Ajy17 v Minister for Immigration

[2019] FCCA 1057

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJY17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1057

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority erred in its consideration of relevant country information – whether the Immigration Assessment Authority erred in its consideration of Australia’s complementary protection obligations under s.36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 474

Cases cited:

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006]

FCAFC 29

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996)

185 CLR 259

Minister for Immigration and Citizenship v SZMDS (2011) 240 CLR 611

Applicant: AJY17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSSESSMENT AUTHORITY

File Number:   SYG 280 of 2017

Judgment of: Judge Emmett

Hearing date: 16 April 2019

Date of Last Submission: 16 April 2019

Delivered at: Sydney

Delivered on: 16 April 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Counsel for the Respondents: Mr Nicholas Swan

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 280 of 2017

AJY17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 31 January 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority dated 13 January 2017 (“the Authority”), which affirmed a decision of a delegate of the first respondent (“the Delegate”) made on 31 August 2016 refusing the applicant a Safe Haven Enterprise Visa (Subclass 790) visa.

2. The applicant is a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from the Sri Lankan authorities including the police, Criminal Investigation Department (“CID”), Special Task Force (“STF”) and the Karuna Group.

3. The background and the applicant’s claims and the Authority’s decision are accurately summarised in the submissions of counsel for the first respondent, Mr Swan, as follows.

   “Background and Applicant’s Claims

   2. The Applicant is a citizen of Sri Lanka born in April 1973 (CB 36). He first arrived in Australia in September 2012 as an unauthorised maritime arrival (CB 125). On 11 December 2015, the Applicant applied for the Visa (CB 22-66).

   3. In support of his application, the Applicant raised the following matters (CB 71):

   a. He is of Tamil ethnicity, the Hindu religion, and is from Kalmunai, Sri Lanka (CB 71);

   b. In 2000, he was working in Kalmunai as a tailor. He was approached by the Liberation Tigers of Tamil Eelam (LTTE) and asked to make uniforms for them. He did so a few times a year (CB 71);

   c. In December 2006, 7 officers of the Special Task Force (STF) came to the Applicant’s shop, claimed that he had been making uniforms for the LTTE, and assaulted and arrested him (CB 72);

   d. He was taken to an STF Camp in Kairathivu. There, he was interrogated and tortured. He denied having assisted the LTTE. He was detained for four days and, when released, told he could be shot at any time (CB 72);

   e. He was afraid that the STF would return, so he hid and never returned to his shop. He then discovered that the STF had been to his house looking for him (CB 73);

   f. He fled Sri Lanka in January 2007 but returned in May 2009, at the end of the civil war. He still feared the STF, so he departed again in 2009, but returned in 2012. On his return, he was given a letter from the local Police station requiring him to report to the Crime Branch. The Applicant feared for his safety, so he fled Sri Lanka (CB 73); and

   g. The Applicant fears being harmed by the Army, Police, Criminal Investigation Department (CID), STF and the Karuna Group if he returns to Sri Lanka, including because he might be accused of having links to the LTTE (CB 73).

   4. On 31 August 2016, a delegate of the Minister refused to grant the Applicant the Visa (CB 121-148). On 5 September 2016, the delegate’s decision was referred to the Authority for review (CB 149-150). On 13 January 2017, the Authority affirmed the delegate’s decision (CB 156-173).

   The Authority’s Decision

   5. The Authority accepted that the Applicant was a Tamil Hindu from Kalmunai, Sri Lanka (CB 158 [5]). It also accepted that the Applicant had memory and concentration problems, which had developed as a result of the harm he suffered in 2006. However, the Authority did not accept that the problems it identified with the Applicant’s claims arose from any issues the Applicant had with his ability to recall and provide details, or his concentration (CB 158 [6]).

   6. The Authority accepted the Applicant’s claim that he had provided some tailoring services to the LTTE between 2000 and 2006, but considered that this involvement was “limited to business and [was] low-level”, and also that he and his family did not have any other involvement with the LTTE (CB 158 [7]). The Authority also considered that the Applicant’s release from detention (in 2006) indicated that the authorities were satisfied that the Applicant did not have any additional involvement with the LTTE, and that he was not a fighter or member of the LTTE. The Tribunal was satisfied that the STF visit to his home was no more than routine monitoring, and that there was no ongoing suspicion or concern held by the authorities that the Applicant was involved with the LTTE (CB 159 [8]).

   7. In relation to the Applicant’s return to Sri Lanka in 2009, the Authority observed that there was no evidence of any follow up visits, or other interest in him, from the Police, and also observed that the Applicant was able to re-enter Sri Lanka without incident. On the evidence before it, the Authority did not accept that the Applicant was targeted or sought by, or of adverse interest to, the Police or any other authorities (CB 159 [10]).

