AKQ17 v Minister for Immigration

[2017] FCCA 1281

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKQ17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1281

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority failed to deal with the applicant’s claims – whether the Authority erred in its construction of the term “intentionally inflicted” – no jurisdictional error made out – application dismissed.

Legislation:

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

Immigrants and Emigrants Act 1949 (Sri Lanka)

Cases cited:

SZTAL v Minister for Immigration & Border Protection 243 FCR 556

Applicant: AKQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 298 of 2017

Judgment of: Judge Street

Hearing date: 15 June 2017

Date of Last Submission: 15 June 2017

Delivered at: Sydney

Delivered on: 15 June 2017

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

On a direct access basis

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to rely upon the amended application attached to the applicant’s submissions filed on 31 May 2017 and the Court dispenses with the need for the electronic filing of a copy.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 298 of 2017

AKQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 Part 7AA made on 6 January 2017, affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country.

Claims for protection

1. The applicant was found to be a Tamil Christian from the Eastern Province. The applicant claimed to fear harm from the Sri Lankan authorities and by reason of having departed Sri Lanka illegally and as a returned failed asylum seeker. The applicant travelled to Dubai in 2002 and worked in Dubai until 2005. In 2007, the applicant claimed that the grocery store where he worked was damaged by the Sri Lankan Army and that he lodged a complaint. The applicant alleges that he was subsequently assaulted and that the army destroyed his store and assaulted his wife.

2. The applicant alleges that since then he had been arrested and detained by authorities and that he feared that he was of adverse concern to them on the basis of having lodged the complaint. The applicant travelled lawfully to India in May of 2012 and returned to Sri Lanka. The applicant arrived in Australia by boat on 10 October 2012. The applicant lodged his application for a Safe Haven Enterprise visa on 2 March 2016.

3. On 7 September 2016, the delegate refused to grant the applicant a protection visa and found that the applicant failed to meet the criteria under the Act. The applicant was found not to be an excluded fast-tracked applicant.

The Authority’s decision

1. On 13 September 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter explained that the Authority could only receive new information in limited circumstances. The letter also attached a fact sheet and Practice Direction and gave the applicant an opportunity to put on submissions and new information.

2. In the Authority’s decision dated 6 January 2017, the Authority identified the background to the applicant’s application and stated that the Authority had regard to the material referred under s.473CB of the Act.

Refugee assessment

1. The Authority set out the applicant’s claims for protection including the reference to the applicant saying that, since arriving in Australia, his wife advised him that the Sri Lankan Army and the CID had been looking for the applicant. The applicant alleges that the army advised his wife that they knew he was in Australia and, upon return, will detain him because of the complaint made to them in 2007.

2. The Authority identified the relevant law. The Authority accepted that the applicant would have been questioned by Sri Lankan authorities on a number of occasions during roundups in his local area and that he was questioned while he travelled through Sri Lanka, but that on each occasion the Authority found the applicant was released because he  was not of interest to the authorities. The Authority explained that because of inconsistent evidence, the Authority did not accept that the applicant was arrested for up to one month at a time.

3. The Authority noted that the applicant had stated in his Safe Haven Enterprise visa interview that he had never had any problems during his encounters with the authorities in obtaining passports or traveling in or out of Sri Lanka. The Authority was not satisfied the Sri Lankan authorities had any ongoing interest in the applicant prior to him departing Sri Lanka on the basis of lodging a complaint or being perceived to having real or imputed links to the LTTE, for being a Tamil from the East, or for any other reason.

4. The Authority referred to country information since the applicant’s departure from Sri Lanka. The Authority noted on the applicant’s own evidence that he has been involved in roundups and having been held for short periods of time that he was released as he was not of interest to the authorities. The Authority made a finding that the Authority did not accept the applicant’s claim that his life will now be at risk on this basis.

5. The reference to this basis is clearly a reference to the applicant’s complaint and his fear in relation to the authorities. The Authority did not accept the applicant was forced to go into hiding between 2007 and 2012 and noted that the applicant had travelled lawfully to India in May 2012 at a time that he claimed to be in hiding.

