AFY17 v Minister for Immigration

[2019] FCCA 748

FEDERAL CIRCUIT COURT OF AUSTRALIA`

AFY17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 748

Catchwords:
MIGRATION – Application seeking review of a decision of the Immigration Assessment Authority – whether the Tribunal made a jurisdictional error – whether the Tribunal’s decision was illogical – whether the Tribunal’s decision was unreasonable – whether the Tribunal’s decision was based on evidence – impermissible merits review – application dismissed.

Legislation:

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

Cases cited:

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402

Applicant: AFY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 134 of 2017

Judgment of: Judge Nicholls

Hearing date: 7 March 2019

Date of Last Submission: 7 March 2019

Delivered at: Sydney

Delivered on: 27 March 2019

REPRESENTATION

Representative for the Applicant: Mr S. Hodges

Solicitors for the Applicant: Hodges Legal

Representative for the Respondents: Ms C. Saunders

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 16 January 2017 and as further amended is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $4312.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 134 of 2017

AFY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 16 January 2017. The application was amended, and then further amended on 21 February 2019. All previous grounds have been abandoned, while ground five is pressed. The application seeks review of the decision made by the Immigration Assessment Authority (“the Authority”) on 19 December 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a safe haven enterprise visa (“SHEV’).

2. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”, “RE1”).

Background

1. The applicant is a citizen of Sri Lanka (item 10 at CB 16). The applicant arrived in Australia on 10 September 2012, without a valid visa (item 47 at CB 55). The applicant applied for a SHEV to remain in Australia. This was received by the Minister’s department on 30 December 2015 (CB 37).

2. The Authority outlined the applicant’s claims to fear harm in its decision record ([5] at CB 232 to CB 233):

   “…

   ·He is a Tamil from Northern province.

·In 1985, he and his family lived in an Indian refugee camp for one year. He entered and departed India illegally. They went to India after two of his brothers were released from questioning. In 1989, his family were displaced to a different village in Northern province.

·He was a staunch supporter of TNA for approximately 15 years. He assisted candidates at local and parliamentary elections. In April 2010, he began assisting a TNA candidate, Mr T prior to parliamentary elections. He campaigned with Mr T in the applicant’s home village and neighbouring villages.

·In August 2012, the applicant began assisting a TNA candidate Mr R prior to the Eastern provincial council election. The applicant went to Eastern province to campaign for Mr R. The applicant stayed at the home of Mr Y, a TNA MP from Eastern province, who is closely connected to Mr T.

·After campaigning one night when walking back to the home of Mr Y, two Tamil speaking armed men on a motorcycle warned the applicant to stop assisting the TNA. The applicant told Mr Y what happened. Mr Y recommended the applicant return to his home village in Northern province as Mr Y would be unable to protect the applicant from Tamil paramilitary groups.

·Two days after returning to his home village, when walking close to his home at night, two Tamil speaking armed men threatened the applicant not to be involved with the TNA anymore.

·The applicant then departed Sri Lanka illegally in August 2012 to come to Australia.

·After he arrived in Australia, his family told him Tamil speaking men came to his home looking for him.

·He believes the men who threatened him did so because of his support of the TNA and the men are members of the Karuna group or CID. Tamil paramilitary groups cooperate with the CID. He fears being arrested under PTA laws.

·Because he is a Tamil from the North of Sri Lanka, he will be jailed if he returns to Sri Lanka because he applied for asylum in Australia and departed Sri Lanka illegally.”

[Errors in the original.]

1. Additionally, it should also be noted that at [8.8] of the applicant’s written submissions the applicant submits that one of his claims is:

   “The applicant’s older brothers were detained and tortured by Sri Lankan authorities for a period of three months in 1985.”

1. On 22 August 2016 the delegate refused to grant the applicant a SHEV ([1] at CB 232). The delegate did not believe that “the applicant was owed protection obligations for any of his claimed reasons” ([2] at CB 232). On 25 August 2016 the matter was referred to the Authority (CB 202).

