Authority Refused Application for Safe Haven Enterprise Visa
The applicant applied for a Safe Haven Enterprise Visa, believing that he will be subjected to serious and significant harm by authorities, including Criminal Investigation Department (CID) and SLA. Th Authority found that the applicant did not have a well-founded fear of persecution if returned to Sri.Lanka. The Court, in deciding whether or not the Authority erred, assessed the applicant's severe mental illness.
Facts:
The applicant, a Tamil Hindu citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 13 December 2012. He believes he will be subjected to serious and significant harm by authorities, including CID and SLA because he is Tamil, who the government believe supported the LTTE and hid weapons for them. On 28 August 2015, the Minister invited the applicant to apply for a protection visa, lifting the statutory bar pursuant to the provisions of s. 46A of the Migration Act 1958 (Cth) (‘the Act’). On 15 June 2017, the applicant applied for a Safe Haven Enterprise (Sub Class 790) Visa (SHEV).
On 27 June 2018, a delegate of the Minister refused the visa application. The Immigration Assessment Authority (‘the Authority’) affirmed the decision of the delegate. The Authority recorded that it had obtained as new information an updated DFAT report related to the treatment of Tamils, asylum seekers and returnees which had been issued in May 2018. The Authority found that the applicant did not have a well-founded fear of persecution if returned to Sri Lanka.
The applicant suffers serious mental health problems and sees a psychologist fortnightly and is on intramuscular and oral medication. Without the medication he suffers from severe psychotic episodes and hallucinations and has been hospitalised twice. It was submitted the government’s failure to provide adequate mental health services amounts to a knowing omission with an intention to inflict pain or suffering. On 15 June 2020, the applicant filed an Originating Application for Review of the decision of the Authority.
On 15 June 2020, the applicant filed an Amended Application for Review.
Issue:
Whether or not the Authority erred in finding that the applicant did not have a well-founded fear of persecution if returned to Sri Lanka.
Applicable law:
Migration Act 1958 (Cth) ss 5H(1), 5J, 36(2)(a), 36(2)(aa), 46A, 473CB - sets out the requirements for one to be considered a refugee and be qualified for protection.
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 - where, at [12] – [42] inclusive, the plurality (Gleeson CJ, Gaudron, Gummow and Hayne JJ) dealt with what constituted discrimination in respect of a particular social group.
AJZ17 v Minister for Home Affairs [2019] FCA 1485 - Her Honour stated that discrimination is not simply the different treatment of individuals or of classes of individuals. There are two distinct aspects to discrimination. The first, which needs no elaboration, is the different treatment of people who are not relevantly different; the second is the treatment of people who are relevantly different in a manner that is not appropriate and adapted to that difference.
ABT17 v Minister for Immigration and Border Protection & Anor [2020] HCA 34 - Kiefel CJ, Bell, Gageler and Keane JJ said that Part 7AA of the Migration Act 1958 (Cth) confers jurisdiction on the Immigration Assessment Authority to review a "fast track reviewable decision".
Minister for Immigration and Citizenship v SZIAI[2009] HCA 39; (2009) 259 ALR 429 - held that in the absence of the applicant putting any such evidence before the Authority, and then clearly articulating in what respect such law might have been discriminatory, it could not be said that the Authority failed to make an obvious inquiry about a critical fact.
Minister for Immigration and Border Protection v SZMTA[2019] HCA 3; (2019) 264 CLR 421 - where the Authority found that the applicant did not face a real chance of serious harm if he was to come into contact with police or government authorities as a result of any of his behaviour caused by his mental illness.
Minister for Immigration and Citizenship v SZMDS(2010) 240 CLR 611 - Crennan and Bell JJ said that 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.
Nabe v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 263; (2004) 144 FCR 1 - where in the absence of the applicant putting any such evidence before the Authority, and then clearly articulating in what respect such law might have been discriminatory, it could not be said that the Authority failed thereby to undertake a proper review of the applicant’s claims.
Minister for Immigration and Citizenship v SZRKT[2013] FCA 317; (2013) 212 FCR 99 - where it was submitted that in relation to illogicality, the illogicality demonstrated must be extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one which reasonable minds may come to different conclusions.
Minister for Immigration and Border Protection v SZUXN[2016] FCA 516; (2016) 69 AAR 210 - where it was submitted that caution should be exercised when considering the rationality or logicality of a decision, as such arguments can “too readily be used to conceal what is in truth simply an attack of the merits” of a decision.
Minister for Immigration and Citizenship v Li[2014] FCAFC 1; (2013) 249 CLR 332 - provided that 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.
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCAFC 228 - where it was held that a decision which no reasonable person could have arrived at, or one which is arbitrary or capricious, is unreasonable.
Minister for Immigration and Multicultural Affairs v Eshetu[1999] HCA 21; (1999) 197 CLR 611 - where it was provided that emphatic disagreement with a factual finding does not demonstrate any unreasonableness.
Minister for Immigration and Border Protection v SZVFW[2018] HCA 30 - provided that the test for unreasonableness is “necessarily stringent”.
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 10 - where it was held that in relation to country information, the choice and assessment of the weight to be given to such information are factual matters for decision-makers.
CSV15 v Minister for Immigration and Border Protection[2018] FCA 699 - where it was submitted that s. 36(2)(a) of the Act was concerned with persecution inflicted upon a person by others, rather than such person suffering illness by reason of their return to their home country.
Analysis:
In the applicant's Amended Application for Review, it was alleged in Ground 1 that the IAA failed to conduct a review by failing to consider whether any law of Sri Lanka, that may lead to detention, was 'appropriate and adapted', such that it did not amount to discrimination, qualifying as persecution for the purposes of section 36(2)(a) of the Migration Act 1958.
In Ground 2, in considering whether the Applicant has a well-founded fear of persecution by reason of his membership of a particular social group, being persons with severe mental health issues, the IAA erred by asking itself the wrong question or failing to apply the correct test.
In Ground 3, that the IAA failed to conduct a review according to law by engaging in an illogical and unreasonable reasoning process. The Authority submitted that the Applicant currently receives three medications and some community support which is needed to maintain good mental health and good functionality in the community.
The medical discharge summary indicated that the applicant’s mental health was exacerbated by alcohol and drug use. Had there been any evidence put before the Authority, by or on behalf of the applicant, as to what laws in Sri Lanka may lead to detention or other adverse action, the Authority would have been in a position to readily undertake the inquiry/review for which it was criticised for not undertaking. However, nowhere in the material before the Authority was there any evidence of any law which might have so qualified. The written reasons of the delegate did not record that any law in Sri Lanka was discriminatory in nature or effect regarding people who suffered mental illness.
The Authority was under no statutory obligation to act as the applicant’s advocate, or otherwise make out the applicant’s case by necessarily researching a plethora of Sri Lankan laws which might be discriminatory.
Conclusion:
The Court ordered the name of the First Respondent to be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”. The Amended Application for Review filed on 15 June 2020 is dismissed. The Amended Application for Review filed on 15 June 2020 be dismissed. The Applicant is to pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $7,853.00.
