AKR17 v Minister for Immigration

[2018] FCCA 1396

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKR17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1396

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority’s findings referring to the applicant’s departure and return to Sri Lanka involved an unwarranted assumption – whether the Authority’s findings concerning risk of harm to the applicant was based upon insufficient evidence – whether the Authority erred in only making a tentative finding concerning the issue of Tamils who had been subject to harm in Sri Lanka – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Other materials cited:
Prevention of Terrorism Act (Sri Lanka)
United Nations High Commissioner for Refugees, “UNHCR Eligibility Guidelines for assessing the International Protection Needs of Asylum Seekers from Sri Lanka”, 21 December 2012
US Department of State, “Human Rights Report 2014 Sri Lanka”, 25 June 2015

Cases cited:

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719

Applicant: AKR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 299 of 2017

Judgment of: Judge Smith

Hearing date: 5 April 2018

Date of Last Submission: 5 April 2018

Delivered at: Sydney

Delivered on: 22 June 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the First Respondent: Mr H P T Bevan

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 299 of 2017

AKR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 19 January 2017.  The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka who arrived in Australia by sea on 17 August 2012.  On 6 January 2016 he lodged an application for a protection visa.

3. The applicant claimed that he was a Tamil from the Eastern Province of Sri Lanka and that as a child he witnessed the violence of the civil war and the rounding up and killing of Tamils by the Army.  The applicant as a teenager and young adult was personally stopped and checked in round up exercises on three to four occasions.

4. The applicant participated with other villagers in a Pongutamil organised by the LTTE[1] in 2002 and 2003 and held a poster calling for Tamil rights.

   [1] Liberation Tigers of Tamil Eelam.

5. A friend of the applicant recruited Tamils for the LTTE and the applicant would make suggestions to him as to possible recruits.  The applicant himself did not join the LTTE because he did not want to be involved in fighting.  The LTTE attempted to recruit the applicant and in order to avoid this he went to Qatar to work in 2004.

6. In 2008 the applicant returned to Sri Lanka and lived with his family.  From the family home he could hear bombing which distressed him.  In 2008 and again in 2011, the applicant was stopped and checked in an Army round up.  On 2 to 3 further occasions he was held in group round ups and on one occasion in 2012 was detained and questioned about links to the LTTE.

7. In March 2012 weapons were found in the village of the applicant and the Army rounded up the villagers.  The applicant was away from the village at the time and was not detained or questioned.

8. The applicant departed Sri Lanka illegally in 2012.  His wife has advised him since that the Criminal Investigation Department (CID) has obtained lists of Tamils who have left Sri Lanka and travelled overseas and that the CID have questioned their relatives.

9. The applicant provided a letter from the Chairman of the Pradeshiya Sabha which stated that the applicant was arrested on suspicion that he had helped the LTTE.

10. The applicant’s experiences during the civil war and being rounded up have left him with a strong subjective fear of harm in Sri Lanka.  He fears that the authorities in Sri Lanka will harm him on return on the basis that they suspect him of being an LTTE member and supporter and also because he is a failed asylum seeker.

11. The applicant claimed that there was a long history of conflict between Tamil Hindus and Sinhalese Buddhists.  He feared that Tamils and Hindus had no rights in Sri Lanka and that nothing has changed in spite of the change in government.  His family faces lots of issues and problems and the Prevention of Terrorism Act remains in force and he fears he could be arrested on return to Sri Lanka.

12. On 31 August 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was referred automatically to the Authority for review.

13. On 19 January 2017, the Authority made its decision to affirm the decision of the delegate.

Authority’s reasons for decision

1. The Authority accepted that the applicant as a Tamil and Hindu had concerns for his safety on return to Sri Lanka and accepted his experiences during the civil war including being rounded up and questioned by the Army had added to the applicant’s subjective fear. However, the Authority did not accept that the objective evidence supported the applicant’s fear as being well founded: [18].

2. At [19] of its reasons, the Authority reasoned that the fact that the applicant was able to depart Sri Lanka in 2004 and return in 2008 indicated that the authorities did not have any concerns about the applicant in spite of his earlier involvement in the Pongutamil event in 2002 and 2003 and indicated that he did not have a profile as an LTTE supporter or member.

3. The Authority noted that the applicant had only been targeted in the past as a Tamil, that he was stopped along with other civilians and required to provide his identity and answer questions.  It did not accept, however, that those events gave rise to a well-founded fear of persecution in the foreseeable future.

4. In respect of the incident in his village in 2012, the Authority noted at [21] that there was no indication that the applicant was suspected by the authorities of any link to the weapons found there.

5. The Authority noted that there had been significant monitoring and harassment of Tamils during the civil war, but that the information before it, suggested that there had been a significant change in the country since the end of the war as well as the defeat of the repressive Rajapaksa government in 2015.  The Authority noted that the UNHCR guidelines[2] indicated that Tamil ethnicity alone did not give rise to protection needs and that there was no longer a presumption of a requirement for protection for reason of being a Tamil from a former LTTE controlled area, having participated in a Pongutamil event or helping identify potential recruits: [22]-[23].

   [2] United Nations High Commissioner for Refugees (UNHCR), “UNHCR Eligibility Guidelines for assessing the International Protection Needs of Asylum Seekers from Sri Lanka”, 21 December 2012.

6. The Authority then went on to consider the balance of the applicant’s claims.  However, given the nature of the issues raised in this application, it is not necessary to set the matter out in any detail other than to note that the Authority was not satisfied that there was a real risk of serious harm or significant harm upon return to Sri Lanka.  For those reasons, the Authority was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the decision under review.

