Aii19 v Minister for Immigration
[2019] FCCA 2595
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AII19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2595 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Chan v Minister for Immigration (1969) 169 CLR 379 Minister for Immigration v Guo (1997) 191 CLR 559 |
| Applicant: | AII19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 184 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms S Zarucki of Clayton Utz |
INTERLOCUTORY ORDERS
The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 184 of 2019
| AII19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 16 January 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed on 6 September 2019.
On 1 March 2017, the applicant, a citizen of Sri Lanka of Tamil ethnicity and Hindu religion, lodged a valid application for a protection visa.[1] The applicant’s claims for protection are summarised at [6] to [7] of the decision record (DR).[2] In short, the applicant claimed to fear harm from the CID, paramilitary groups and Sri Lankan army and government (the Sri Lankan authorities) because:
a)of his imputed connection to the LTTE,[3] namely, through his brother who left to join the movement and subsequently disappeared and as someone who had grown up in an area where the LTTE had free movement and support;
b)of his political opinion, namely his work (and campaigning) for the Tamil National Alliance (TNA);
c)since being in Australia he has met TNA members of parliament in meetings, engaged with the TNA through social media and attended the Martyrs day commemoration for fallen LTTE;
d)of his Tamil ethnicity; and
e)his return to Sri Lanka would be as a failed asylum seeker.[4]
[1] Court Book (CB) 16 to 66.
[2] CB 106 to 107.
[3] Liberation Tigers of Tamil Eelam.
[4] CB 53 to 57 and 106 to 107.
On 7 September 2018, the delegate refused the applicant’s application for a protection visa.[5] On 19 September 2018, the delegate’s decision was referred to the Authority for review.[6]
[5] CB 81 to 91.
[6] CB 97 to 98.
In written submissions, lodged with the Authority on 4 October 2018,[7] the applicant responded to aspects of the delegate’s decision and extracted three country information reports (Submission). The Authority had regard to the Submission and noted that no further information was obtained or received.[8]
[7] CB 99 to 103.
[8] CB 106, DR at [4].
The Authority noted that the applicant provided three untranslated documents dated 2012 with his protection visa application. [9] The Authority considered whether it ought to exercise its discretion under s.473DC of the Migration Act 1958 (Cth) (Migration Act) to invite the applicant to comment on, or give evidence regarding, the three untranslated documents. The Authority noted, amongst other things, that the applicant was represented by a lawyer in the application process, advised in writing that documents should be translated into English, the documents were not referred to at his interview with the delegate and he had not raised any concerns that the delegate had failed to consider these documents either in post-interview submissions or in any submissions to the Authority. Moreover, and noting that it accepted the applicant’s claims relating to the events in 2012, the Authority was not satisfied that an exercise of its discretion to invite the applicant to comment or give evidence regarding the untranslated documents was warranted.[10] The Authority gave the untranslated documents no weight.
[9] CB 106, DR [5] and CB 63 to 65.
[10] CB 106, DR [5].
Authority's Decision
The Authority considered each of the applicant’s claims against the statutory criterion for whether an applicant had a well-founded fear of persecution. The Authority:
a)accepted the applicant was a male Hindu Tamil who was born and resided in Batticaloa in the eastern provinces of Sri Lanka;[11]
[11] CB 107 to 108, DR [9].
b)accepted the applicant’s claims relating to events occurring in his village in 1991, namely there was an army base in or near his village, his mother, aunt and sister were shot, his family home burned down and he and his siblings resided in a refugee camp;[12]
c)accepted as plausible that the applicant’s brother joined the LTTE in 1993 and that he disappeared and is presumed to have died but doubted the applicant’s evidence that his family was visited by the authorities and questioned in relation to his brother’s activities and whereabouts in light of inconsistencies in his recall and recount of events. Relevantly, in his written statement in support of his protection visa application, the applicant stated that he and his siblings were visited by the authorities on multiple occasions and his sister taken away for questioning and mistreated. At the protection visa interview, the applicant provided a different account stating that the authorities only visited once in 2006 and he made no mention of his sister being taken away for questioning;[13]
d)noted that the applicant had no difficulties travelling to and from Qatar on his genuine passport between 2007 and 2012 and did not claim to have experienced adverse attention from the authorities in the three month period when he returned home from Qatar in 2011. These factors indicated that the applicant was not of any interest to the authorities for any reason including any association with his brother in that period;[14]
e)having regard to the identified concerns cumulatively, found that the applicant did not have an adverse profile and was not of any on-going interest to the authorities due to any familial connection to the LTTE and that he would not be of interest to the authorities on return to Sri Lanka;[15]
f)accepted that the applicant had the opportunity to undertake claimed election campaign activities in 2012 (despite being primarily resident in Qatar from December 2007 and June 2012) and attended protests.[16] It considered as plausible that the applicant was harassed at checkpoints and that the authorities visited his home on four occasions when he was out, asking him to meet with them and that the applicant did not do so and left the country;[17]
