Acf17 v Minister for Immigration

[2019] FCCA 1017

ACF17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1017

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority considered all claims made the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 476

Cases cited:

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

Minister for Immigration and Multicultural Affairs v Rajalingam & Ors [1999]

FCA 719

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197

ALR 389

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs

(2003) 199 ALR 364

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2)

[2004] FCAFC 263

Applicant: ACF17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number:   SYG 41 of 2017

Judgment of: Judge Emmett

Hearing date: 15 April 2019

Date of Last Submission: 15 April 2019

Delivered at: Sydney

Delivered on: 16 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Angel Aleksov

Solicitors for the Applicant: WLW Migration Lawyers

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 41 of 2017

ACF17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 15 December 2016 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 31 August 2016 refusing the applicant a Safe Haven Enterprise (Subclass 790) Visa (“SHEV”).

2. The applicant is a citizen of Sri Lanka of Hindu faith and Tamil ethnicity, who fears harm from the Sri Lankan authorities in Sri Lanka.

Background

1. The applicant arrived in Australia on 5 November 2012 as an unauthorised maritime arrival.

2. On 23 February 2016, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection.

3. On 31 August 2016, the Delegate refused the applicant’s application for a SHEV.

4. On 7 September 2016, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.

5. On 15 December 2016, the Authority handed down its decision affirming the decision of the Delegate not to grant the applicant a SHEV.

6. On 9 January 2017, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.

The applicant’s Claims for a SHEV

1. The applicant’s written claims in support of his SHEV application are accurately summarised in the Delegate’s decision, as follows:

   i)The applicant is a Tamil, born in Jeyapuram, Killinochchi District, Sri Lanka.

   ii)The applicant fears returning to Sri Lanka.

   iii)It was difficult living in Sri Lanka because of the conflict and the applicant’s family were accused of being Liberation Tigers of Tamil Eelam (“LTTE”) or LTTE sympathisers. They were also subjected to forcible recruitment by the LTTE.

   iv)The applicant’s two older brothers were forcibly recruited by the LTTE.

   v)The applicant and two of his brothers were sent to India in 1990 by their parents, to escape the fighting. The applicant remained there until his departure in 2012.

   vi)In 2009 the applicant’s parents were injured when their home was hit in shelling attacks. Both parents later died as a result of their injuries.

   vii)The applicant cannot return to Sri Lanka because he will be persecuted by the Sri Lankan authorities.

   viii)The applicant has a well-founded fear of persecution for reasons of his race and imputed political opinion.

The Delegate’s Interview and Decision

1. On 17 August 2016, the applicant attended an interview with the Delegate.

2. The applicant’s further claims made at that interview are summarised in the Delegate’s decision, as follows:

   i)The applicant’s wife has left him, has remarried and remains in India.

   ii)The applicant’s one sister and two brothers live in Sri Lanka.

   iii)The applicant cannot return to Sri Lanka because he could not depend on any people there and he would be tortured. The applicant would be tortured because he and his family supported the LTTE when they lived in Sri Lanka. The applicant claims the LTTE may still have his details in Sri Lanka.

   iv)The applicant’s two brothers were forcibly recruited by the LTTE and they lost contact with them. The applicant cannot recall when this happened but it was after he went to India.

   v)The applicant’s sister and family were arrested but he was unsure of the date and detail. The applicant claims that they were detained for 3 or 4 years in a camp and were released after the applicant had been in Australia for one year. The applicant’s family were detained in a camp in Vavuniya. This was not put in the applicant’s statement of claims because he forgot to raise it. The applicant cannot live with his sister and her family in Sri Lanka because they cannot guarantee that they would be able to look after him.

   vi)The applicant would be a target to Sri Lankan authorities because of the previous involvement that his family had with the LTTE, by giving them food and looking after boxes for them.

   vii)The applicant would be arrested in the airport because he is by himself. The applicant doesn't have anyone in Sri Lanka and his sister is unable to look after him.

   viii)The applicant is unsure whether his older brothers are alive or dead. One of these brothers was released from a camp but he has since disappeared. The applicant claims that this brother was kidnapped by someone in a white van. Some people told his sister that this had happened.

