EQO17 v Minister for Immigration and Border Protection [2019] FCA 167

FEDERAL COURT OF AUSTRALIA

EQO17 v Minister for Immigration and Border Protection [2019] FCA 167 Appeal from: Application for leave to appeal: EQO17 v Minister for Immigration & Anor [2018] FCCA 2291

File number: NSD 1563 of 2018

Judge: BESANKO J

Date of judgment: 18 February 2019

Legislation: Migration Act 1958 (Cth) ss 5J, 46A Federal Circuit Court Rules 2001 (Cth) r 44.12

Date of hearing: 18 February 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 15

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent: Mr L Dennis

Solicitor for the First Respondent: MinterEllison

Counsel for the Second Respondent: The Second Respondent entered a Submitting Notice, save as to costs

ORDERS NSD 1563 of 2018

BETWEEN: EQO17 Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE: BESANKO J DATE OF ORDER: 18 FEBRUARY 2019

THE COURT ORDERS THAT:

1. The application for leave to appeal dated 26 August 2018 be dismissed. 2. The applicant pay the first respondent's costs of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J: 1 This is an application for leave to appeal against an order made by the Federal Circuit Court of Australia. On 17 August 2018, the Federal Circuit Court acting under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) dismissed the applicant's application for judicial review. The Federal Circuit Court held that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Immigration Assessment Authority (the Authority) and, therefore, dismissed the application (EQO17 v Minister for Immigration & Anor [2018] FCCA 2291). 2 The test on an application for leave to appeal is well-established. The applicant must show that the decision in relation to which leave is sought is attended with sufficient doubt to warrant a grant of leave to appeal and that the applicant will suffer substantial prejudice should leave be refused and supposing the decision to be wrong. I have reached the conclusion in this case that the decision of the Federal Circuit Court is not attended with sufficient doubt to warrant a grant of leave to appeal. 3 The matters leading up to this application are as follows. The applicant is a citizen of Sri Lanka who arrived in Australia at Christmas Island on 14 November 2012. The Minister exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) (the Act) allowing the applicant to make a valid application for a specified visa. The applicant made an application for a Safe Haven Enterprise Visa, Subclass 790 which was received by the Department on 29 August 2016. On 16 March 2017, a delegate of the Minister made a decision refusing the application. The delegate's decision was a "fast track reviewable decision" which the Minister referred to the Authority. On 26 September 2017, the Authority affirmed the decision under review. 4 The applicant claimed to fear harm in Sri Lanka by reason of the following: an imputed profile with the Liberation Tigers of Tamil Eelam (LTTE) and because he was suspected of supplying information, goods and weapons to the LTTE; and because he was a failed asylum seeker who left Sri Lanka illegally. 5 The applicant recounted a number of events in support of his claims. They are conveniently summarised in the Federal Circuit Court's reasons (at [7]): a) his cousin and his brothers-in-law were involved with the LTTE and died in 1990 and 1991, respectively; b) from 1992 to 1994, he frequently visited an LTTE controlled area of Batticaloa to visit his wife; c) in 1994 or 1995, the applicant was arrested and detained by the Sri Lankan Army (SLA) during a routine round up on suspicion of working with and keeping weapons for the LTTE, he was held for four days and beaten; d) after he was released from detention, the applicant went to Qatar where he worked from 1995 to 1998; e) in 1998, he returned to Sri Lanka where he worked as a contractor in Batticaloa in both the LTTE controlled area and the government controlled area; f) in 2006, he returned to Qatar due to fear that he would be targeted by the authorities on the basis that they suspected he was supplying information, goods or weapons to the LTTE; g) in January 2012, he returned to Sri Lanka – he claimed that a friend arranged for him to pay a bribe to someone working at the airport to facilitate his entrance; h) in August 2012, the Criminal Investigations Department (CID) came to his home, spoke to his wife about whether the applicant had been passing messages to the LTTE, and threatened to kill him; and i) after the applicant's departure to Australia in 2013, the authorities again attended his family home and asked about his whereabouts. 6 The Federal Circuit Court noted that the Authority accepted that a number of events which form part of the applicant's account took place. It accepted that the applicant's cousin and brothers-in-law were LTTE members, that each are now dead, that the applicant was detained and mistreated in 1994 or 1995, that the applicant travelled to LTTE controlled areas, and that it was plausible that the authorities visited the applicant's house twice in 2006. However, the Authority did not accept that the applicant was imputed with an LTTE profile when he left Sri Lanka and was not satisfied that he would be imputed with one on his return. The Authority considered it implausible that the applicant would have been able to proceed through checkpoints and was not stopped or prevented from conducting his work if he had had an LTTE profile as he claimed. The Authority did not accept that he was of interest to the authorities in 2012 or that they made the claimed visits to his house in 2012 or the claimed further visit in 2013 after he had departed from Sri Lanka. 7 The Authority considered that the events in 1994 or 1995 and 2006 were indicative of how Tamils in general were then being treated and did not indicate that the applicant was being targeted because he was suspected of having an LTTE profile or supplied information, goods or weapons to the LTTE. 8 In considering the treatment of the general Tamil population, the Authority noted that there had been a significant change in country circumstances since the end of the war and since the applicant departed from Sri Lanka. 9 The Authority found that there was no evidence that the applicant's status as a failed asylum seeker would bring him to the adverse attention of the authorities on return to Sri Lanka. It found that his illegal departure from Sri Lanka may have consequences, but that those consequences would not constitute serious harm under s 5J(5) of the Act and, in any event, arose by reason of a law of general application. 10 In terms of the applicant's proposed appeal, he seeks to rely on the grounds of his application for judicial review which were as follows: Ground 1 IAA made a jurisdictional error by not finding the Convention nexus. Particulars Applicant was suspected of LTTE connections. Ground 2 IAA did not consider the country information. Particulars IAA made a jurisdictional error. LTTE supporters are still persecuted in Sri Lanka. There was other information suggesting that persons like the Applicant will be persecuted on return to Sri Lanka. 11 With respect to Ground 1, the Authority was not satisfied that the applicant would face serious harm upon his return to Sri Lanka. As the Federal Circuit Court said, in light of that conclusion, the Authority was not required to make a finding as to whether the applicant would be targeted for the alleged serious harm for a Convention reason. More importantly, the Authority was not satisfied that the main Convention reason advanced by the applicant had been made out. It made the point on a number of occasions in its reasons that it was not satisfied that the applicant would be imputed with an LTTE profile or considered to have supplied information, goods and weapons to the LTTE (see [15], [21], [23], [24], [26] and [40]). 12 With respect to Ground 2, as the Federal Circuit Court decided, this ground is without merit. The Authority had regard to country information in a number of paragraphs in its reasons. By way of example I refer to [10], [11], [23] and [25]. As the Federal Circuit Court noted, the applicant did not identify before that Court, and nor did he identify before this Court, any country information the Authority failed to consider. 13 The applicant appeared before me in person. He had the aid of an interpreter. He had not filed any written outline of submissions in support of the application, "and in support of any appeal were the Court to grant an extension of time and/or leave to appeal" (see Registrar's orders 12 September 2018, paragraph 4). 14 The applicant said that he could not go back to Sri Lanka because the Criminal Investigations Department were looking for him because of his involvement in LTTE activities. He also told me that there were still problems in Sri Lanka. 15 The applicant has not identified any error in the reasons of the Federal Circuit Court. In addition, I have considered the reasons of the Authority. I have been unable to discern any error, let alone jurisdictional error in those reasons. In the circumstances, the application for leave to appeal must be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.