g)accepted the applicant’s political activities in Australia but noted that he had not claimed to have led or organised events in the past in Sri Lanka or in Australia and found that he would not do so on return to Sri Lanka. As such, it found that his profile is and will be in the future as a participant rather than a leader or organiser of events;[18]
h)placed no weight on the two letters submitted in support of the applicant’s claim to fear harm on the basis of his political involvement. One letter did not contain any letterhead, was undated, made no reference to the TNA, did not support the applicant’s claim to have worked for that party and the author was not the same person the applicant campaigned for. The second letter made no reference to the applicant’s claimed participation in the election campaign and made statements different to the applicant’s own evidence, namely, that the applicant had a “life threat” by an “unidentified person” for a “long time”. However, the applicant’s own evidence was that he was sought by people from the CID or paramilitary group on up to four occasions and that they did not threaten him but asked him to meet with them;[19]
i)was not ultimately satisfied that the applicant would face a real chance of serious harm on return to Sri Lanka.[20] In reaching this conclusion, the Authority had regard to country information which indicated that the situation for Tamils in Sri Lanka had improved significantly since the applicant’s departure and further noted that political involvement of Tamils (including members of the TNA) was encouraged and political dissent more tolerated than it had been in the past.[21] Relevantly, being of Tamil ethnicity, a Tamil male, residing in an area previously controlled by the LTTE, does not of itself impute LTTE membership, a pro-LTTE opinion or any other adverse political opinion;[22]
j)found that, as a failed asylum seeker, the applicant may be held at the airport in custody by the authorities upon arrival in Sri Lanka and interviewed but was not satisfied that this processing would result in treatment amounting to serious harm. Further, while the applicant may be visited and receive calls and be monitored on return, having regard to his profile, it was not satisfied that that would amount to serious harm of the kind contemplated by the Migration Act;[23]
k)accepted that the applicant would be charged for departing Sri Lanka illegally and fined but that the applicant will be able to pay any fine issued to him even by instalments.[24] In any event, the Authority found that the investigation, prosecution and punishment for illegal departure under the Sri Lankan Immigrants and Emigrants Act would be the result of a law of general application and does not amount to persecution.[25]
[12] CB 108, DR [11].
[13] CB 108 to 109, DR [12] to [13].
[14] CB 109, DR [14].
[15] CB 109, DR [15].
[16] CB 109, DR [16].
[17] CB 110, DR [19].
[18] CB 110, DR [20].
[19] CB 109, DR [17]-[18].
[20] CB 119, DR [53].
[21] CB 111 to 114, DR [26]-[33].
[22] CB 114, DR [34].
[23] CB 115 to 116, DR [40] to [43].
[24] CB 118, DR [50].
[25] CB 118, DR [51].
Regarding the complementary protection criterion, the Authority found, by reference to each of the applicant's claims individually and cumulatively, that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm because of the claims that he made and which were assessed.[26]
[26] CB 119 to 121, DR [58] to [66].
The present proceedings
These proceedings began with a show cause application filed on 30 January 2019. The applicant continues to rely upon that application. The three grounds in it are:
IAA did not consider the effect of the Applicant's political activism with the TNA - a party which is covertly supportive of the LTTE. (Ground 1)
Authority did not take into account the country situation as LTTE suspects are still persecuted. (Ground 2)
Authority did not apply the well-founded fear test to Applicant's situation as Applicant was previously suspected of LTTE involvement because of familial connections. (Ground 3)
The application is supported by a short affidavit filed with it which I have received. I also have before me as evidence the court book filed on 2 April 2019.
Only the Minister filed pre-hearing written submissions in this case. I invited oral submissions from the applicant. He said very little. He stated that the Authority found there were no problems in Sri Lanka with which he disagrees. As I pointed out to him, that is, in my view, a misdescription of what the Authority found. The Authority did not dispute that there are continuing problems in Sri Lanka.[27] However, the Authority was not persuaded that the applicant would himself face a real risk or real chance of serious or significant harm.
[27] See in particular [33] at CB 114
The applicant made no other submissions.
The grounds in the application are addressed in the Minister’s written submissions. I agree with those submissions and adopt with any necessary amendments from [13] through to [29] of them.
Ground 1
A failure to consider a “relevant” consideration only constitutes jurisdictional error if the proper construction of the statute indicates that the decision-maker was required to consider the relevant matter in making the decision.[28] Similarly, consideration of an “irrelevant” consideration will only constitute jurisdictional error where, on the proper construction of the statute, the decision-maker was prohibited from considering the relevant matter.[29] In either case, relief will only be granted if the error was capable of materially affecting the decision.[30]
[28] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42.
[29] Ibid.
[30] Ibid.
The applicant’s contention that the Authority failed to consider the threat of harm based on his political activism with the TNA both in Sri Lanka and in Australia is without merit and fails to establish jurisdictional error.
