Ahv19 v Minister for Immigration

[2020] FCCA 378

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHV19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 378

Catchwords:
MIGRATION –Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to properly consider the applicant’s claims and materials – whether the Authority made contradictory findings in relation to the applicant’s claims – whether the Secretary’s failure to provide material under s 473CB of the Migration Act 1958 (Cth) affected the Authority’s decision – no jurisdictional error made out – third further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476

Cases cited:

AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222

Applicant: AHV19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 171 of 2019

Judgment of: Judge Street

Hearing date: 24 February 2020

Date of Last Submission: 24 February 2020

Delivered at: Sydney

Delivered on: 24 February 2020

REPRESENTATION

Solicitors for the Applicant: Mr D Taylor
Sydney West Legal Migration

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Leave is granted to the applicant to rely upon the third further amended application in the form annexed to the applicant’s submissions filed on the 29 January 2020 and the Court directs the applicant’s solicitor to file and serve the third further amended application so described in the form annexed to the applicant’s submissions on or before the 28 February 2020.

2. The third further amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $15,000.00.

4. There is to be no publication of any reference in the transcript to the pseudonym that was used by reference to the applicant’s [REDACTED] and that pseudonym is to be substituted by the letter “X”.

5. Subject to further order, the transcript of the oral published reasons is the subject of a suppression order under sections 88G(1)(a) and (c) of Part 6A of the Federal Circuit Court of Australia Act 1999 (Cth) prohibiting publication of so much of the reasons as may tend to reveal the identity of the applicant or “X” and the duration of this order is for seventy years from the date of this order.

6. An unredacted copy of the settled transcript of published oral reasons will be provided to the applicant and the first respondent to facilitate exercise of appellant rights if an appeal is lodged. .

DATE OF ORDER: 24 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 171 of 2019

AHV19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. 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 pt 7AA of the Act made on 4 January 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Sir Lanka and his claims were assessed against that country. The applicant was found to be of Tamil ethnicity and the Hindu faith from a particular district in the northern province of Sri Lanka. 

3. The applicant arrived in Australia as an unauthorised maritime arrival on 29 August 2012. On 22 August 2016, the applicant applied for a Safe Haven Enterprise visa.

4. In summary, the applicant claimed to fear harm due to his Tamil ethnicity, an imputed political opinion or support for the LTTE relating to his and his family connections with the Liberation Tigers of Tamil Eelam (“the LTTE”), his potential status as a failed asylum seeker upon return and due to his privacy being breached in the website data breach in 2014. [REDACTED]. 

5. In support of the applicant’s application for protection, he provided a copy of a statement dated [REDACTED]. Relevantly, in that statement, the applicant made reference to the making of an LTTE training video.  The applicant also asserted that in about 2007, a number of people who had appeared in the LTTE training video were killed. The applicant alleged that about seven of these people were killed in six to seven months. The applicant alleged in the statement: “one of these men (M) was shot dead in front of me; the person that shot him was wearing plain clothes: I suspect he was a member of the SLA or CID.” The applicant further alleged that about a month later, he saw dead bodies of another two of the men from the video by the side of the road. The applicant claimed he feared he would suffer the same fate.

6. On 22 August 2018, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa interview. That interview with the Delegate was put into evidence before the Court. In that interview, the applicant recanted from his assertion in his statement that he saw one of the persons who made the video being shot, articulating the obvious implausibility that if that had occurred and he had seen it, he would have been shot too. The Delegate accepted that it was plausible that the applicant appeared in the LTTE training video. However, the Delegate found the applicant failed to meet the criteria in the grant of the visa.

7. On 27 August 2018, the Authority wrote to the applicant explaining that the application had been referred to the Authority on review. The letter 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 new information and submissions that were referred to by the Authority and considered in accordance with the requirements under s 473DD of the Act. 

8. The Authority referred to the background to the applicant’s Safe Haven Enterprise visa application. The Authority had regard to the information given by the Secretary under s 473CB of the Act. The Authority also took into account the applicant’s post-interview submissions.

9. [REDACTED] 

10. In those submissions dated 18 September 2018, there was also reference made to country information that included the DFAT country report referring to close relatives of high profile former LTTE members who were wanted by the Sri Lankan authorities being exposed to the possibility of monitoring.

