ACA18 v Minister for Home Affairs
[2018] FCCA 2038
•26 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACA18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2038 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to address integers of the applicant’s claims – whether the Authority misunderstood the applicant’s claims – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476. |
| Applicant: | ACA18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 47 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 26 July 2018 |
| Date of Last Submission: | 26 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Australian Presence Legal |
| Solicitors for the Respondents: | Mr L Dennis MinterEllison |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 47 of 2018
| ACA18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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 15 December 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 28 September 2012 as an unauthorised maritime arrival. The applicant was found to be a Tamil male who had been born at a particular location in the Kilinochchi division, Jaffna district in the Northern Province of Sri Lanka.
In his statement in support of his protection application, the applicant identified that in 1999 he was living in Kilinochchi, which was then under Liberation Tigers of Tamil Eelam (“LTTE”) control and his father was working in a particular hospital as a nurse and during the course of his duties he attended to many LTTE cadres who had been injured in fighting. The applicant also said that his father had several plots of land which they farmed and rented some of the land to others and that his mother kept the house and he had a brother and a sister.
The applicant alleged when he was 14 years old he was forced to undertake training with the LTTE and during the training he was injured and that he was then discharged from hospital and then went to stay with a relative because he did not want to return to the LTTE. The applicant alleged that when he was at school the People’s Liberation Organisation of Tamil Eelam (“PLOTE”) and the Tamil Eelam Liberation Organisation (“TELO”), being paramilitary groups, attempted to recruit him on many occasions. The applicant kept saying he did not want to join.
In 2006 the applicant started working at an Non-governmental organisation in Batticaloa. The applicant alleges his father visited him in Batticaloa quite regularly, but in November 2007 his father disappeared. The applicant alleges he received an anonymous call after the disappearance of his father asking where the applicant was. The applicant believed the father’s disappearance was linked to his having treated LTTE cadets and, out of concern for the applicant’s safety, he decided to leave Sri Lanka and travel to Singapore in 2007.
In August 2009, at the end of the civil war the applicant returned to Sri Lanka and went to Vavuniya, where he located his family in a government controlled camp. The applicant was told because he had been overseas he had to report to the police station and obtain police clearance. The applicant believed because his father’s disappearance and his travel overseas he would attract too much suspicion if he attended a police station so he decided to depart Sri Lanka and travel to Singapore in October 2009. In January 2010, the applicant returned to Sri Lanka and was detained by the Criminal Investigation Department (“CID”) at the airport and questioned for two hours before being released. After returning to Vavuniya men went to the applicant’s home seeking his whereabouts. They also asked about his father’s whereabouts and the applicant decided to leave Sri Lanka again.
In March 2010, the applicant contacted an agent in Colombo to organise a student visa for the United Kingdom. The applicant was told the cost in rupees and made arrangements to deposit money into the agent’s account. In July 2010, the first UK student visa application was refused. The applicant applied again and in March 2011 the second student visa was refused. After the two UK student visa refusals, the applicant tried to recover the money he had paid to the agent, but the agent kept making excuses and delaying payment.
In January 2012, after several months of frustration, the applicant claimed he made a complaint to the Vavuniya police and that the applicant accompanied the police to Colombo and the agent was arrested and taken back to Vavuniya with one of her sons and that they gave statements and that the agent was then held on remand. Outside the Court, the applicant alleged the agent’s son said that he would give the applicant money if he would drop the case and the applicant refused and that the son then made a threat to the applicant that if he did not withdraw the case that he was from the Eelam People’s Democratic Party (“EPDP”) and he would have the applicant finished. The applicant then made a complaint to the police station about the threats and the applicant was informed a new case would not be made until the current one is finished. The applicant believed the police had been paid money by the agent and her sons not to do anything for him.
In May 2012, the applicant was at his home in Kilinochchi when two men told him that he had to attend the Sri Lankan Army (“SLA”) camp. The applicant went to the camp and he was asked about his father’s kidnapping and why he was in Vavuniya and why he had gone to Singapore. The applicant stated he was accused of working for the LTTE and threatened. The applicant stated he was released after one to two hours. The applicant alleged he was told on release that they had not finished with him and that he would have to come back to the camp when he was told.
