BJW17 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 03 June 2019
• Neutral Citation: [2019] FCA 813
• Date: 03 June 2019

FEDERAL COURT OF AUSTRALIA

BJW17 v Minister for Home Affairs [2019] FCA 813

Appeal from:	BJW17 v Minister for Immigration and Border Protection [2018] FCCA 3572
File number(s):	NSD 11 of 2019
Judge(s):	FARRELL J
Date of judgment:	3 June 2019
Catchwords:	MIGRATION – appeal from the Federal Circuit Court of Australia – where the primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the Minister to refuse the appellant a Safe Haven Enterprise (Class XE, subclass 790) visa – where appellant’s two grounds of appeal did not meaningfully engage with reasons of primary judge but essentially repeated original grounds verbatim – whether any appellable error demonstrated in primary judge finding that the Authority did not misconstrue the “real chance” test or overlook an integer of the appellant’s claim – appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 5H, 5J, 473EA
Cases cited:	BJW17 v Minister for Immigration and Border Protection [2018] FCCA 3572 CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771
Date of hearing:	24 May 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	62
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Mr A Moss of Clayton Utz
Counsel for the Second Respondent:	The Second Respondent submitted to any order of the Court, save as to costs

ORDERS

		NSD 11 of 2019
BETWEEN:	BJW17 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	3 JUNE 2019

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant must pay the first respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1. This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 21 December 2018: BJW17 v Minister for Immigration and Border Protection [2018] FCCA 3572. The primary judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (or IAA) to affirm a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Safe Haven Enterprise (Class XE, subclass 790) visa (SHEV).

2. The appellant is a citizen of Sri Lanka from the Northern Province and of Tamil ethnicity. He arrived at the Cocos (Keeling) Islands in October 2012 as an unauthorised maritime arrival.

Background

3. The appellant lodged his application for a SHEV on 18 March 2016. The application was accompanied by a written statement dated 14 March 2016 (claims statement) setting out the appellant’s claims to protection.

4. In summary, the appellant claimed to fear that he will be subjected to serious harm, including death, at the hands of Sri Lanka’s Criminal Investigation Department (CID), the Sri Lankan Police and other government agencies, as well as paramilitaries, due to his previous assistance to the Liberation Tigers of Tamil Eelam (LTTE); an imputed pro-LTTE political opinion due to his cousin’s involvement with the LTTE; his status as a Tamil male from Sri Lanka’s Northern Province; and his status as a failed asylum seeker who departed Sri Lanka illegally.

5. The delegate’s decision to refuse to grant the appellant a SHEV made on 16 September 2016 was referred to the Authority on 20 September 2016. The Authority made its decision to affirm the delegate’s decision on 2 March 2017.

Appellant’s factual claims

6. The Authority summarised the appellant’s factual claims in its decision record (or DR) at DR[5] of its reasons:

• The applicant was born in [redacted] and lived all his life in Jaffna, in the Northern Province of Sri Lanka. From birth until approximately 1990 he lived in [redacted], Jaffna; 1990 to 1995 approximately he lived in Singapore; from June 1996 to May 2010 he lived in [redacted] Jaffna, from May to September 2010 he lived in a refugee camp in [redacted]; from September 2010 to May 2011 he lived in [redacted] and from May 2011 to September 2012 he lived again in his home district in [redacted] Jaffna. The applicant married in [redacted] and his wife and three children aged between [redacted] and [redacted] live in [redacted]. The applicant’s parents and three siblings also live in [redacted].

• From 1996 to 2012, the applicant worked as a branch manager of a cooperative which sells rice and other basic foods. The LTTE controlled the areas where the applicant lived and the applicant sold them rice and other basic foods and occasionally transported LTTE members on his motorcycle.

• The applicant’s cousin was a truck driver with the LTTE for approximately eight years. The applicant accompanied his cousin several times when he delivered meals and other goods to the LTTE. The Sri Lankan government was not aware that the applicant assisted the LTTE or that he had a cousin involved with the LTTE.

• In early September 2012, the applicant was riding his motorcycle to work and was stopped by two masked men carrying weapons. They asked him for 300,000 to 400,000 rupees. The applicant did not have the money so they came to the applicant’s home later that night and took some gold owned by the applicant. The applicant believes the men were either from the CID, the army or some other government authority as no other group in Sri Lanka operates this way.

• The applicant was stopped by the CID and police at a checkpoint. They told him to buy them cigarettes and food which he did with his own money. They then told him to leave his motorcycle with them for the day and if he did not they would beat him or kill him so he gave them his motorcycle. In the evening when he returned they gave him back his motorcycle but it had no petrol and he had to push it home.

• The applicant was targeted this way because he is a Tamil and because the CID knew that he had a good job. His brothers both own shops in Colombo and his brother-in-law has a good job in [redacted].

• The CID stopped the applicant on his way to work every day for about a week and took his motorcycle each time. They gave him a bicycle to use to get to work and returned his motorcycle to him in the evening. The applicant has seen many Tamils harassed this way and heard about a Tamil man badly beaten after he refused to hand over his van.

• The applicant became afraid of what might happen to him so he sold his motorcycle and moved his family about 60km away to [redacted]. The applicant stayed there for about a week and then departed to Australia as...