Adn17 v Minister for Immigration
[2018] FCCA 3606
•4 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADN17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3606 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider all of the applicant’s claims – whether the Authority failed to consider an integer of the applicant’s claims – whether the Authority failed to consider the applicant’s claims cumulatively – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 5H, 36, 473CB, 473DD, 476 |
| Applicant: | ADN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 16 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 4 December 2018 |
| Date of Last Submission: | 4 December 2018 |
| Delivered at: | Perth |
| Delivered on: | 4 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr F Robertson |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Ms C Walsh |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
DATE OF ORDER: 4 December 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 16 of 2017
| ADN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 7 December 2016 affirming 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 as an unauthorised maritime arrival on 13 October 2012. The applicant was found to be a Tamil from the Kilinochchi District in the Northern Province.
The applicant claimed to fear harm from the Sri Lankan Government, particularly the Criminal Investigation Department (“CID”), due to his Tamil ethnicity and the fact that he was part of the Liberation Tigers of Tamil Eelam (“LTTE”) cause. The applicant also claimed to fear harm from the Sri Lankan authorities due to seeking asylum abroad. On 2 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
On 7 November 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were 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. The applicant did put on submissions which were expressly referred to in the Authority’s reasons.
The Authority in its reasons identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority expressly acknowledged having regard to the applicant’s submissions dated 24 November 2016 insofar as they engaged with the delegate’s decision. The Authority identified that there was other new information and, having taken into account both limbs of s 473DD of the Act, was not satisfied that there are exceptional circumstances justifying considering the new information. The Authority summarised the applicant’s claims, including specifically the fears referred to above.
The Authority noted that the Safe Haven Enterprise visa application included a submission from the applicant’s former representative that he feared harm from the LTTE. The Authority noted the new representative provided a submission to the Authority that the applicant never instructed his previous representative that he feared harm from the LTTE. The Authority in that regard accepted that the applicant did not fear harm from the LTTE, consistent with the submission advanced on behalf of the applicant. The Authority noted during the protection visa interview the claim was put to the applicant and the applicant responded the LTTE is no longer in existence and that his fear from harm is from the Sri Lankan Army and the CID.
The Authority was satisfied the applicant was not involved in any LTTE-related activity prior to January 2009 or following March 2009. The Authority accepted the applicant’s claim that while in Jaffna in 2010 he experienced low-level harassment from the Sri Lankan Army personnel and that in Kilinochchi in 2010 the applicant experienced similar harassment from Sri Lankan Army personnel.
The Authority referred to the entry interview in which the applicant claimed he feared he would be suspected of being an LTTE member by virtue of him being from the particular region in the Northern Province. The Authority referred to an incident where he and some other friends were detained in 2010 by the CID. The Authority accepted the CID detained the applicant for 45 minutes and questioned him about any prior LTTE involvement. The Authority referred to another incident in which the applicant claimed three months earlier men from the ‘54th Division’ took him to a camp. The Authority identified significant differences in the applicant’s testimony in relation to the date and duration of the claimed incident and was not satisfied that the applicant was recounting a genuine personal experience and did not accept the applicant was taken to a camp as claimed.
The Authority referred to the applicant stating that his father had previously been investigated by the Sri Lankan Army and that the applicant expanded on this in his Safe Haven Enterprise visa statement, where it was submitted that his father actually works for the LTTE and that both the applicant and his father had been taken for questioning by the authorities. The Authority referred to the protection visa interview in which the applicant had stated his father was recruited against his will. The Authority was satisfied the applicant’s father’s role within the LTTE was to provide material support in the form of digging bunkers. The Authority took into account country information and accepted as plausible that the applicant’s father was questioned by the authorities at the end of the conflict. The Authority also accepted as plausible that on that occasion the applicant was with his father when this occurred.
The Authority referred to the claims that the applicant had not put forward at his entry interview, the first being that he and his family had provided food to the LTTE during the conflict. The Authority accepted this claim was plausible. Secondly, the Authority referred to the applicant claiming his father had been badly beaten during questioning and is now suffering mental issues and the applicant claimed that his father is in hiding. The Authority accepted as plausible that the applicant’s father experienced mistreatment at the end of the conflict due to an association with the LTTE but did not accept the applicant’s father is currently hiding or moving from place to place in order to evade the authorities.
The Authority referred to the concerns expressed by the delegate as to the father having a low profile within the LTTE and whether he would be of ongoing interest to the Sri Lankan authorities. The Authority did not accept the applicant did not know the extent of his father’s role within the LTTE.
The Authority referred to a claim that the applicant’s father was questioned by the CID in 2016 regarding the applicant’s whereabouts. The Authority in that regard referred to the applicant in the protection visa interview stating that he feared returning to his village in the event that somebody who is familiar with his past identifies him and reports his previous LTTE involvements to the CID. It was in this context that the Authority found the applicant’s oral evidence at the interview does not support that the Sri Lankan authorities have imputed him as someone with LTTE links. The Authority did not accept the applicant’s father was questioned by the CID regarding the applicant’s whereabouts in 2016.
The Authority referred to the United Nations High Commissioner for Refugees (“UNHCR”) Guidelines. The Authority did not accept the applicant’s claim that he was taken to an army camp in June 2011 or July 2012 or that the CID questioned the applicant’s father in relation to the applicant’s whereabouts as recently as 2016.