6. The Authority made reference to the applicant’s illegal departure and accepted the applicant may be questioned upon return on the basis of departing Sri Lanka illegally. The Authority was not satisfied the applicant will face any harm upon return to Sri Lanka on the basis of being a Tamil from the Eastern Province or for being perceived to have links to the LTTE or for lodging a complaint against the authorities in 2007. The Authority was not satisfied that there is a real chance the applicant will face any harm on that basis now or in the reasonably foreseeable future.

7. The Authority was not satisfied there was a real chance the applicant will face harm from any paramilitary groups now or in the reasonably foreseeable future.

8. The Authority found that there is no credible evidence to indicate that the applicant will be questioned or harmed on the basis of his scars upon return to Sri Lanka and was not satisfied that there was a real chance of serious harm on the basis of the applicant’s scars now or in the reasonably foreseeable future.

9. The Authority found that if the applicant pleads guilty to departing Sri Lanka illegally, he will be required to pay a fine and will subsequently be released, and that if he pleads not guilty, he will be released on his own personal surety. The Authority accepted, as the applicant departed Sri Lanka illegally, that he will be required to pay a fine, or, in the alternative, he will be released on his own personal surety. However, the Authority was not satisfied that this amounts to serious harm, and the authorities were not satisfied that the payment of the fine, being released on personal surety, being held in detention for a short period and questioned cumulatively amounts to serious harm.

10. The Authority found that the process and treatment to which the applicant would be subject under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the I&E Act”) is not discriminatory on its face, nor is it applied in a discriminatory manner. The Authority found it was a law that applies to all Sri Lankans and that a generally applicable law will not constitute persecution because the application of the law does not amount to discrimination. The Authority found that such treatment of the applicant upon return under the I&E Act was not persecution within the meaning of s.5J(4) of the Act.

11. The Authority did not accept that the applicant was of adverse interest to the Sri Lankan authorities and did not accept that he had a risk profile requiring monitoring. The Authority was not satisfied the applicant has a well-founded fear of persecution as a failed Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future. The Authority was not satisfied the Sri Lankan authorities will pursue the applicant once he returns to his home area on this basis and was also not satisfied the applicant, being a Tamil, having previously sold groceries to the LTTE, being from his place of origin, the Eastern Province, and/or the previous complaint made to the authorities in relation to the grocery store considered individually or cumulatively will enhance the treatment received by the applicant from the authorities upon return to Sri Lanka.

12. It was in these circumstances the Authority made a finding that the applicant did not meet the requirements of the definition of refugee in s.5H(1) and did not meet the criteria under s.36(2)(a) of the Act.

Complementary protection assessment

1. The Authority then turned to the issue of complementary protection and accepted that the applicant worked in a grocery store and sold groceries to the LTTE and that he had been held by the authorities during roundups, but that he was released on each occasion as he was no longer of interest to the authorities and has never been suspected of having any real or imputed links to the LTTE.

2. The Authority noted that it had found that there was no real chance that the applicant would face harm upon returning to Sri Lanka on that basis and the Authority was not satisfied there was a real risk the applicant will face significant harm on that basis. The Authority found that while the applicant may be required to spend a short period in detention, the Authority was not satisfied this amounts to significant harm. The Authority made reference to the poor prison conditions that he may face as an illegal departee and was not satisfied this amounts to the death penalty, the applicant being arbitrarily deprived of life, or torture, or that the harm would be intentionally inflicted. The Authority was not satisfied there was an intention to inflict pain or suffering or cause extreme humiliation and found, therefore, there was not a real risk of significant harm on that basis. The Authority was not satisfied that the imposition of a fine amounts to significant harm.

3. The Authority, taking into account the applicant’s claims individually and cumulatively, was not satisfied there was a real risk of significant harm to the applicant on return to Sri Lanka. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act.

Proceedings before this Court

Grounds of the application

1. The grounds of the amended application are as follows:

   l. One claim by the applicant which was before the Immigration Assessment Authority (“the IAA”) was that, since coming to Australia in 2012, the Sri Lankan authorities had come looking for the applicant and had warned the applicant's wife that they would arrest him on his return to Sri Lanka. The IAA failed to deal with this claim. This was a jurisdictional error.

