his return home, whether because of his illegal departure having made a claim for asylum in Australia, his links to the LTTE, as a Catholic, as a Tamil fisherman from the North, or any combination of these. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s.5J and found that the applicant is not a refugee within the meaning of s.5H(1), and that the applicant did not meet the criterion under s.36(2)(a) of the Act.

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

1. On 8 December 2016, a Registrar of the Court made orders fixing the matter for hearing and providing the applicant with an opportunity to file 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 that this was a final hearing to determine whether the Authority's decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained, in summary, this meant the Court was considering whether the Authority's decision was unlawful or unfair.
3. The Court explained that, if satisfied that the Authority's decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority's decision was unlawful or unfair, the application would be dismissed. The Court explained it would have identified the evidence and then hear submissions from the applicant, and then hear submissions from counsel for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

1. From the bar table, the applicant sought to explain the circumstances in which the letter from the Human Rights Commission was provided to the Authority. That explanation was not given to the Authority. The explanation concerned an allegation that someone who obtained the letter was beaten. No such explanation was given to the Authority, and the finding by the Authority that the Human Rights Commission letter was not new information was open to the Authority on the material before the Authority.
2. The applicant complained in relation to the current position in Sri Lanka. This Court does not have power to make fresh findings of fact. The applicant expressed concerned as to what would happen to him on return to Sri Lanka. The applicant made reference to wanting to take soil from Australia because it had kept him alive since he arrived. The Court explained to the applicant that it had no power to determine the applicant's application on compassionate grounds. The Court again explained to the applicant that the Court was confined to considering whether the Authority's decision was unlawful or unfair, and again explained that it could not make fresh findings of fact.
3. The applicant submitted that the outcome of the decision of the Authority must be unlawful because it was sending him back. That was, in substance, an invitation to this Court to engage in merits review. This Court does not have power to engage in merits review.
4. Nothing said by the applicant from the bar table identified any jurisdictional error.

1. The grounds of the application are as follows:
   • 1. The IAA made a jurisdictional error.
   • Particulars
   • IAA failed to find that the Applicant is supporter of the LTTE and therefore he will face persecution on return to Sri Lanka.
   • 2. IAA is in breach of s 424.
   • Particulars
   • In lieu of ground 1, the IAA did not put relevant material to the Applicant before rejecting his claims.

1. In relation to ground 1, the Authority provided reasons in support of the adverse finding made against the applicant, and those reasons cannot be said to lack an evident and intelligible justification. There was no basis identified to hold that the reasoning was unreasonable or irrational. The identification of the adverse finding by the Authority does not identify any illogicality or unreasonableness that could support a finding of jurisdictional error. In substance, ground 1 is an invitation to the Court to engage in impermissible merits review. Ground 1 fails to identify any jurisdictional error.

1. In relation to ground 2, s.424 is a provision found in Part 7 of the Act. I accept the submissions of the first respondent that the nature of the review under Part 7AA is different to the requirements of Part 7. Attention was drawn by the first respondent in particular to s.473BA.
2. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. Further, on the material before the Court, the Authority complied with its obligations of procedural fairness in providing the applicant with an opportunity to provide new information and to put submissions. The Authority was not required to give the applicant an opportunity to respond to the adverse findings made by the Authority.
3. To the extent that the Authority took into account country information, I accept the first respondent's submission that that does not constitute new information enlivening the obligation under s.473DE(1) because of s.473DE(3)(a). The Court notes that there was a s.473GB certificate issued to the Authority dated 8 July 2016 in respect of an identity assessment form.
4. No issue concerning the applicant's identity arose in the present case. The Court is satisfied that that document and the issue of the certificate could not possibly give rise to any different outcome in respect of the review conducted by the Authority. No jurisdictional error arises because of the certificate issued in the present case under s.473GB to the extent that it may not have been disclosed to the applicant. No jurisdictional error, for the above reasons, is made out by ground 2.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street