The applicant alleges in June 2012, while the Court case was continuing, the agent’s son phoned the applicant and abused and threatened him and the applicant started to think he would have to leave Sri Lanka again. The applicant signed a power of attorney giving his aunt the power to act on his behalf in the Court proceedings against the agent and departed Sri Lanka. In August 2015, after the applicant’s arrival in Australia, men attended his brother’s shop and asked for the applicant’s whereabouts and when his brother did not provide information they physically assaulted him and his brother was hospitalised. In December 2015, a Facebook conversation was initiated by one of the agent’s sons and this showed the son, who is involved with the EDPD, held a grudge about the complaint and the Court case involving his mother. The applicant claimed to fear harm by reasons of repercussions flowing from the disappearance of his father and the litigation involving his agent.
On 27 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
The Authority
On 30 March 2017, the Authority wrote to the applicant explaining that the application for visa had been referred to the Authority for review. The letter explained the limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.
Submissions were provided to the Authority, which were referred to in the Authority’s reasons dated 4 April 2017, as well as an email dated 11 October 2017, which was discussed in the Authority’s reasons. The Authority identified the background to the visa application and had regard to the information referred by the Secretary under s 473CB of the Act.
The Authority referred to the applicant’s father being a nurse in a particular hospital and during the course of his employment he attended to many LTTE cadres who had been injured during the civil conflict. The Authority also referred to the applicant’s claims in relation to having tried unsuccessfully to obtain UK student visas and then deciding to try and recover the money back from the agent and, in January 2012, allegedly making a complaint to the police and alleging that the agent had been arrested and held on remand until the Court case and that outside the Court there was a threat made to the applicant by the agent’s son.
The summary of the claims identified the applicant then contending that he went to the police to make a further complaint about the threats and that he was told no new case could be made and that the applicant believed the police had been paid money by the agent and her sons not to do anything and that in June 2012, the agent’s son phoned the applicant and again threatened him. The Authority referred to and summarised the applicant’s claims and evidence and also identified there are references to what occurred in his first protection visa application to the effect that after his father went missing he became actively involved in rallies.
The Authority referred to the applicant alleging that earlier in July 2012, the CID approached him and took details of his whereabouts. The applicant told them he was participating in the rallies as his father had been missing. The applicant referred to the CID as thinking his father was involved in the LTTE and that the applicant had been supporting the LTTE since he returned from overseas. The applicant alleged he was released the next day and the applicant alleges he overheard them saying if the applicant returned it would be his last and the applicant fled for Australia.
The Authority found the applicant was not involved in any anti-government rallies in Sri Lanka and did not accept that in July 2012 the CID came to the applicant’s house and took him to the SLA camp where he was physically assaulted and questioned before being released. The Authority did not accept the applicant ran away and fled to Australia after this event. The Authority found the applicant’s own evidence is that these statements were not true. The Authority did not accept the applicant had undertaken training or been forcibly recruited by the LTTE.
The Authority referred to the applicant’s claim that his father worked as a nurse in the government during the course of his employment attending to many LTTE cadres who had been injured during the civil conflict. Reference was also made by the Authority in that regard to the fact that the father owned several plots of land, which he farmed and he rented some of the land to others. The Authority referred to the applicant being asked about his father’s connection to the LTTE at the protection interview and the applicant referring to his father working at a hospital which treated many of the LTTE. The applicant was asked whether this was the only involvement of his father with the LTTE and the applicant stated he was 14 years old at the time and if the applicant’s father did have any further involvement it would have been in secret. The Authority referred to the applicant being asked about his father’s employment as a nurse and whether he had medical qualifications to work as a nurse.
The Authority referred to the applicant’s birth certificate stating the father was a farmer and not a nurse and what the delegate was told when this issue was raised with the applicant. The Authority did not accept the applicant’s father was a nurse and employed in the government hospital and did not accept that the applicant’s father during his employment attended to injured members of the LTTE. The Authority did not accept the applicant’s father had any involvement with the LTTE including in secret.