11. The Authority summarised the applicant’s claims. In particular, the Authority referred to a claim by the applicant that in 2007, seven people who had appeared in the LTTE training video were killed within a six to seven month period and that the applicant had seen dead bodies of three of the people who had been killed. The Authority correctly identified that in the applicant’s written statement, the applicant had stated that one of the three men, M, was shot dead in front of him, and that the person who shot him was wearing plain clothes. The Authority then referred to the applicant’s claim advanced in relation to later seeing dead bodies of another two men from the video. The Authority made express reference to the applicant having been questioned about witnessing a shooting of him and the applicant maintaining that he was not there when it occurred. The Authority also referred to the applicant’s claim that if he had seen the shooting at the time, he would also have been shot. The Authority identified the unsatisfactory explanation for the clear inconsistency in the written statement that M had been shot in front of the applicant by a person wearing plain clothes. The Authority made a finding that the applicant had contrived the explanation to overcome the illogicality of his claim that he witnessed the shooting of M. The Authority further considered it implausible that if the reason for the shooting of the seven people was because they appeared in the LTTE training video, that the applicant would have been able to avoid the same fate as those people given that he had appeared in that video. In these circumstances, the Authority found the applicant’s claim to be exaggerated, speculative, and made by the applicant to further his claims for protection. The Authority did not accept that claim.

12. The Authority accepted as plausible the applicant’s claim that, in 2007, he had been kidnapped and released by the members of the former paramilitary Karuna Group. The Authority did not accept it was plausible that the applicant would have been released by the Karuna group because his wife came looking for him and requested his release. The Authority accepted that the applicant was beaten and mistreated over the two hours that he was interrogated about LTTE involvement by the Karuna Group. The Authority also accepted that the applicant was released the next day. The Authority was satisfied that the applicant was released because he was of no further interest as an LTTE suspect. 

13. The applicant referred to an incident in which a six year old girl was kidnapped and killed. The Authority found the applicant to have a convincing account of having been implicated in this incident on account of the Karuna Group blaming auto drivers for the incident. The Authority accepted that the applicant was unfairly implicated. The Authority was satisfied that this was a one off incident and that the applicant was not himself specifically targeted. 

14. The Authority was prepared to accept that the applicant was kidnapped on one occasion by the Karuna Group and held until his family paid for his release. The Authority considered the incident to be a random, opportunistic criminal act by the Karuna Group members that was not related to any real suspicions of the applicant as an LTTE member. 

15. The Authority referred to the applicant's claims of being required to present himself to the Criminal Investigation Department (“the CID”) around May of 2012. As the applicant was released on the same day, the Authority did not accept that the CID had any real suspicions that the applicant was involved in the LTTE despite any accusations made during the interrogation. The Authority did not accept that the CID questioned the applicant about the seven men from the LTTE training video that had been killed. The Authority did not accept it is plausible that any such video had come to the attention of the CID, particularly some years after the event and in circumstances where the applicant had not been previously identified as an LTTE suspect of any adverse interest. The Authority did not accept that the CID questioned the applicant about the video or the killing of the seven men in that video. 

16. The Authority did not accept that any Sri Lankan authorities had any real suspicions that the applicant was involved or supported the LTTE. The Authority took into account that the applicant has not claimed that he was ever detained by the CID or the SLA. The Authority found that the applicant had never been detained under the Sri Lankan Prevention of Terrorism Act (“the PTA”) in the immediate post-war period, indicating that the applicant was not perceived to be a threat because of his LTTE training or for any other LTTE reasons. 

17. The Authority referred to the applicant’s familial links to the LTTE. The Authority referred to the applicant’s claims concerning his cousin, J. The Authority accepted that J had served as a cadre with the LTTE and died in fighting shortly after joining the LTTE.

18. The Authority referred to the applicant’s claims concerning his younger brother, P, who worked in an LTTE-owned grocery shop. The Authority accepted as plausible that P had fought for the LTTE in the final stages of the war, and to that extent, he was an LTTE cadre. The Authority accepted as credible that after the war, P was sent to a rehabilitation camp, having fought for the LTTE in the final stages of the war. The Authority accepted that after the rehabilitation, P fled [REDACTED]. The Authority also accepted that the applicant’s other younger brother, S, [REDACTED]. 

19. The Authority accepted that the applicant left Sri Lanka illegally. The Authority was satisfied that, at the time the applicant left Sri Lanka in August of 2012, he was not of any adverse interest to the Sri Lankan authorities for LTTE or other reasons. 

20. The Authority did not accept that on 1 February 2013, members of the CID burned the applicant’s three-wheeler. The Authority did not accept the applicant’s claim in relation to fearing registration of the vehicle in his own name. The Authority found it more likely that any damage to the three-wheeler was an isolated act and that the applicant had made his claim to elevate his profile as a person of interest to the authorities. 