Contrary to the applicant’s assertion, the Authority considered the applicant’s political activism with the TNA. The Authority accepted that the applicant participated in some anti-government marches, campaigned for the TNA in the 2012 election, had undertaken political activities in Australia including attending a martyrs’ day event, TNA meetings and engaged with the TNA on social media. It also accepted that the CID and/or a paramilitary organisation acting on behalf of the authorities visited his home.[31] However, the Authority had regard to independent country information which indicated that the situation for politically active Tamils had improved significantly since the election of the Sirisena government. Tamils have increased political participation and only those with certain profiles (which the applicant did not hold) are of interest to the authorities.[32] On the basis of that information and its finding that the applicant was not a high-profile member of the TNA or involved in separatist activities, the Authority was not satisfied that the applicant would face serious harm on the basis of his political involvement.[33]
[31] CB 114, DR [36].
[32] CB 114 to 115, DR [32], [36] to [38].
[33] CB 115, DR [36] to [38].
It is well established that the selection of country information, and assessment of the weight to be placed upon it, are matters for the decision-maker in the Authority’s position.[34] No error is established by the Authority’s selection and treatment of country information.
[34] NAHI v Minister for Immigration [2004] FCAFC 10, [11]; QAAT v Minister for Immigration (2005) 149 FCR 299, 311.
Otherwise, the Authority’s findings were open on the evidence before it for the reasons it gave.
Ground 2
The applicant’s contention that the Authority failed to consider the “country situation” (which entails an assertion that LTTE suspects continue to be persecuted by the authorities) is without foundation and fails to establish jurisdictional error.
The Authority canvassed an expansive array of relevant country information regarding the current political climate in Sri Lanka and the implications of political activism (including reports noting that the TNA was well-represented in the Sri Lankan parliament, official discrimination on the basis of ethnicity was constitutionally prohibited and in respect of people with real or perceived links to the LTTE).[35] In particular, the Authority had regard to a 2017 report from the UK Home Office which considered that international protection would only be warranted for individuals with a profile as significant LTTE members including leaders of post-conflict separatist movements and instigators of a renewal of hostilities between the government and Tamil groups.[36]
[35] CB 111 to 114, DR [26] to [34].
[36] CB 113, DR [31].
The selection of country information, and assessment of the weight to be placed upon it, are matters for the Authority.[37] No error is established on the basis of the Authority’s consideration of independent country information including in regard to the risk of harm to persons that are LTTE suspects.
[37] NAHI, [11]; QAAT, 311.
Further and in any event, the Authority was not satisfied that the applicant was suspected of being affiliated with the LTTE. Having regard to the inconsistencies in the applicant’s evidence regarding his purported harassment by the authorities and his ability to travel to and from Qatar on his genuine passport without difficulty, the Authority did not accept that the applicant had an adverse profile and was of any adverse interest to the authorities and would not be of any interest to the authorities on return to Sri Lanka.[38]
[38] CB 108 to 109, DR [13] to [15].
As with Ground 1, the Authority’s findings in this context were open on the evidence before it for the reasons it gave.
Ground 3
The applicant’s contention that the Authority erred because it failed to apply the well-founded fear test to his circumstances misconstrues the Authority’s reasons and fails to establish jurisdictional error.
The “real chance” test is an essential component of the “well-founded fear of persecution” test in s.5H(1) of the Migration Act. “Real chance” means there must be a “substantial, as distinct from a remote chance” of that persecution occurring.[39]
[39] See s.5J(1)(b) of the Migration Act; Chan v Minister for Immigration (1969) 169 CLR 379, 389.
As the plurality explained in Minister for Immigration v Guo:[40]
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[41]
[40] (1997) 191 CLR 559.
[41] Guo, 575.
Determining whether a “real chance” of persecution exists involves “making findings as to primary facts, identifying the inferences which may properly be drawn from [them] and then applying those facts and inferences to an assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned” to Sri Lanka.[42]
[42] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 294.
This was the process which the Authority properly adopted in the present case. The Authority set out the appropriate statutory test,[43] considered the applicant’s evidence in his protection interview and written statements, and assessed his claims in a fulsome manner, including by reference to relevant country information.[44] However, the Authority observed a number of inconsistencies in the applicant’s evidence that led it to reject his claim to be of adverse interest to the authorities as a result of familial connections with the LTTE.[45]
[43] CB 110 to 111, DR [23] to [24].
[44] CB 111 to 119, DR [25] to [52].
[45] CB 108 to 109 and 114, DR [13] to [15], [35].
It is well-established that the Authority is not obliged to uncritically accept the claims made by applicants,[46] and is not required to have regard to rebutting evidence before holding that a particular assertion is not made out.[47] Further, and in any event, the Authority had regard to multiple authoritative sources of independent country information which indicated that only individuals who had prominent LTTE profiles or were involved in separatist activities might be at risk of serious harm in Sri Lanka.[48] The applicant in the present case did not have such a profile. The Authority’s conclusion in this respect is fatal to his application.
[46] Guo, 596; Randhawa v Minister for Immigration (1994) 52 FCR 437, 451.
[47] Selvadurai v Minister for Immigration (1994) 34 ALD 347, 348.
[48] CB 112 to 113, DR [30] to [31].
The Authority understood and applied the relevant test of whether the applicant had a well-founded fear of harm.
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. The decision is therefore a privative clause decision. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 September 2019
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