   8. In relation to his return to Sri Lanka in 2012, the Authority considered it was not implausible that the Applicant would have been of interest to the authorities, having lived overseas for several years, and that he would have been required to report to the Police on his return (CB 160 [14]). However, the Authority considered the Applicant’s evidence about his attempts to hide from the authorities in 2012 to be “vague and implausible”. The Authority also did not accept that letters relied on by the Applicant did support his claim as to what had occurred to him in 2012 (CB 159-160 [11]-[15]). The Authority also did not accept the Applicant’s claim that, after he departed Sri Lanka in 2012, the Police came looking for him (CB 161 [16]).

   9. On the basis of country information, the Authority found that Tamils were no longer at risk of persecution simply on account of their race (CB 161 [20]). The Authority was satisfied that the Applicant would not be perceived as having engaged in Tamil separatism or activities which would impute him as a threat to the state, and thus would not face harm on this basis. The Authority also did not accept that the Applicant would be suspected of being an LTTE sympathiser (CB 162 [22]).

   10. The Authority was satisfied that the Applicant was not of adverse interest to the Sri Lankan authorities because of any suspected involvement in the LTTE, or for any other reason, at the time he left Sri Lanka, and was also satisfied that he had not subsequently become of interest to them. The Authority was not satisfied that the Applicant would be of adverse interest to the authorities, or that he faced a real chance of harm, on account of his race, origins, gender, previous work for the LTTE, or a combination of these matters. The Authority did not accept that the Applicant had a well-founded fear of persecution on the basis of any imputed LTTE support or links (CB 163 [25]).

   11. The Authority accepted that, on return to Sri Lanka, the Applicant would be identified as a failed asylum seeker who had departed illegally (CB 163 [26]). The Authority was not satisfied that the authorities imputed failed Tamil asylum seekers as being pro-LTTE, or that the authorities would perceive him to be an LTTE sympathiser for this reason (CB 164 [28]). It accepted that the Applicant may be charged under the Immigrants and Emigrants Act for having departed Sri Lanka illegally (CB 164 [29]). It found that, on return, the Applicant would be fined and released or, if he pleaded not guilty, released on his own personal surety (CB 165 [33]). The Authority did not accept that the imposition of a fine amounted to serious or significant harm (CB 165 [33]). The Authority also found that the Immigrants and Emigrants Act was a law of general application that was not applied in a discriminatory fashion (CB 165 [34]). The Authority concluded that, taken individually or cumulatively, the Applicant’s circumstances did not give rise to a real chance of serious harm, and accordingly concluded that he did not satisfy s 36(2)(a) of the Act (CB 166 [36]-[37]).

   12. In relation to the complementary protection criteria, the Authority was not satisfied that the Applicant would suffer a real risk of significant harm on account of his race, gender or origins (CB 167 [41]). The Authority also found that there was not a real risk that the Applicant would suffer significant harm for being imputed as pro-LTTE or for being of adverse interest to the Authorities (CB 167 [42]). The Authority was further not satisfied that any of the steps taken to process the Applicant, or any penalty imposed on him, under the Immigrants and Emigrants Act would amount to significant harm (as defined in s 36(2A) of the Act) (CB 167 [43]-[44]). The Authority therefore did not accept that there was a real risk that the Applicant would suffer significant harm on return to Sri Lanka, and concluded that the Applicant also did not satisfy s 36(2)(aa) (CB 168 [47]).”

4. The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter.

5. On 18 May 2017, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence, and submissions in support. The applicant confirmed he was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language. The applicant also confirmed that he had not filed any further documents in support of his application, either in accordance with those directions or otherwise, and had no further documents to provide to the Court this morning. 

6. I explained to the applicant that the role of this Court is very different to that of the Authority, and that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions.  I explained that this Court is concerned only with whether or not the decision of the Authority was made according to law. I explained to the applicant that if the Authority’s findings and conclusions were open to it on the evidence and material before it, and for the reasons it gave, then the fact that the applicant may disagree with those findings and conclusions may not be sufficient to establish jurisdictional error on the part of the Authority. 

7. The applicant confirmed that he continued to rely on the grounds of his initiating application filed on 31 January 2017. Those grounds are as follows:

   “Ground-1

   The IAA has declined its jurisdiction in reviewing my refugee claims that there is reliable and independent country information before it to evince that an ethnic Tamil in my similar back ground including I paid tailoring work for the LTTE during the war, was detained and was interrogated and was harmed is still at risk of serious harm on arrival and/or in any part of Sri Lanka. Although there is evidence before the IAA that I am at risk of serious harm the IAA failed to make correct finding and evaluation of my central claims. The IAA's finding is inconsistent with the reliable and independent country information before it.