2. The Authority’s assessment of the applicant’s claims can be divided into two broad categories. One being whether the applicant can be classified as a refugee under the Act, the other being if the applicant could be eligible to receive complementary protection.

3. In assessing if the applicant could be classified as a refugee under the Act, the Authority took the following into consideration:

   a.   The applicant’s support of the Tamil National Alliance (“TNA”) ([8]-[10] at CB 233 to CB 234);

   b.   The applicant’s brothers’ detention in Sri Lanka ([11]-[12] at CB  235);

   c.   The applicant is of Tamil ethnicity and from the Northern Province and may be perceived to have a connection to the Liberation Tigers of Tamil Eelam (LTTE) ([13]-[15] at CB 235 to CB 236);

   d.   The applicant’s status as a failed asylum seeker ([16]-[18] at CB 236); and

   e.   The applicant’s illegal departure from Sri Lanka ([19]-[27] at CB 236 to CB 238).

4. The Authority ultimately came to the conclusion that the applicant did not meet s.5H(1) or s.36(2)(a) of the Act ([28] at CB 238).

5. In assessing if the applicant could be eligible for complementary protection, the Authority focused on determining if there was a real risk the applicant may likely suffer significant harm. In making this assessment the Authority took the following into consideration:

   a.The applicant’s illegal departure from Sri Lanka ([31]-[32] at CB 238 to CB 239);

   b.Discrimination due to the applicant’s Tamil ethnicity ([33] at CB 239); and

   c.Balance of claims ([34] at CB 239).

6. Although the Authority found that the claims of the applicant were “credible”, upon balancing the claims and taking into account Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 the Authority found that the applicant did not satisfy the necessary requirements to be granted complementary protection under s.36(2)(a)(a) of the Act. The Authority believed that ([34] at CB 239):

   “the applicant singularly or cumulatively does not have a real chance of serious harm from Karuna group, any other Tamil paramilitaries, the CID, any other Sri Lankan authorities and/or any other political opponent of the TNA”.

The Further Amended Application

1. The sole ground proposed in the applicant’s further amended application (21 February 2019) is in the following terms:

“Ground 5

The Authority committed jurisdictional error by making a finding which was illogical, unreasonable and not based on any evidence.

PARTICULARS

a.The applicant claimed that he had been approached by two Tamil-speaking men who were armed twice, within the space of two days, in August 2012.¹ The first incident occurred while he was pasting posters for a TNA candidate in the Eastern province and the second incident occurred in his home village in the Northern province.

b.The applicant departed from Sri Lanka at the end of August, almost immediately after these incidents.

c.The Authority accepted that both of these events had occurred as the applicant claimed and that they caused the applicant to have subjective fear which motivated him depart Sri Lanka.²

d.The Authority further accepted that the unknown men had visited the applicant’s home after he left from Sri Lanka.³

e.Despite making the two findings above, the Authority was not satisfied that these visits were related to the applicant’s support for the TNA. The Authority did not have evidence before it to suggest that these visits had occurred for any reason other than the applicant’s support of the TNA.

f.The Authority failed to provide reasons for concluding that the visits were not related to the applicant’s support of the TNA.

g.Moreover, the Authority failed to consider two crucial aspects of the applicant’s claims when concluding that it did not consider that the applicant would face serious harm upon return on the basis of his support for the TNA.

a.Firstly, the Authority failed to consider the temporal proximity between the two incidents during which the applicant was threatened.

b.Secondly, the Authority failed to consider the significance of the fact that the two incidents occurred in different provinces. It ought to have considered the likelihood that the applicant was being targeted specifically rather than as a general citizen who supported the TNA.”

[Footnotes omitted.]
[Error in the original.]