   2. The IAA accepted the applicant's claim that in 2007 be filed a case against the Sri Lankan Army in connection with damage by the Army to his grocery store. The applicant added that he fears persecution as a result. In the circumstances, a question for the IAA to consider was whether the applicant, if required to return to Sri Lanka, would pursue the case against the Army and suffer persecution as a result. This question arose squarely on the materials before the IAA. The IAA failed to deal with this integer of the applicant's claim. This was a jurisdictional error.

   3. The IAA, after noting in paragraph 24 of its decision that

   
   

   “prisons in Sri Lanka do not meet international standards due to overcrowding, poor sanitary conditions and lack of resources” continued at paragraph 44 that this did not amount to significant harm because the harm was not “intentionally inflicted” within the meaning of s 5(1) of the Migration Act. The Tribunal erred in its construction of the term “intentionally inflicted” This was a jurisdictional error.

Ground 1

1. In relation to Ground 1, Mr Zipser of counsel took the Court to the reference in the Authority’s reasons to the applicant’s claim concerning information from his wife that the authorities had been to his door since and told his wife they would take care of the applicant upon return to Sri Lanka. That reference in paragraph 13 was in the context of identifying the applicant’s claimed fear of harm from the authorities. The Authority also summarised the applicant’s claims in paragraph 4 and, in that regard, had identified the applicant’s claim concerning the visits to his wife and asserted information that he was in Australia was one in respect of which it was alleged that the authorities would detain him because he made a complaint to them in 2007.

2. Mr Zipser of counsel submitted that there was no express finding made by the Authority in relation to the Sri Lankan authorities looking for the applicant since coming to Australia in 2012. Mr Zipser properly conceded that it was a question of fact to determine whether or not the applicant’s claim had been subsumed in the findings of fact made by the Authority. Mr Zipser submitted that the findings made by the Authority did not expressly deal with his claim that the authorities had warned his wife that they would arrest him on return in relation to his complaint.

3. I accept the submissions of the first respondent that on a fair reading of the Authority’s reasons the applicant’s claim in relation to his fear of the authorities from having contacted his wife subsequent to his departure were subsumed in the findings made by the Authority that since the 2007 complaint the applicant was released and was not of interest to the authorities and the finding that the Authority was not satisfied the applicant will face any harm upon return to Sri Lanka on the basis of being a Tamil from the Eastern Province, or for being perceived to having links to the LTTE or for lodging a complaint against the authorities in 2007.

4. The Authority made a more general finding in that regard that the Authority was not satisfied that there is a real chance the applicant will face any harm on this basis now or in the reasonably foreseeable future. That finding subsumed the applicant’s claim advanced by Mr Zipser on a fair reading of the Authority’s reasons. I also accept the first respondent’s submission that the claim is subsumed in the further findings made by the Authority in paragraphs 28, 29, and 32 read as a whole.

5. Further, reading those paragraphs with paragraphs 38 and 39, there was no failure by the Authority to deal with the whole of the claims advanced by the applicant. No jurisdictional error as alleged in Ground 1 is made out.

Ground 2

1. In relation to Ground 2, Mr Zipser accepted that there was no express complaint by the applicant, or suggestion that he would pursue the complaint made in 2007 against the army. Mr Zipser accepted that there had been a finding by the Authority in paragraph 28 expressly referring to the complaint made to the authorities in relation to the grocery store. Mr Zipser submitted that the Authority had not, however, dealt with the question of what would follow if the applicant pursued the complaint against the army. I accept the submissions of the first respondent that no such claim arose on the material before the Authority.

2. The Authority made adverse findings in relation to the applicant’s claim to fear harm because of the complaint, including the alleged damage to the grocery store as a result of the complaint. Those adverse findings were open on the material before the Authority and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by Ground 2.

Ground 3

1. In relation to Ground 3, Mr Zipser of counsel formally challenged the decision of the Full Court of the Federal Court of Australia in SZTAL v Minister for Immigration & Border Protection 243 FCR 556 and accepted this Court was bound to follow the Full Court. That was a proper course for counsel to take and preserves his client’s rights in relation to that decision. As this Court is bound by the Full Court I find that there was no jurisdictional error as alleged in Ground 3.

Conclusion

1. Because the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 July 2017