AEE18 v Minister for Home Affairs

[2018] FCCA 2185

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEE18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2185

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority engaged with integers of applicant’s claims.

Legislation:
Migration Act 1958 (Cth), ss.5(H)1, 36(2)(a), 36(2)(aa)

Applicant: AEE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 26 of 2018

Judgment of: Judge Jarrett

Hearing date: 3 August 2018

Date of Last Submission: 3 August 2018

Delivered at: Brisbane

Delivered on: 3 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 21 May, 2018 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 26 of 2018

AEE18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority.  The decision of the Assessment Authority was given on 22 December, 2017.  It affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Safe Haven Enterprise (class XE) (subclass 790) visa.  There is an amended application that has been recently filed.  There is no opposition to the applicant relying upon the amended application.

2. The Immigration Assessment Authority delivered reasons for its decision.  In paragraph 6, it set out the applicant’s claims for protection.  Relevantly, for the purposes of the grounds set out in the amended application, the Authority recorded that the applicant claimed that, in 2005, he was compelled to assist the Liberation Tigers of Tamil Eelam Sea Tigers by bringing them concealed food on two occasions.  He said that he did that because he was fearful of the LTTE.

3. The food was prepared in his home and taken to the beach or harbour.  An LTTE member would meet him there to receive the food, which he had to hide under a fishing net.  The applicant claimed that he needed to get a pass to travel from the army and someone gave a tip to the army that he was carrying food for the LTTE.  He says that the army stopped him about 10 times when he was travelling in that area.  On one occasion, he was carrying food.  He was searched and shoved and slapped on his ear.  At other times, he said he had to buy items for the army to keep them happy and he gave them some of his fish or bought them cigarettes or alcohol.  He was fearful of the army and thinks that he had issues with the army because he is a Tamil and because he was taking food to the LTTE.

4. The Authority made some factual findings about those matters.  In its reasons, it said this:

   (8)     The applicant claims that, in 2005, he was compelled to assist the LTTE Sea Tigers by bringing them concealed food.  The food was prepared in his home and taken to the ….. beach or harbour for the LTTE.  The applicant’s account of this is consistent throughout his application process.  In his arrival interview, this is stated as a key event in his claim for protection.  In his SHEV application, he says that this was the major reason he had to leave Sri Lanka.  Country information supports that the majority Tamil civilian populations in the northern province were required to interact with the LTTE as a matter of course.  The applicant was a farmer and fisherman and had access to both food and the harbour.  I accept that the applicant’s account of being asked to provide food to the LTTE Sea Tigers in ….. is credible and I accept that he provided food on two occasions in 2005.

   (9)     The applicant claims that he needed to get a pass to travel from the Army and that someone gave a tip to the Army that he was carrying food for the LTTE.  Country information is that there were restrictions on travel and roads in the north until 2015, so the applicant would have needed a travel pass to transport his produce.  This would have resulted in him having regular interaction with the Army up until the time he left Sri Lanka in 2012.  The applicant has not provided any detail about how the tipoff was made or even that it was more than a suspicion on his part.  I accept that the applicant had regular contact with the Army because he needed a pass for travel but the applicant has not provided sufficient information or explanation to satisfy me that any tipoff was made to the Army about his other activity.  He was not detained, interrogated or arrested for his support to the LTTE and I do not accept that any tipoff occurred.

   (10)   The applicant claims that the Army stopped him about 10 times when he was travelling in the area.  On one occasion, when he was carrying food, he was searched, shoved and slapped on his ear.  Other times, the applicant had to buy items for the Army to keep them happy.  He gave them some of his fish and brought them cigarettes or alcohol.  The military had a strong presence in the north and Tamils have reported being monitored, harassed, arrested and detained.  I accept the applicant’s account of being stopped on repeated occasions by the Army and being searched or otherwise harassed and being forced to provide them with bribes.  This behaviour is consistent with country information about the discrimination faced by Tamils during and after the conflict, and the discriminatory application of laws, including the Prevention of Terrorism Act.  I accept that this treatment occurred because the applicant is Tamil.

5. The Authority then, from paragraph 14 onwards, considered the matters that it needed to under the Migration Act 1958 (Cth) against the claims that were made by the applicant. Insofar as they are relevant to the grounds of review, the Authority said this:

   (16) I have accepted that the applicant was harassed by the Sri Lankan Army on a number of occasions from 2005.  This included being stopped, searched, shoved and slapped on the ear and being required to supply fish, alcohol and cigarettes.  I am satisfied that the harassment that the applicant experienced at the hands of the Army is indicative of the general harassment and discrimination faced by Tamils in Army-occupied areas during the conflict.  I do consider that he was targeted specifically as a person of interest to the authorities because he provided food to the LTTE or for any other reason.  I note that the applicant does not claim to have been arrested, detained or punished for providing food to the LTTE.  I also note that he has not claimed that any of his family members still living in Sri Lanka have been targeted by the Army and subject to harm or that the Army has continued to pursue him since he left Sri Lanka.