The Authority found the applicant’s father was forcibly recruited by the LTTE to build bunkers for a period of six months and that the applicant’s family provided food to the LTTE. The Authority was not persuaded the applicant faces a real chance of persecution by reference to having family links to persons with the profiles identified in the UNHCR Guidelines. The Authority found the applicant does not have and is not perceived as someone with actual links to the LTTE. The Authority was not satisfied the applicant is at risk of harm due to his father’s previous role in the LTTE. The Authority was not satisfied that the applicant is of ongoing interest to the authorities. The Authority was not satisfied the applicant faces a real chance of serious harm due to his, or his father’s profile, on return to Sri Lanka now and the reasonably foreseeable future. The finding by the Authority in that regard was clearly a finding in respect of the applicant’s fear of harm by reason of being imputed as an LTTE supporter.
The Authority turned to the applicant’s Tamil ethnicity and being a returning asylum seeker. The Authority concluded the applicant is not a person that country information suggests is at risk of serious harm by virtue of his Tamil ethnicity and/or imputed links to the LTTE. The Authority was not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities by virtue of his return as a failed asylum seeker. The Authority referred to country information in relation to people with substantial links to the LTTE or those suspected of committing serious crimes. The Authority found it was not satisfied the applicant is a person with that kind of profile.
The Authority was not satisfied the applicant face a real chance of serious harm due to being a failed asylum seeker from Australia now or in the reasonably foreseeable future if he returns to Sri Lanka. The Authority found the applicant would not face a real chance of imprisonment. The Authority found that the provisions and penalties of the Immigrants and Emigrants Act 1949 (Sri Lanka) are laws of general application and are not applied in a discriminatory manner. The Authority found the applicant does not face a real chance of serious harm from the Sri Lankan authorities due to his illegal departure, travel to Australia or for any other reason.
The Authority then expressly referred to having had regard to the applicant’s claims individually and cumulatively. It was in that context that the Authority found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act.
The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.
The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm.
The Authority found that the applicant did not meet the criterion in s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds of the amended application are as follows:
1. The decision of the IAA was vitiated by jurisdictional error in that it failed to consider a claim that arose squarely on the facts, namely whether the applicant as a person who:
(a) was a Tamil;
(b) was the son of a person who gave assistance to the LTTE for a period of 6-months;
(c) had been involved with the LTTE;
(d) had previously been questioned in relation to his involvement with the LTTE; and
(e) who was returned to Sri Lanka as a failed asylum seeker;
may, on account of those factors taken cumulatively, be imputed with an opinion of supporting the LTTE.
2. The decision of the Immigration Assessment Authority (‘IAA’) was vitiated by jurisdictional error in that it failed to consider the applicant’s claim that he fears that if he is forced to return to Sri Lanka (SL), he will be detained either at the airport or on return to his village on grounds that he did not come forward to identify himself as a person who had been with LTTE.
Mr Robertson of counsel on behalf of the applicant confirmed that the particulars to ground 2 were no longer advanced and that ground 3 was abandoned.
Ground 1
In relation to ground 1, Mr Robertson submitted that the Authority had failed to consider the cumulative impact of the applicant having being a person with imputed links to the LTTE being aggravated by reason of being a failed asylum seeker. Mr Robertson contended, notwithstanding the reference to the cumulative consideration, that there should have been an express consideration of the combination of the applicant being a failed asylum seeker together with his fears in respect of imputed links to the LTTE.
The Authority’s reasons are to be read as a whole. The Authority clearly made dispositive findings in respect of the whole of the applicant’s claims. There was no integer of the applicant’s claims that the Authority failed to deal with, nor was there any substance in the proposition that the Authority did not consider the claims cumulatively.
The Authority’s reasons are inconsistent with that proposition. There is no basis for the Court to infer that the Authority did not cumulatively consider the claims as identified by the Authority. There was no necessity, in the circumstances of the present case, for the Authority to provide any further reasoning in that regard. The Authority’s reasons were dispositive for the whole of the applicant’s claims and reflect a real and genuine engagement with the applicant’s claims and evidence. There is no integer of the applicant’s claims that was not considered. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, Mr Robertson took the Court to the submissions that were advanced to the Authority and, in particular, the reference by the applicant in those submissions to the applicant’s expressed concern that he would be detained at the airport or on return to his village on grounds that he did not come forward and identify himself as a person who had been with the LTTE for a week.
The Authority’s reasons expressly refer to taking into account these submissions. It is not necessary for the Authority to refer to every piece of evidence that is before it. The Authority’s identification of the applicant’s claims in the dot points identified in paragraph 9 clearly identify the applicant’s claimed fear of harm consistent with having taken into account the submissions to which the Authority expressly referred it had regard. There is no basis in the circumstances of the present case to find the Authority failed to have regard to those submissions. In fact, it is clear when one goes to paragraph 23, where the Authority refers expressly to the applicant’s fear in respect of returning to his village, that the submissions were taken into account.
The Authority’s findings in those circumstances were dispositive of the applicant’s claims. There was no need for the Authority in the circumstances of present case to make any further express finding in respect of the return to the village in circumstances where the Authority had clearly taken that into account in respect of the applicant’s claimed fears. Accordingly, there was no failure to consider the applicant’s claim as alleged in ground 2. No jurisdictional error as alleged in ground 2 is made out.
Conclusion
Accordingly, the amended application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 1 February 2019
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