21. The Authority accepted that there was a release of the applicant’s personal information through the data breach in 2014. 

22. The Authority accepted the applicant had attended some events in Australia and provided some limited assistance in respect of Tamil organisations.

23. The Authority referred to the applicant’s claim that his brother-in-law threatened to expose him to the CID when he returns to Sri Lanka on account of the marriage breakdown. 

24. [REDACTED]

25. [REDACTED]

26. [REDACTED]

27. [REDACTED]

28. [REDACTED]

29. [REDACTED]

30. The Authority found that the applicant does not face a real chance of serious harm from the Karuna Group or any paramilitary groups upon his return to Sri Lanka now or in the reasonably foreseeable future. 

31. The Authority was not satisfied that the recent parliamentary events and associated reaction within Parliament and the community or any ongoing political changes as contended by the applicant would result in a real chance of harm to the applicant, given his personal profile and his circumstances. 

32. The Authority referred to the country information and was satisfied that the situation with Tamils had significantly improved since the applicant came to Australia.

33. The Authority did not accept that the applicant would be perceived to have a profile of concern to the authorities. The Authority was not satisfied that the applicant’s past LTTE training and the incidents of harassment he has experienced from authorities in Sri Lanka indicate that the authorities would now or in the reasonably foreseeable future have an adverse interest in the applicant. 

34. The Authority referred to the applicant’s links to the LTTE through his brother and cousin and was not satisfied that his family links to these persons would elevate his profile as a person of interest to the Sri Lankan authorities. 

35. [REDACTED]

36. [REDACTED]

37. [REDACTED]

38. The Authority found the chance of the applicant now, or in the reasonably foreseeable future, being perceived or imputed as having LTTE links due to his Tamil ethnicity is remote. 

39. [REDACTED]

40. The Authority made reference to the applicant’s particular circumstances and profile and the changed circumstances. The Authority was satisfied that the applicant does not face a real chance of harm now or in the reasonably foreseeable future for reasons of his Tamil ethnicity and/or origin and residence in the former LTTE controlled area, or because of his former LTTE links or interactions with the LTTE, or because of any familial links to the LTTE, [REDACTED]. 

41. The Authority was not satisfied that the applicant has a real chance of harm or any threat made by his former brother-in-law to report him to Sri Lankan authorities, even if such threat is carried out. 

42. The Authority referred to the applicant returning as a failed asylum seeker who departed Sri Lanka illegally and found that the applicant would be subject to routine investigation processes. The Authority found there was no credible evidence to indicate that the applicant has any outstanding criminal matters, or that he is trying to conceal his identity due to any criminal or terrorist background or trying to avoid outstanding orders or arrest warrants or that he would be perceived as attempting to do so. The Authority was satisfied that through such investigation of the applicant’s profile and history, it will be determined that he was not a former LTTE member, LTTE supporter or sympathiser and that he is not of any adverse interest on account of any LTTE links or implications or that he is a separatist, terrorist or a person who would otherwise threaten the integrity of the Sri Lankan state. [REDACTED]. 

43. The Authority expressly referred to the 2018 Department of Foreign Affairs and Trade (“DFAT”) report, including in its footnotes. The Authority noted from the DFAT report that the Sri Lankan government had reportedly decreased systematic surveillance of returnees.

44. The Authority was satisfied that any visits or further checks the applicant receives from authorities on return to his home area will be low level routine monitoring, common to all returnees when they initially return, and will not involve or otherwise lead to serious harm.

45. The Authority was not satisfied that any social stigma the applicant may experience or any challenges in re-settling on his return amounts to serious harm. 

46. In relation to the applicant’s illegal departure, the Authority found that he could pay a fine for the same. The Authority did not accept that any surety imposed or the imposition of a fine or any other cost associated with a Court appearance would constitute serious harm. The Authority was satisfied the applicant would have the support of his wife and other family members to assist him with any fine that was imposed, and that there is nothing to indicate he would not be able to earn a livelihood upon return. 

47. The Authority found the process to which the applicant would be subject for breaching the relevant Immigrants and Emigrants Act 1949 (Sri Lanka) provisions would be the result of a general application that applies to all Sri Lankans who depart Sri Lanka illegally and does not amount to persecution for the purposes of s 5H(1) and s 5J(1) of the Act.

48. The Authority was not satisfied that the applicant faces a real chance of persecution arising from the circumstances he may face in returnee processing, nor from the processes and consequences arising from his illegal departure, now or in the reasonably foreseeable future. 