3. The applicant had one phone call with his brother, but he was unable to say when this was. The applicant’s brother told him that he was held in a camp because of his association with the LTTE.

4. The Delegate raised concerns with a number of the applicant’s claims for protection including his past association with the LTTE; the lack of details in regards to the forced recruitment of the applicant’s brothers by the LTTE; and, the applicant’s lack of profile in Sri Lanka. The Delegate noted the applicant’s responses to those concerns. The Delegate also raised doubts about the overall credibility of the applicant’s claims.

5. The Delegate noted the 205 page submission received from the applicant’s migration agent as well as the applicant’s statement of claims which included country information which pre-dated the Delegate’s decision. The Delegate noted that the applicant’s migration agent did not describe how the various articles and information provided were relevant to the applicant.

6. The Delegate had regard to country information before it in finding that the applicant was of no interest to the Sri Lankan authorities for any reason when he left Sri Lanka. The Delegate noted that in light of the improved situation in the north of the country and, that the applicant did not have any real or perceived links to the LTTE; the Delegate found that the chance of the applicant facing persecution for that reason was remote, even if there was an ongoing military presence in the area.

7. Therefore, the Delegate found the applicant did not have a well-founded fear of persecution for being a Tamil from the north of the country or for being from an area previously controlled by the LTTE.

8. The Delegate accepted that the applicant may be at risk of discrimination in Sri Lanka. The Delegate also accepted that many young Tamils may feel alienated and distrustful of the Sri Lankan authorities after the end of the war. However, the Delegate found that the level of discrimination described (if it were to occur to the applicant) would not amount to serious harm.

9. The Delegate noted the applicant’s claims to have been involved in protests in Chennai in India near the end of the Sri Lankan conflict. The Delegate subsequently considered the possibility of the applicant coming to the attention of the Sri Lankan authorities. The Delegate found that possibility to be remote. Therefore, the Delegate did not accept that the applicant had a well-founded fear of persecution in relation to his imputed political opinion as an LTTE supporter.

10. In light of the country information before it, the Delegate found it was unlikely that the applicant would be targeted for serious harm by the state beyond standardised checking procedures and that such procedures and laws were of general application.

11. The Delegate was not satisfied that the applicant was a refugee as defined by section s.5H(1) of the Act. Therefore, the Delegate was also not satisfied the applicant was a person in respect of whom Australia had protection obligations as outlined in s.36(2)(a) of the Act

12. The Delegate noted Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 in support of the principle that the risk threshold of ‘real risk’ was the same as ‘real chance’ before finding that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there was a real risk the applicant would suffer significant harm as required by s.36(2)(aa) of the Act.

13. Therefore, the Delegate found that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.

14. On 31 August 2016, the Delegate refused the applicant’s application for a Protection Visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Convention and did not meet the alternative complementary protection criterion.

The Authority’s Review and Decision

1. On 1 September 2016, the Delegate’s decision refusing the applicant a Protection Visa was referred to the Authority.

2. The applicant provided submissions on 14 September 2016 in support of his review.

3. The Authority summarised the applicant’s claims for protection before making the following findings:

   i)The Authority accepted that the applicant's family provided some support to the LTTE by providing food and looking after boxes for them.

   ii)The Authority accepted that the applicant departed Sri Lanka illegally in 1990 and that he had no Sri Lankan identity card.

   iii)The Authority found that the inconsistencies in the applicant's accounts extended beyond vagueness or inconsistencies in peripheral details which seriously damaged the veracity of his claims.

   iv)The Authority noted the considerable effort that had been taken to support the application with information however, did not accept that the applicant simply forgot to include claims that were very significant. The Authority concluded that the applicant had fabricated claims regarding his brother.

