ADG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3408

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3408

File number(s):	SYG 81 of 2017
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	18 December 2020
Catchwords:	MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of Immigration Assessment Authority affirming decision not to grant Safe Haven Enterprise visa – whether it was not open to the Authority not to be satisfied the applicant would be imputed to a particular group – whether Authority considered all of the applicant’s claims – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), 36(2)(aa), 476
Number of paragraphs:	17
Date of hearing:	9 December 2020
Place:	Sydney
The Applicant:	Appeared in person, by telephone, assisted by an interpreter
Solicitor for the First Respondent:	Ms K Pieri of HWL Ebsworth Lawyers, by telephone

ORDERS

SYG 81 of 2017

BETWEEN:

ADG17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	18 DECEMBER 2020

THE COURT ORDERS THAT:

1.The application is dismissed

2.The applicant pay the first respondent’s costs set in the amount of $5,200.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).

   CLAIMS FOR PROTECTION

2. The applicant stated his claims for protection in a statement that formed part of his application for a SHEV.[1] In that statement the applicant claimed as follows:

   (a)The applicant is a national of Sri Lanka, a Tamil, and a Hindu. He was born in Jaffna, Northern Province.

   (b)As a child the applicant was forced to move house many times because “we are Tamils”. The applicant’s house was destroyed by bombs that were specifically targeted towards Tamils.

   (c)In 2007, during the civil war, the applicant was in an area controlled by the Liberation Tigers of Tamil Eelam (LTTE). The applicant was working away from his parents in a shop run by a distant relative, but the applicant was unable to contact his parents because a road had been closed. The applicant went by boat to Jaffna to visit his mother who was quite sick in hospital. On the day after he arrived by boat in Jaffna, the applicant took a bus to the hospital. When getting off the bus the applicant was kidnapped by people in a white van. The applicant was blindfolded, and was taken somewhere. The applicant was questioned by someone who could speak Tamil about why he was in Jaffna and why he had left an LTTE controlled area. They did not believe the applicant, and they beat him with sticks, breaking his hand, because they believed he was a spy. The applicant lost consciousness which he regained at the bus stop from where he had been kidnapped. Some people near the applicant took him to the hospital where an operation was performed on the applicant’s broken hand. The applicant was discharged after two days.

   (d)Later in 2007 the applicant was again detained, this time by “a PRO officer”. The applicant was taken to a Navy camp where he was questioned about the applicant’s connections with the LTTE.

   (e)The applicant had been detained and beaten “around 10 to 15 times”. On each occasion the applicant was questioned about whether he had connections with the LTTE.

   (f)The “most recent time” the applicant suffered harm at the hands of the Sri Lankan authorities occurred in August 2012. The Sri Lankan Army (SLA) came to the applicant’s home and took him away to a camp. The applicant was questioned, and a plastic bag that had some petrol on it was placed over the applicant’s head, making it difficult for him to breathe. The applicant fainted, and when he regained consciousness he heard his family screaming to the authorities for his return.

   (g)The applicant decided he needed to leave Sri Lanka; and he did so by boat.

   (h)The applicant believes he faces a real chance of being persecuted because he is a Tamil; because of “my imputed political opinion”; and because he is a member of a particular social group, namely, persons who had departed Sri Lanka illegally.

   [1] CB44-46

3. At his interview before the delegate (SHEV interview) the applicant claimed that after he left Sri Lanka authorities have been coming to his home asking his family about the applicant, and the authorities told the applicant’s family that the applicant would not be able to go through the airport if he were to return to Sri Lanka.[2] According to the Authority’s reasons, the applicant also claimed that in 2016 the Army CID (Criminal Investigation Department) visited the applicant’s father and asked that the applicant return to Sri Lanka.

   [2] CB323-324

   AUTHORITY’S REASONS

4. The Authority accepted the applicant’s claims that: in 2007 he was taken by the Army CID for about one day during which he was questioned, physically assaulted, and released;[3] that later in 2007 the authorities detained the applicant at a base for a short period and questioned him about any LTTE involvement;[4] and that the Sri Lankan authorities may have periodically visited the applicant at his home or place of work.[5] The Authority, however, did not accept the following elements of the applicant’s claims:

   (a)The applicant was detained and harmed by the SLA in 2012.[6] The Authority relied on what it found were significant discrepancies between the claims the applicant made in his statement and the evidence he gave at the interview before the delegate. The inconsistencies related to the time at which the applicant claimed the incident occurred, and to whether the applicant was detained while at home or while he was on his way to the shops.[7]

   (b)The applicant was detained and beaten up to 15 times.[8] The Authority relied on its findings that the evidence he gave to the delegate was vague and lacking in detail, and the applicant failed to answer direct questions about this part of his claims.[9]

   (c)In 2016 the Army CID visited the applicant’s father and asked that the applicant return to Sri Lanka. The Authority relied on the applicant’s past experiences in Sri Lanka, and country information, on the basis of which the Authority found the applicant does not have the profile that establishes he is a person of ongoing interest to the Sri Lankan authorities.[10]

   [3] CB366, [13]

   [4] CB366, [15]

   [5] CB368, [25]

   [6] CB367, [22]

   [7] CB367, [22]

   [8] CB368, [25]

   [9] CB368, [25]