49. The Authority found that the applicant does not have a well-founded fear of persecution. 

50. The Authority found the applicant did not meet the requirements of the definition of “refugee” in section 5H(1). The Authority found that the applicant did not meet the criteria in section 36(2)(a).

51. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka there is a real risk that he would suffer significant harm. The Authority found that the applicant did not meet the requirements of s 36(2)(aa) of the Act.

52. Accordingly, the Authority affirmed the decision under review.

The grounds

1. The grounds in the application are as follows:  

   The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that:

   1.   The Authority misunderstood and failed to address a claim made, or arising squarely on the materials, or made legally unreasonable findings relating to, the claims made by the applicant of fear of harm from the Sri Lankan authorities [REDACTED].

   [REDACTED]

   2.   The Authority’s rejection of the KA relationship claims set out in Ground 1 was unreasonable for illogicality in that a basis for the rejection of these claims: [REDACTED]

   [REDACTED]

   3. The Authority’s statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate’s decision miscarried because of the failure of the third respondent Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act.

   Particulars

   a. The Secretary did not, at the time the delegate’s decision was referred to the Authority, consider or form a view on the relevance to the review of certain documents falling within the description of ‘other material’ in s 473CB(1)(c) then in the Secretary’s possession and control.

   b. [REDACTED]

   c. These documents were not before the delegate and were not part of the domain of documents considered by the Secretary at the time of referral of the delegate’s decision.

   [REDACTED]

1. Mr Taylor, solicitor on behalf of the applicant, dealt first with ground 3, and then with grounds 1 and 2. It is convenient to take the same course in relation to addressing the arguments that have been advanced. 

Ground 3

1. [REDACTED]

2. In paragraph 72 of the Full Court’s reasoning in AUF18, there was evidence in relation to these matters adduced before the Court. [REDACTED]. The critical issue for the Court in these circumstances was the materiality or the failure to take reasonable steps in respect of the information and whether the relevant information could realistically have given rise to a different outcome in the review. 

3. Mr Taylor advanced an argument firstly that the recording would have assisted the applicant in relation to his credibility because of an omission to make any reference to an assertion that he advanced in his statement that he witnessed the shooting. Mr Taylor further advanced that the transcript itself identifies the applicant seeking to recant from the proposition that he witnessed the shooting, although not by reference to his statement. That recanting is, in substance, identical to the recanting that was identified in the applicant’s interview for the Safe Haven Enterprise Visa. There is nothing that the Court was taken to in the transcript of the recording which could be said to be material to the reasoning of the Authority.

4. Mr Taylor sought to focus upon the Authority’s reasons concerning the incident involving the alleged shooting of those who participated in the video. [REDACTED]. That was a logical and rational consideration for the Authority to take into account. It does not identify any basis upon which it could be said that the recording that identified a similar recanting could in any way be said to be material, nor was the omission of the positive assertion that the applicant witnessed the shooting capable of being said to be material in the circumstances of the present case.

5. The failure to provide the material, [REDACTED], in the circumstances of this case, could not realistically have given rise to any different outcome in the review. The applicant did not lose the possibility of a different outcome by reason of the breach of s 473CB by the Secretary.

6. In the circumstances of the present case, no jurisdictional error as alleged by ground 3 is made out. 

Ground 1

1. In relation to ground 1, [REDACTED]

2. [REDACTED]

3. The proposition that the Authority failed to take into account country information, including paragraph 3.59 of the DFAT report in respect of the potential monitoring of the applicant, is also completely inconsistent with the express reference by the Authority in its reasons to the applicant allegedly facing a real risk of serious harm or significant harm in relation to monitoring. The Authority’s reasons clearly reflect detailed consideration of the relevant DFAT report. The express reference in para 71 of the Authority’s reasons to the proposition that the applicant may be monitored is directly inconsistent with the submissions advanced that this was not the subject of consideration. 

4. No jurisdictional error as claimed in ground 1 is made out. 

Ground 2

1. Ground 2 is a reformulation of ground 1, alleging contradictory findings in respect of the Authority’s reasons. [REDACTED]. 

2. [REDACTED]

3. For the reasons already given, it is apparent that the Authority did take into account the DFAT country information, including para 359 of the DFAT report, as the Authority expressly referred to monitoring.

4. The jurisdictional error alleged in ground 2 is not made out.

5. As the third further application fails to make out any jurisdictional error, the third further amended application is dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the transcript of the published oral reasons for judgement of Judge Street delivered in open Court on 24 February 2020 and the parties were provided sealed copies of the Court’s orders.

Associate: 

Date: 30 April 2020