The Argument

1. The applicant’s ground directs attention to [9] (at CB 234) of the Authority’s decision record:

   [1]  “I accept too that unknown, armed Tamil speaking men warned the applicant not to cooperate with the TNA both in Eastern province and threatened him in his home village in August 2012. I accept those two instances caused the applicant to have a subjective fear which motivated him to depart Sri Lanka. I consider the applicant’s claims of being warned/threatened for his pro-TNA activities are generally consistent with the country information in the DFAT reports, ¹ quoted by the delegate and referred to by the applicant’s former migration agent regarding political violence in Sri Lanka, particularly in the 2012 Eastern provincial council election. [2] I am not satisfied however that the unknown Tamil speaking men who warned the applicant in Eastern province and who threatened him in his home village were CID or members of the Karuna group. I note too the country information regarding the Karuna group cooperating with the Sri Lankan authorities. However, the country information and the DFAT reports indicate the Karuna group is only one of many political opponents of the TNA. The evidence before me is the applicant told the unknown men in Eastern province where his home village was in Northern province. [3] While I am mindful whichever political opponent of the TNA it was who warned/threatened the applicant, that political opponent had to have the wherewithal to be organised in both Eastern and Northern provinces. I consider that though would be the case for most political parties, not only the Karuna group with or without cooperation of the CID. On the evidence before me, I am not satisfied the unknown Tamil speaking men who warned the applicant in Eastern province and in Northern province were from the Karuna group or the CID. I consider too whomever the political opponent was, to some extent, the applicant complied with the warning to cease cooperating with the TNA in Eastern province, which was confirmed by the same opponent locating the applicant in Northern province.[4] I note the applicant’s claims his family told him unknown Tamil men came to his home asking about him after he arrived in Australia. His evidence about that was vague but also does not suggest those unknown men were armed or made any threat regarding the applicant to his family. While I am willing to accept unknown men did come to his home looking for him, I am not satisfied that relates to his former support of the TNA.”

   [Errors in the original.]

   [Footnotes omitted.]

   [The numbers inserted in square brackets in the paragraph have been added for ease of reference in the consideration below.]

1. The sole ground of the application asserts that the Authority’s decision was illogical and unreasonable and not based on any evidence.  Before the Court this was explained by the applicant’s solicitor as follows (with particular focus on [9] of the Authority’s decision).

2. The Authority accepted that the applicant had been approached by unknown, armed, Tamil speaking men when he was engaged in supporting a TNA candidate in the Eastern Province of Sri Lanka, and that the men warned him not to cooperate with the TNA.  The applicant left the Eastern Province as a result of this.

3. The Authority also accepted that two days after he returned to his home village in the Northern Province of Sri Lanka, he was approached by armed Tamil speaking men who also warned him not to cooperate with the TNA.

4. The Authority found that these two events caused the applicant to develop a subjective fear which motivated his departure from Sri Lanka.

5. The Authority also accepted that after the applicant left Sri Lanka, unknown men had visited his home, looking for him.

6. The Authority’s decision was said to be illogical and unreasonable because, despite finding that armed Tamil speaking men had approached the applicant on the two occasions referred to above, it did not accept that the visit to his home was related to the applicant’s support of the TNA.

7. The complaint is also that the logicality and the unreasonableness of the Authority’s analysis, is further revealed because the Authority did not have any evidence before it to suggest the visit to his home would be for any reason other than his support for the TNA.

8. Further, the Authority accepted that the applicant had given generally consistent evidence, and accepted that the applicant supported the TNA (see [8] at CB 233 to CB 234).

9. The applicant also submitted that the Authority’s references to the “Karuna group” and “CID” as they appear at [9] (at CB 234) were irrelevant to a proper consideration of the applicant’s claim to fear harm.

10. The applicant’s argument was that whichever group the Tamil speaking armed men belonged to (and there were other paramilitary groups to which they could have belonged) it was still illogical for the Authority to accept that the applicant had been approached by such men on two occasions because of his TNA support and to warn him to cease his support, yet without reason, the Authority rejected that the men who came to his home after he left Sri Lanka did so for that same reason.