   (17)   I consider that, if the Army thought the applicant was associated with the LTTE during the conflict in 2005, he would have been arrested.  Country information indicates that any alleged association with the LTTE appears to have been grounds for arrest during the war.  Those arrested include individuals who were recruited by the LTTE in the days and weeks before their defeat, as well as individuals who carried out official functions in LTTE-administered areas, and received a salary from the LTTE but had not taken any active part in hostilities.  Bona fide civilians who did not wish to be separated from relatives who have been identified as LTTE suspects were also detained at reception points.  I do not consider that the harassment that the applicant was subjected to was because he provided food to the LTTE or that it constituted serious harm.

   (18)   I have considered whether, on his return to Sri Lanka, the applicant’s Tamil ethnicity and origin in the north of the country would of itself lead to an imputed association with the LTTE which would place him at a real risk of serious harm.  The Sri Lankan authorities are aware that everyone in the northern province at some level of involvement with the LTTE.  The most recent UK Home Office report of 2017 considers that a past connection to the LTTE would only give rise to international protection where the person has or was perceived to have a significant role in the LTTE or if they are or perceived to be active in post-conflict Tamil separatism and thus a threat to the state.

   The DFAT reports that in 2017, Sri Lankan authorities remain sensitive to personal ….. of the LTTE and consider those at highest risk of arrest, detention or prosecution are the LTTEs former leadership.  Those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, are not likely to face adverse harm on the basis of those past connections.  This assessment is consistent with the recent opinion of the UK Government, and I am satisfied that the applicant does not fit this profile.

6. The Authority considered the applicant’s other claims as well and then concluded that he did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act, nor did he meet the criteria set out in s.36(2)(a) of the Migration Act. The Authority considered the applicant’s claims to complementary protection, but on the basis of the matters that it had already determined and on the basis of its further consideration of the applicant’s claims about his treatment should he be returned to Sri Lanka, it determined that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that he would suffer significant harm. The Authority concluded that he did not meet s.36(2)(aa) of the Act. The first respondent delegate’s decision was affirmed.

7. The amended application for judicial review raises two grounds.  The first is that the Authority made a jurisdictional error in that it failed to “discern a convention nexus/reason in the applicant’s case”.  The applicant gives some particulars in his amended application for review.  He highlights that he was providing food to the LTTE Sea Tigers, that he had to transport concealed food to the LTTE Sea Tigers, that he was forced by the LTTE to take training and was compelled to assist the LTTE by bringing them food.

8. He points out that if he did not comply with those requests or demands, he would have had problems, and he was fearful of having those problems.  He points out that there was material before the Authority that demonstrated that he would prepare food in his home and take it to the beach or harbour and he would be met there by an LTTE member who would take the food from him.  And he points out that he was once caught with food for the LTTE by the army during a search.

9. The applicant’s ground of review is, in my respectful view, nothing more than an attempt to cavil with the merits of the Authority’s decision.  What is clear from the paragraphs that I have extracted from the second respondent’s reasons for decision is that it plainly engaged with the applicant’s claims about having provided food to the LTTE and it analysed those claims against the information that it otherwise had available to it.

10. The second respondent’s determination that the applicant was not the target of the army because he had provided food to the LTTE on one occasion that the army knew about, apparently, or perhaps on two occasions was plainly open to the Authority.  Indeed, it would be rather surprising if it came to any other conclusion.  That is especially so given the applicant’s own claims that he was never arrested or detained by the army.  As the first respondent submits, the findings that were made by the Authority on the evidence before it were plainly open.  The second respondent engaged actively with the case that the applicant placed before the first respondent and this ground reveals no jurisdictional error.

11. The second ground in the amended application for review asserts that the second respondent failed to apply the real chance test.  He particularises that by pointing out that there was country information before the second respondent that persons like the applicant were harmed in Sri Lanka and the country information that the second respondent had regard to specifically stated that people who had transported goods to the LTTE were at risk.  He points out that he was one of those people.

12. But as the first respondent submits, the second respondent’s reasons for decision reveal that the second respondent properly considered the DFAT information contained within its report and analysed that information.  It concluded that persons who met a particular description, that is, who had a significant level of involvement with the LTTE as described in that report, might well be at risk of harm should they be returned to Sri Lanka, but the Authority concluded that the applicant here did not fall into any of those categories.  His connection with the LTTE was such that he did not fit any of the criteria that were identified in the DFAT report as leading to the conclusion that a person would be at a high risk should they be returned.

13. Again, the second respondent engaged with the case that the applicant wished to put before the first respondent.  It analysed that claim and it analysed the other material before it to reach a conclusion about the ultimate issue.  The process adopted by the second respondent, the findings that it made and the ultimate conclusion that it reached were all open to it on the material.  The process was entirely unremarkable.  The second ground of review does not reveal jurisdictional error either.  In those circumstances, the amended application must be dismissed.

RECORDED: NOT TRANSCRIBED

1. Costs ordinarily follow the event unless there are special circumstances to suggest that a different order for costs should be made.  Here, the applicant says that he has no money to meet a costs order, but impecuniosity is generally not seen as a special circumstance sufficient to displace the usual rule.  In those circumstances, costs should follow the event.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 August, 2018.

Date: 16 August, 2018