   v)The Authority noted that the applicant consistently claimed that this brother remained in Sri Lanka when other family members moved to India. On that basis, the Authority accepted that the applicant’s second brother may have had LTTE links; that his brother spent some time in a camp; and, that he was released sometime around 2013 or earlier.

   vi)However, the Authority did not accept that his brother had been abducted in a white van.

   vii)The Authority did not accept that the applicant's sister and her family were held by the authorities until 2013 because of an LTTE profile. The Authority found that the applicant’s sister and her family were held in an internally displaced persons camp as displaced Tamils after the war.

   viii)The Authority noted the lack of evidence that the applicant’s brother-in-law had any profile, apart from being an internally displaced person after the war, and was not satisfied that his disappearance signified any future risk of harm to the applicant.

   ix)The Authority accepted that the applicant's parents were deceased but not as a result of their house being shelled in December 2009 and in light of the applicants arrival interview where he stated his parents died of natural causes.

   x)The Authority accepted that the applicant may have attended protest meetings in India, but was not satisfied that the applicant's name and picture had been published.

   xi)The Authority was not satisfied that the applicant's involvement in protests in India in 2007 and 2008 would have come to the attention of the Sri Lankan authorities.

   xii)The Authority found, based on country information before it, that there was not a real chance of serious harm arising for the applicant as a Tamil.

   xiii)The Authority had regard to the applicant’s concerns about the lack of support he may receive should he return to Sri Lanka. In doing so the Authority noted that the applicant’s parents were deceased and his sister was not in a position to assist him. However, having regard to a Department of Foreign Affairs and Trade (“DFAT”) report the Authority was not satisfied that the applicant's experience would amount to serious harm and systematic and discriminatory conduct.

   xiv)In light of the applicant’s illegal departure in 1990, the Authority accepted that the applicant would be subject to penalty under the Immigrants and Emigrants Act 1949 (“the I&E Act”) which regulates entry and exit from Sri Lanka. The Authority found that the investigation, prosecution and punishment of the applicant under the I&E Act would be the result of a law of general application and would not amount to persecution for the purpose of s.5H(l) and s.5J(l) of the Act.

   xv)The Authority found that there was not a real chance that the applicant would face any harm as a returning failed Tamil asylum seeker.

4. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Authority affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Angel Aleksov, of counsel.  

2. By consent, the applicant was given leave to file in Court and rely on an Amended Application. Counsel for the applicant confirmed that the only ground now relied upon by the applicant is Ground 2. All other grounds including Ground 1, were withdrawn.

3. Ground 2 is as follows:

   2. Ground 2 - The IAA failed to consider important evidence.

   Particulars

   a. At Reason [39], the IAA accepts country information indicating that the applicant may be required to have a family member act as a guarantor in order to secure bail and may need to wait until such a family member arrives.

   b. In relation to determining what harm might befall the applicant in the course of the return procedure to Sri Lanka and the likely charges he would face under the Immigrants and Emigrants Act, the IAA failed to deal with the evidence regarding the lack of familial support, and in turn, the question whether the applicant might be unable to have a family member act as a guarantor (as appears to be likely) and so, what might happen to him in the event (e.g. whether his detention may be longer than was the norm and might expose the applicant to a real chance of significant harm).”

4. Counsel for the applicant contended that in considering the risk of harm to the applicant on returning to Sri Lanka having departed illegally, the Authority failed to consider the risk to the applicant where the applicant did not have a family member who could act as guarantor on a bail application.

5. Relevantly, the Authority found that:

   “If a person pleads guilty, they will be fined and released. In most cases, when a returnee pleads not guilty, they are immediately granted bail on personal surety by the Magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to act as guarantor. Bail conditions are imposed on a discretionary basis, although DFAT understands those conditions are rarely applied…Once before the court and if not dealt with on the spot, if the applicant pleaded guilty, the returnee would ordinarily be released unconditionally or be bailed to return to court at a later date.”