11. The applicant also submitted that the fear of harm (which the Authority accepted) was heightened by the fact that, whatever groups the armed men belonged to, their capacity to approach the applicant in two different Provinces within a short temporal span meant they were well organised, and the applicant had “nowhere to hide”.

12. In his written submissions the applicant relies on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (at [133]) per Crennan and Bell JJ as to the correct approach for this Court to adopt in determining this ground. Further he relies on SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19] for the proposition that a finding which is a critical step in the decision maker’s conclusion, for which there is no evidence in support, may well constitute jurisdictional error.

13. The Minister’s submissions to the Court were concise and it must be said quickly revealed the flaws in the applicant’s argument.

Consideration

1. In the current case the applicant relies on a reading of the Authority’s decision which is not a fair reading, and in part seeks to cloak disagreement with the Authority’s analysis and findings in an allegation that the Authority’s reasoning was illogical and unreasonable. In short the applicant seeks impermissible merits review.

2. True it is that the Authority accepted that the applicant was a supporter of the TNA and that he had been approached by unknown armed Tamil men in both the Eastern and Northern Provinces (see part [1] of [9] (CB 234) as set out at [13] above).

3. These findings were based on its assessment of the applicant’s own evidence.  The applicant does not take issue with these findings.

4. The primary attack on the logic and reasonableness of the Authority’s analysis comes with the matter of the Authority’s finding as to the visit to the applicant’s home by unknown Tamil men after he left Sri Lanka and with the Authority’s references to the Karuna group and the CID.

5. At part [2] of [9] (CB 234) the Authority sought to address the applicant’s own evidence given to the delegate (see CB 192):

   “The applicant was unsure as to the identity of the person who had threatened him on these two occasions stating that he thought it was the CID, SLA or paramilitary group. When the applicant was questioned at PV interview as to who he feared would harm him should he return to Sri Lanka, the applicant stated “very difficult for me to tell exactly who, CID and SLA and paramilitary group”. When the applicant was questioned as to why these people would still be suspicious of him the applicant gave two reasons; because he fled to Australia illegally and because of the previous TNA issues.”

   [Emphasis added.]

6. Further in his statement (CB 76 – CB 79) which accompanied his application for the visa the applicant stated ([15] at CB 78):

   “15. I believe I would be seriously harmed by the armed Tamil men who I believe are members of a Tamil paramilitary group (Karuna) or CID officers as I am a TNA supporter.”

7. In this light the Authority’s reference to the Karuna group and the CID was not irrelevant as the applicant submitted. The Authority simply considered the applicant’s own evidence in this regard.

8. As set out above the applicant submits that the Authority did not consider that the men who threatened the applicant must have been part of some well organised group. However, contrary to the applicant’s submissions the Authority’s analysis at parts [2] and [3] of [9] was directed, in part, to that matter.  The Authority found that “…whichever political opponent of the TNA” threatened the applicant, such an opponent would need to have been organised in both the Eastern and Northern Provinces ([9] CB 234).

9. It found that, on the evidence, it was not satisfied that these men came from the Karuna group or the CID (which were well organised).  This was reasonably open to the Authority given that it was the applicant’s own evidence that the identity of these men was unknown to him (“unknown men”). The Authority’s finding in this regard was reasonably open to it. The specific reference to the CID and Karuna group was appropriate given the applicant’s speculation that the armed men may have come from these groups.

10. What was left therefore of the applicant’s claim and evidence was that he was approached in the Eastern and Northern Provinces by unknown armed Tamil speaking men. The Authority accepted this.  It did not accept that they were from the (organised) Karuna group or CID.  This was also reasonably open to it on what was before it.

11. At part [4] of [9] (CB 234), as the Minister submitted, the Authority addressed a third incident claimed by the applicant. Which was different to those involving the armed men in the Eastern and Northern Provinces.