   I will provide further grounds and evidence with particulars of the grounds when this court asks me to file my Amended Application.

   Ground-2

   [T]he Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me pursuant to section 36 (2) (aa).

   Particulars

   The Respondent has declined its jurisdiction as it has failed to consider/take into account the country information and facts before it as DIBP's decision maker has accepted that I will be held on remand whilst the identity, character and security checks are completed. Based on the following country information reports before the decision maker there is a real chance that on my return to Sri Lanka when questioned by the authorities, as all returnees are, my profile and my suspected involvement with the LTTE will come to light and that l face a real chance of more than short term imprisonment and as a consequence mistreatment whilst imprisoned.

   The independent and reliable country information before the decision maker is not indicating with confidence/certainty that a Tamil like me is safe and/or will not be seriously harmed in Sri Lanka.

   The IAA has not considered at all the complementary protection available to me in Australia.”

8. I raised with the applicant that those grounds appeared to be almost verbatim to grounds in respect of another matter that had come before me earlier in April, and I asked the applicant who it was that assisted him with those grounds. The applicant said that the person who assisted him lived next door and was a close friend, however, the applicant could not remember his name. I provided the details of the matter which appeared to have similar grounds to the first respondent.

9. Each of the grounds was interpreted for the applicant, and he was invited to say whatever he wished in support of the grounds. 

Ground 1

1. Ground 1 asserts that the Authority failed to consider reliable and independent country information.

2. In relation to Ground 1, I asked the applicant what was the reliable and independent country information that he asserted that the Authority had failed to consider. The applicant responded that the Authority had accepted all the evidence that he tendered, except for the evidence that he had gone into hiding for three months. The applicant then otherwise restated his claims to fear harm as a tailor in Sri Lanka.

3. A fair reading of the Authority’s decision record makes clear that the Authority did not accept all claims made by the applicant in relation to his risk of harm in Sri Lanka. The Authority noted that the applicant had claimed before the Delegate to have received a letter from the Crime Branch in May 2012, and that he was questioned extensively by the Delegate about the three-month period between receiving the letter and fleeing the country.

4. Ultimately, the Authority identified various concerns that it had with the applicant’s claims and placed no weight on the letter. The Authority found the applicant’s claims regarding the letter and that he was wanted by the police not to be credible. 

5. The Authority referred to other letters provided by the applicant (that it did not ultimately accept) which supported the applicant’s claims that he was wanted by authorities and subject to an arrest warrant before he came to Australia or subsequently. The Authority rejected in terms the applicant’s claims regarding the Crime Branch letter in 2012, and referred to the applicant’s own evidence that he had not committed any crimes. The Authority also rejected the applicant’s claim that police came looking for the applicant after he arrived in Australia.

6. The Authority was not satisfied that the applicant was of adverse interest to authorities on suspicion of any LTTE involvement or for any other reason when he left Sri Lanka, and also found that he had not subsequently become of interest. The Authority comprehensively rejected the applicant’s claims to have a well-founded fear of persecution on the basis of any purported LTTE involvement or links. The Authority did not accept that the applicant was of any interest to any body or person in Sri Lanka after his 2006 release from his four days in detention. 

7. The Authority was not satisfied that the applicant’s profile was such that the applicant would be at risk upon return. The Authority summarised in detail the country information before it relating to the return of failed asylum seekers. The Authority found that the applicant did not have any of the factors that would give him a profile that placed him at risk beyond the usual process involved in failed returned asylum seekers in Sri Lanka. 

8. The Authority accepted that the applicant may suffer discrimination and harassment in Sri Lanka because of tailoring work that he did in the past for the LTTE between 2000 and 2006, but did not accept that such conduct would amount to persecution. The Authority rejected in terms any claim by the applicant that the authorities would consider him to be an LTTE member, supporter or sympathiser, or a threat to the state in any way.

9. Ultimately, the Authority was not satisfied that a person of the applicant's profile would be subject to monitoring or reporting on return. 

10. The Authority also considered whether the applicant met the complementary protection criterion and found that he did not.

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

12. It is well-established that the Authority was not required to accept uncritically any and all claims made by the applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J). Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

13. The country information to which the Authority has regard and the weight that it attributes to that information is a matter for the Authority (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

14. The Authority identified with specificity the country information to which it had regard, and there is no evidence before the Court to suggest that the Authority's assessment and reliance on that information was made other than according to law. The Authority's findings were open to it on the evidence and material before it and for the reasons it gave.