   [10] CB368-369, [27]-[30]

5. The Authority was not satisfied there is a real chance the applicant would be harmed in Sri Lanka because he is a Tamil, or because he might be imputed to have links with the LTTE. The Authority relied on a country report prepared by the Department of Foreign Affairs and Trade that showed that although Sri Lankan security forces continue to monitor Tamil populations in Northern Province and Eastern Province, their purpose is to ensure the LTTE does not re-emerge; that overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009; are no official laws or policies that discriminate on the basis of ethnicity or language; and the implementation of laws and policies are applied generally without discrimination.[11] The Authority was also not satisfied the applicant faces a real chance of serious harm because he would return to Sri Lanka as a failed asylum seeker.[12]

   [11] CB370, [33]

   [12] CB370, [36]

6. The Authority accepted the applicant would return as a person who had left Sri Lanka illegally. The Authority accepted that on his return the applicant will be charged under the Sri Lankan Immigration and Emigration Act, that he will be detained for a short period in prison, but will be released and fined. The Authority, however, did not accept that this would amount to serious harm. [13]

   [13] CB379-380, [37]-[41]

7. On the basis of these findings the Authority was not satisfied the applicant has a well-founded fear of persecution within the meaning of s.5J of the Act, and, concluded the applicant did not meet the requirement of the definition of “refugee” in s.5H(1) of the Act and, therefore, meet the requirements of s.36(2)(a) of the Act. Relying on the same findings, and additional findings in relation to the processing of persons at persons who had departed Sri Lanka illegally, and prison conditions, the Authority also concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm. The Authority, therefore, was not satisfied the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act.

   COURSE OF HEARING

8. The hearing was conducted by telephone. The applicant appeared without legal representation, although he did have the assistance of an interpreter. As is my usual practice, I explained to the applicant the purpose of the hearing, and the procedure that would be followed. I then identified the documents the parties had filed and which I would need to consider. The applicant confirmed he had received the court book, but he had not received the Minister’s written submissions. I indicated that this should not cause the applicant any difficulty because Ms Pieri, who appeared for the Minister, would make oral submissions. I then invited the applicant to make whatever submissions he wanted to make in support of his application for an order to set aside the Authority. I then read each of the grounds contained in the grounds of application which, of course, were interpreted, and invited the applicant to make submissions. Ms Pieri made submissions in which she articulated in some detail the findings the Authority made, and the reasons why it affirmed the delegate’s decision.

   APPLICANT’S SUBMISSIONS AND GROUNDS OF APPLICATION

9. In response to my invitation for submissions the applicant said he has been living in Australia for years; he left Sri Lanka because of the threat to his life; and he feared for his life if he were to return to Sri Lanka. These submissions only go to the merits of the applicant’s claims for protection, and they do not disclose any jurisdictional error.

10. I then directed the applicant to the two grounds of application. Ground 1 is as follows:

    The IAA made a Jurisdictional error.

    Particulars

    The IAA failed to find the Applicant will be imputed with LTTE profile and suffer harm.

11. As formulated, ground 1 goes no further than expressing disagreement with the Authority’s conclusion that it was not satisfied the applicant might be imputed to have links with the LTTE. This ground could conceivably disclose jurisdictional error if, on the material that was before it, the only reasonably or rational finding that could have been made is that there is a real chance that the applicant would be perceived to have links with the LTTE. The material that was before the Authority, however, is not of such a quality. It was therefore open to the Authority, on the material that was before it, not to be satisfied the applicant might be imputed to have links with the LTTE.

12. In response to my question whether he wished to say anything in relation to ground 1, the applicant said he was working in an LTTE-controlled area and that is why he was tortured. The applicant also said that people living in an LYTTE area are perceived to be LTTE supporters. These are matters that appeal to the merits of the applicant’s claims for protection, and disclose no jurisdictional error.

13. Ground 2 is as follows:

    The IAA made a jurisdictional error.

    Particulars

    The IAA failed to consider all the claims of the applicant.

14. Ground 2 does not identify the claims the applicant made which the Authority failed to consider. There is nothing in the material before me that suggests the Authority did not identify and consider all claims that were expressly made and which reasonably arose from the materials that was before it.

15. When I asked the applicant whether he could tell me what claims he says he made that the Authority did not consider, the applicant said that people “here”, that is, in Australia, do not really know the true situation in Sri Lanka. The applicant also submitted that he stated what had happened, and he asked rhetorically why he was not believed. These submissions do not identify any claim he made which the Authority failed to consider. It is an expression of disagreement with the Authority’s not accepting those parts of the applicant’s claims the Authority did not accept. I am not satisfied it was not reasonably open to the Authority not to accept those aspects of the applicant’s claims.

    DISPOSITION AND COSTS

16. The applicant has not succeeded on any of the grounds and submissions on which he relies and, for that reason, I propose to dismiss the application.

17. The Minister seeks costs in the amount of $5,200. After I explained to the applicant that the usual course is for the Court to order costs in favour of the successful party, the applicant made no submissions against my making an order for costs. There is no reason why costs should not follow the event, and I am satisfied that $5,200 is a reasonable amount for which the Minister’s costs should be set. I propose, therefore, also to order that the applicant pay the Minister’s costs set in the amount of $5,200.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       18 December 2020