1. The applicant had claimed that after he left Sri Lanka, unknown Tamil men came to his home asking about him.  The Authority found it was willing to accept that men came to his home, it did not accept this related to his former support of the TNA.

2. Before the Court the applicant directed attention to his statement which accompanied his application for the visa (CB 76 – CB 79).  At [14] (at CB 78) of that statement the applicant said:

   “14. Since arriving in Australia my family members told me unknown Tamil speakers had come in search of me.”

1. The complaint appeared to be that given the other two incidents (which the Tribunal accepted had occurred) it was illogical and unreasonable to find that this visit to his home was not for reason of his former TNA support.  The applicant argues that the Authority did not give reasons for this finding.

2. What immediately emerges is that the applicant’s own claim at [14] (at CB 78) in his statement differs to his claims about being approached in the Eastern and Northern Provinces in a number of ways.

3. In this (third) instance there is no claim by the applicant that the men were armed or that they said anything about his support for the TNA.  The Authority noted this in its analysis. Further it found there was no suggestion that there had been any threat to his family in this incident as there had been when he was approached.

4. Further, on the evidence before the Court it was reasonably open to the Authority to characterise the applicant’s evidence about this as being “vague”.

5. Even further, the Authority’s finding at part [4] of [9] (CB 234) must be read fairly.  The applicant’s bare statement about this third incident, which was not added to before the delegate, is amongst other things, absent any specific temporal focus.  The claim simply is that unknown Tamil speakers came to his home looking for him after he left Sri Lanka.

6. On his own evidence the applicant left Sri Lanka in August 2012.  His statement (containing this claim) was made on 23 December 2015 (CB 76 to CB 79). The vagueness of this claim, which the Authority recognised, includes a vagueness as to when in that intervening three year period these men came looking for him at his home in Sri Lanka.

7. In that light I accept the Minister’s submission that what the Authority considered and found is relevant, on a fair reading, to the finding at part [4] of [9] (CB 234).  That is, in essence, that conditions in Sri Lanka, as shown by current country information, had changed over the intervening period.  It referred to a number of elements in this regard (see [10] of the Authority’s decision record at CB 234).

8. Before the Court the applicant sought to take issue with the Authority’s reference (at [10], CB 234) to a decrease in election violence in Sri Lanka.  The argument was that this was vague, and meaningless, without some precise indication of the degree of decrease. He sought to explain this in submissions with the example of a fall in the Australian dollar.

9. The applicant’s reliance on an approach which depends on some mathematical formula, or statistical standard, does not assist him in revealing illogicality or unreasonableness in the Authority’s decision.

10. Plainly, what the Authority found was that country information revealed such changes in the environment in Sri Lanka in the intervening period, particularly with reference to the TNA and elections (which after all was a critical element in the applicant’s claim to fear harm) were such that it could not be satisfied the applicant would likely suffer harm on return for any pro–TNA political opinion.

11. This was reasonably open to the Authority on what was before it.  There was plainly a probative and logical connection between the country information, the applicant’s circumstances, the passing of time, and its findings.

12. I should note for the sake of completeness that particular g.a. to the ground appeared, ultimately, not to be relied upon by the applicant other than for purposes of providing context to his argument.

13. In any event, contrary to what is asserted at g.a. of the sole remaining ground of the application the Authority did consider the temporal proximity between the first two incidents in which the applicant was approached by the armed Tamil men.  At [5] (CB 233.1) the Authority recorded that the second incident occurred two days after he returned home from the Eastern Province. There is nothing in the Authority’s subsequent analysis to indicate that it resiled from this.

14. Nor did the Authority fail to accept that the two incidents occurred in different Provinces. The applicant’s argument appeared to be that his being approached in two Provinces was significant because there existed the likelihood of some organised targeting of the applicant.  As set out above the Authority considered this aspect of the applicant’s circumstances (see [9] at CB 234).

Conclusion

1. The applicant’s ground is not made out. The application should be dismissed. I will make the appropriate order. 

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  27 March 2019