15. It is clear from the summary above, the Authority's credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Authority's findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative basis or unreasonableness, and were not without unintelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (“ARG15”) at [83] per Griffiths, Perry, Bromwich JJ).

1. The Authority accepted the applicant's LTTE involvement was limited to providing paid tailoring services between 2000 and 2006 and that he treated this as a business transaction and still continued his normal tailoring business with other clients. The Authority noted that the applicant did not claim that he or any other member of his family was involved with the LTTE in any way, and was satisfied that the applicant's involvement was limited to business and was low level. 

2. The Authority accepted that the applicant had been detained in 2006, and found that upon release he was given a warning. However, the fact of the applicant’s release indicated that the authorities were satisfied that he did not have any additional involvement with the LTTE. 

3. The principal reason for the Authority's affirming the decision under review was because it was not satisfied that the applicant had a profile in Sri Lanka that placed him at any risk if returned. 

4. As stated above, those findings were open to the Authority for the reasons it gave. 

5. Otherwise, Ground 1 appears to be no more than a disagreement with the findings and conclusions of the Authority. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 (“Abebe”) at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

6. As submitted by the first respondent, disagreement, even emphatic disagreement with the Authority's findings does not establish jurisdictional error (see Minister for Immigration and Citizenship v SZMDS (2011) 240 CLR 611 at [124] per Crennan and Bell JJ).

7. Accordingly, Ground 1 is not made out. 

Ground 2

1. Ground 2 asserts that the Authority failed to consider in full Australia’s complementary protection obligations under s.36(2)(aa) of the Act.

2. The particulars provided in support of Ground 2 asserted that the Authority failed to consider Australia's protection obligations to the applicant and that because of his profile and suspected involvement with the LTTE, he would face a real chance of more than a short term of imprisonment and, as a consequence, mistreatment whilst imprisoned. 

3. Ground 2 also asserts that the country information did not indicate with confidence or certainty that a Tamils such as the applicant would be safe and not seriously harmed in Sri Lanka.

4. I invited the applicant to say whatever he wished in support of Ground 2. The applicant responded that he was still at risk of harm in Sri Lanka as he was suspected of LTTE links and that he would be imprisoned upon his return.

5. As stated above, the Authority went through in great detail the process afforded to failed returned asylum seekers and found that the re-entry procedures are applied without discrimination. The Authority also considered in detail the risk of harm to the applicant as assessed against the complementary protection criterion. The Authority found that in considering the complementary protection criterion, the applicant was not imputed as having a pro-LTTE profile, and was not of adverse interest to authorities for any reason.

6. The Authority found that the applicant’s long-term residences abroad in Saudi Arabia and Australia would not contribute to a chance of harm; and, that the applicant would not face a real chance of harm in relation to any change in the country’s circumstances since he left, such that the applicant would be at risk of significant harm.  The Authority found that on the evidence before it, the applicant would be issued with a fine and released upon return, or if he pleads not guilty, he would be released pending his court date, based on the country information before it. 

7. The Authority also considered the conditions the applicant may face if he was held in a nearby prison while waiting to come before the court, and again was not satisfied that such conduct would involve the applicant in significant harm as defined under s.36(2A) of the Act and s.5 of the Act during his time in detention.

8. Ultimately, the Authority found that having regard to the cumulative circumstances and the profile of the applicant, it did not accept that his profile was such that he would face a real risk of significant harm; and, did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, that there was a real risk that he would suffer significant harm. 

9. As stated above, the Authority’s findings were open to it on the evidence and material before it and for the reasons it gave, and are not without an intelligible justification (see ARG15).

10. To the extent that Ground 2 complains that the Authority erred in relation to its consideration of the country information before it, in that the country information did not indicate with confidence and certainty that a Tamil like the applicant was safe and would not be seriously harmed in Sri Lanka, it was for the applicant to satisfy the Authority that he was owned protection obligations (see Abebe at [187]).

11. Section 65(1)(b) of the Act states that if the decision-maker, in this case the Authority, is not so satisfied, then the applicant must be refused a visa. As stated above, the Authority identified in great detail the country information which it considered, and its relevance to the applicant’s claims.

12. For the reasons referred to above, the assertion in Ground 2 that the Authority has not considered at all the complementary protection available in Australia, such an assertion is not made out.

13. Otherwise, Ground 2 also appears to seek merits review, which this Court cannot undertake. 

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified with great particularity the country information to which it had regard. 

2. The Authority made findings based on the evidence and material before it which were open to it, for the reasons it gave. The Authority reached conclusions based on the findings made by it, and to which it applied the correct law.

3. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. 

4. The Authority’s decision is not affected by jurisdictional error, and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 1 May 2019