The Authority found the applicant’s claims regarding his father’s involvement with the LTTE was not made at the entry interview. The Authority referred to the applicant’s evidence that his father was a nurse when he was born is contradicted by his own birth certificate, which lists his rank or profession as “cultivation”. The Authority considered the applicant’s response to these discrepancies but was unpersuaded that the applicant has been a truthful witness in regards to this aspect of his claims and was not satisfied this aspect of his claims were true. The Authority accepted that the applicant’s father disappeared in November 2007, but did not accept the applicant’s father disappeared on account of his involvement with the LTTE or the TMVP.
The Authority was not satisfied the applicant faced a real chance of harm as a consequence of his father’s disappearance were he to return to Sri Lanka now or in the reasonably foreseeable future. The Authority did not accept the applicant had ever been approached or was of interest to paramilitary groups, include PLOTE, TELO or TMVP. The Authority was not satisfied the applicant has a real chance of harm on account of his past circumstances from paramilitary groups on his return to Sri Lanka now or in the reasonably foreseeable future. The Authority was satisfied the applicant was not of any interest to the Sri Lankan authorities or any other groups or individuals at the time of his departure from Sri Lanka in October 2009.
The Authority did not accept the applicant was subjected to round ups and told to attend for questioning prior to his departure. The Authority did not accept two men went to the applicant’s home in 2012 and told him to attend an SLA camp. The Authority referred to the applicant’s attempts to obtain a visa. The Authority also referred to a Facebook conversation allegedly showing the agent’s son is angry with the applicant and involved in the EPDP.
The Authority accepted that after the unsuccessful UK visa applications the applicant approached the agent asking for his money back and accepted that the agent made excuses for delaying payment to the applicant and that the applicant approached the Sri Lankan police about making a complaint in respect of the agent. The Authority accepted that the police acted on the complaint and that the agent was arrested and Court proceedings commenced. The Authority accepted that the Court proceedings were concluded and the agent ordered to pay money back to the applicant by instalments and the agent started to do this. The Authority accepted that on 23 July 2012, the applicant signed power of attorney to his aunt to act on his behalf in relation to the Court proceedings against the agent.
The Authority did not however accept the applicant went with police to arrest the agent in Colombo. The Authority did not accept that the applicant paid for the van and for the arrest against the agent to be executed. The Authority did not accept the agent’s son threatened the applicant. The Authority did not accept the agent and her sons are wealthy and influential. The Authority did not accept since the applicant’s arrival in Australia the agent or her sons have sought the applicant’s whereabouts.
The Authority identified the applicant’s claims in this regard lacked credibility and were unconvincing. The Authority referred to the applicant’s claim that the police did not act on the threats because they had been paid money by the agent or her son as being incompatible with the documentary evidence of the police initiating that complaint and Court proceedings being taken against the agent. The Authority was not satisfied that the agent and her sons had a level of influence and wealth as claimed and that a payment of money would not have been made at the initiation of a complaint by the applicant in order to ensure the complaint and subsequent Court proceedings did not occur. The Authority was not satisfied that the circumstance arising from the applicant’s involvement in the complaint and subsequent Court proceedings involving the agent give rise to a well-founded fear of harm on return to Sri Lanka now or in the reasonably foreseeable future.
The Authority was not satisfied the applicant’s or his family’s past or present circumstances would lead to any adverse interest or consequence for the applicant, even if identified on his return to Sri Lanka. The Authority was not satisfied the applicant would be imputed with any type of profile arising from his or his family past circumstances on return to Sri Lanka. The Authority was not satisfied that the applicant as an unmarried Tamil male who resided in a former LTTE controlled area in the Northern Province or his past movements, his travel overseas, his father’s disappearance or his employment with the Non-governmental organisation he will be perceived to have pro-LTTE or pro-Tamil or anti-Sri Lankan government political opinion, on his return to Sri Lanka now or in the reasonably foreseeable future. The Authority was not satisfied the applicant has a real chance of harm as a Tamil or because of any actual or imputed pro-LTTE or anti-Sri Lankan government political opinion, on his return to Sri Lanka now or in the reasonably foreseeable future.