   (Emphasis added)

6. The Authority made the further finding:

   “There is no indication that the applicant was involved in facilitating or organising any people smuggling as part of his 1990 departure. Based on country information I find that the applicant may be detained and questioned at the airport for up to 24 hours, be fined for breaching the I&E Act and, may face a period of time held in prison…I am satisfied the applicant would face only a brief period in detention.”

7. Counsel for the applicant submitted that the Authority accepted that the applicant had a concern about a lack of support on return to Sri Lanka. The applicant had claimed that his parents were deceased and that he has one sister and two brothers living in Sri Lanka. The applicant claimed that his sister had been arrested and at least one brother forcibly recruited by the LTTE. The applicant claimed that because he could not depend on any people in Sri Lanka, if returned he would be tortured. As stated above, the Authority accepted that the applicant’s parents were deceased and that a brother of the applicant may have had LTTE links but was not satisfied that the applicant’s sister had been arrested or that his brother in law had any profile that put the applicant at risk.

8. The Authority noted DFAT information that non-government organisations had not raised concerns about the treatment of Tamils who have lived in other countries for extended periods and have returned to Sri Lanka. The Authority accepted that the applicant departed Sri Lanka illegally in 1990 when he and his siblings went to India. Due to his illegal departure in 1990 the Authority accepted that the applicant would be subject to penalty under the I&E Act noting that penalties included prison for up to 5 years and fines. The Authority found that in practice penalties are applied on a discretionary basis and are almost always a fine.

9. The Authority then summarised the process for involuntary returnees upon arrival in Sri Lanka. It was in the course of the Authority’s summary of the DFAT information on this process that the Authority made the statement complained of above that the applicant may be required to have a family member act as guarantor.

10. Counsel for the applicant submitted that the Authority’s summary posed the alternatives for a returnee pleading not guilty, as being immediately granted bail on personal surety, or may be required to have a family member act as guarantor. Counsel for the applicant submitted that the Authority was aware that the applicant did not have family members who could act as guarantor and should have considered the consequence for the applicant in those circumstances.

11. In support, counsel for the applicant referred to Minister for Immigration and Multicultural Affairs v Rajalingam & Ors [1999] FCR 719 at [62] - [63] and [137] per Sackville J. However, this is not a case where the Authority made a finding adverse to the applicant in respect of which it expressed some doubt. As stated above, the statement “or may be required to have a family member act as guarantor” was not a finding by the Authority beyond its acceptance as that statement being part of a DFAT report, the contents of which it accepted and relied upon.

12. I do not accept the applicant’s submissions that the Authority was making a finding that the applicant may be required to have a family member act as guarantor in order to be granted bail. Fairly read, the Authority was doing no more than summarising the relevant country information. The Authority found that the applicant would be subject to the I&E Act, that such Act was a law of general application, the breach of which would involve the applicant subject only a brief period of detention.

1. I accept the submission of counsel for the first respondent that the applicant did not make any express claim that he did not have a family member who could act as a guarantor and that in the absence of such a claim, there was no need for the Authority to make any specific finding. The function of the Authority is to respond to the case that the applicant advances (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ.

2. Moreover and in any event, there was no evidence before this Court of any updated country information since the Authority’s decision in relation to the options of personal surety or guarantee by a family member in relation to bail applications by involuntary returnees. In those circumstances, even if error was to be found in the Authority’s decision (which I do not so find), in relation to a claim that the Authority was required to consider the consequences to the applicant if he had no family member to act as guarantor, such consideration would be of no utility.

3. However, as stated above, I read the words complained of by the applicant as no more than part of the Authority’s summary of the relevant country information. The Authority made its critical finding that the applicant would face only a brief period in detention in the context of that country information and in the context of its finding that the I&E Act was a law of general application and does not amount to persecution for the purposes of ss.5H(1) and 5J of the Act.

4. Accordingly, Ground 2 is not made out.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified with specificity independent country information to which it had regard.

2. The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 16 April 2019