The Authority referred to the process to which the applicant would be subjected on return because of his illegal departure and found that it would not amount to serious harm and also found the Immigrants and Emigrants Act 1948 (Sri Lanka) to be a law of general application that would not amount to persecution under s 5J(1) of the Act.
The Authority was not satisfied the applicant faces a real chance of serious harm in Sri Lanka as a Tamil asylum seeker who departed illegally and is returning from Australia, on his return to return to Sri Lanka now or in the reasonably foreseeable future. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act found the applicant failed to meet the criteria in s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds in the amended application are as follows:
1. The second respondent (the IAA) erred by failing to consider a claim made by the applicant, being that his father was both a nurse at a hospital, and was also engaged in cultivation.
3. The IAA erred in that it misunderstood the applicant’s claims as to the circumstances in which he instituted legal proceedings against an agent who had defrauded him, and therefore failed to consider the claim actually made.
Particulars
(a) The IAA disbelieved the applicant’s claimed belief that the police did not act on his complaints of threats made against him by the agent’s sons was because they had been paid money by the agent. The IAA found that this was incompatible with his initiating a complaint and court proceedings against the agent because the agent could have paid money to prevent the case being started.
(b) The claims actually made in their correct sequence was that a complaint was made to the police, the arrest occurred, the applicant was threatened and the police subsequently refused to act on his claims about the threats. Thus, on the applicant’s claims as correctly understood there was no opportunity for the agent to bribe the police before the arrest and initiation of proceedings.
Mr Karp of counsel on behalf of the applicant confirmed that ground 2 was not pressed and was abandoned.
Ground 1
In relation to ground 1, Mr Karp took the Court to the applicant’s statement and submitted that there was a integer of the applicant’ claim, being the combination of his father’s role as a nurse and his engagement as a farmer or cultivator that meant that the Authority had not made findings in respect of the applicant’s claim. Mr Karp submitted that the applicant’s claim to fear harm was by reason of his father’s involvement as a nurse at a hospital in treating the LTTE cadres. There was no claim that arose on the material that the applicant claimed to fear harm by reason of his father’s cultivation of land or being a farmer. As summarised above the Authority rejected the applicant’s claim that his father was a nurse and provided logical and rational reasons in support of that finding.
I do not accept that there is any integer of the applicant’s claims that was not addressed in the findings made by the Authority. No jurisdictional error as alleged in ground 1 is made out.
Ground 3
In relation to ground 3, Mr Karp submitted the Authority has misunderstood the circumstance of the applicant’s claims involving the agent and that, as a matter of logic, the Authority’s finding misunderstood the sequence of events by reasoning that if the agent and son were people of wealth and influence that a payment of money would have occurred at the initiation of the complaint by the applicant. There is nothing illogical in the Authority’s reasoning in that regard.
Whilst I accept that the Authority found the agent had been arrested, that the arrest arose in circumstance where it is clear from the Authority’s reasons that the agent had been pursued for repayment of funds by the applicant. The Authority’s reasons should not be read with a keen eye for error. The reference to a payment being made at the initiation of the complaint is a logical and rational process of reasoning that was open to the Authority in the circumstances where it is alleged the agent and the son could influence action being taken by the police. I do not regard the Authority’s reasons in paragraph 65 as identifying any misunderstanding of the applicant’s claims or the circumstances in which the proceedings were brought by the applicant against the agent.
The proposition that there was no opportunity for the agent to bribe the police in respect of the arrest or the initiation of proceedings does not logically follow from the circumstances identified by the Authority. I do not accept the proposition that there was no opportunity for the agent or her son to bribe the police and the Authority’s reasons in that regard and findings were open on material before the Authority. No jurisdictional error as alleged in ground 3 is made out.
Conclusion
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 5 September 2018
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