Consideration

1. There is one ground in the amended application, however given the differences between the particulars to that ground, there are in effect three grounds. 

First ground

1. The first ground focuses on [19] of the Authority’s reasons.  In particular, the statement by the Authority that the fact that the applicant was able to leave Sri Lanka in 2004 and return in 2008 “indicates that the authorities did not have any concerns about the applicant …”.

2. The applicant argued that this finding involved an assumption that in 2004 and 2008 the authorities had systems in place to check the profiles of citizens when they lawfully departed from, or returned to, Sri Lanka.  He submitted that the Authority did not refer to any country information in support of the assumption, and further, that all of the country information referred to by the Authority was dated from 2012 and onwards.  From this assertion, the applicant argued that country information concerning border controls and systems in 2012 and onwards may not be applicable to border control and systems in 2004 and 2008.

3. At [19] the Authority wrote:

   The applicant was not involved with the LTTE. I note that he participated in a Pongutamil event in 2002/2003 and helped his friend identify potential LTTE recruits around this time, but that these activities did not prevent him being able to leave Sri Lanka in 2004, or return in 2008. This indicates that the authorities did not have any concerns about the applicant and that he did not have a profile as an LTTE supporter or member.

4. The argument that there was no evidence before the Authority to support the inference drawn by it and therefore that there was an “unwarranted assumption” cannot be sustained.  The applicant’s own case involved the proposition that, as a Tamil, he had been closely monitored, questioned and harassed during the course of the civil war.  He claimed to have witnessed such serious matters during that time inflicted by the authorities that he still has a subjective fear because of them.  The applicant never claimed to have departed Sri Lanka in 2004 or returned to Sri Lanka in 2008 otherwise than through a formal, lawful departure port which, it may reasonably be assumed (simply by reason of being lawful) was controlled by the authorities of Sri Lanka.  That alone, supports the inference drawn by the Authority.  As the authorities were in control of the places where the applicant left from and returned to Sri Lanka, the fact that he was allowed passage did support the inference that they had no interest in him at that time.

5. That inference is further supported by the material before the Authority.  At [22] of its reasons the Authority referred to information to the effect that:

   Throughout the war and in the period immediately afterward the Tamil population was subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE and it was in this environment that the applicant was rounded up, checked and questioned by the army between 208 and 2012. …

   (Citation omitted and without alteration)

6. The applicant’s complaint that that information was post-dated 2012 and therefore could not support the Authority’s inferences in [19] of its reasons must be rejected.  Simply because information is published in a document which post-dates certain events does not mean that it is not relevant to that event.  It is clear from the information referred to at [22] of the Authority’s reasons that the information relied on by the Authority, although dated March 2014, was clearly referable to the entire period of the civil war which ended in 2009.  It is for the applicant to establish that that had no bearing on, and could not have supported, the inferences drawn by the Authority.  He has not done so.

7. The first ground is rejected.

Second ground

1. The second ground focuses on [22] of the Authority’s reasons and in particular the Authority’s conclusion that there had been an improvement in the human rights situation for Tamils since the end of the war. 

2. The applicant argues that the Authority’s approach was that because the security situation in Sri Lanka for Tamils had improved and the “monitoring and harassment of Tamils has decreased” there is no longer a real chance that the applicant would suffer harm from the authorities.  The applicant then submitted that, contrary to this approach, the fact that the security situation in Sri Lanka has improved does not mean that an applicant no longer faces a real chance of suffering harm.

3. It is necessary to set out the whole of [22] as it is the focus of this ground:

   Throughout the war and in the period immediately afterward the Tamil population was subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE and it was in this environment that the applicant was rounded up, checked and questioned by the army between 208 and 2012. However, there has been a significant change in the country circumstances since the end of the war and the defeat of the repressive Rajapaksa government in 2015. The Emergency Regulations that provided the security authorities broad powers to arrest and detain suspects have been lifted. Although the Prevention of Terrorism Act remains in force, and there remain credible reports of ongoing arrests and disappearances in Sri Lanka, I note that the Department of Foreign Affairs and Trade (DFAT) reports the improvement in the security situation has resulted in a decrease in Tamils held in detention and the election of the Sirisena government in 2015 has led to greater political cooperation. The monitoring of Tamils from the former LTTE areas has decreased under the new government and the Sirisena government has adopted a more proactive approach to human rights and reconciliation and has been engaging constructively with the Tamil political parties. DFAT reports that the monitoring and harassment of Tamils has decreased under the Sirisena government which has taken steps to remove remaining checkpoints. The UNHCR’s December 2012 Guidelines for assessing the eligibility of Sri Lankans for asylum state that in the UNHCR’s opinion, being of Tamil ethnicity alone does not give rise to protection needs and there is no longer a presumption of a requirement for protection for reason of being a Tamil from a former LTTE controlled area. Nor does the UNHCR recognise coming from a once LTTE controlled area as being of concern in its current Guidelines.

   (Citations omitted and without alteration)

4. The applicant’s entire argument in this ground rests upon a false premise, namely that the only reason for which the Authority concluded that there was no real chance of serious harm coming to the applicant for the reasons given by him, was that there was an “improvement” in the country situation.  That premise is not open on any reading of the findings which are set out at [22] of the Authority’s reasons. 

5. The Authority, contrary to the applicant’s argument, not only assessed the fact that there was an improvement in the country situation but also entered into a qualitative analysis of that improvement including: the lifting of Emergency Regulations pursuant to which there had previously been arrests and detention; an actual decrease in the number of Tamils held in detention; greater political co-operation; reduction in the monitoring of Tamils; a more pro-active approach to human rights; constructive engagement in reconciliation with Tamil political parties; and an assessment by the UNHCR that Tamil ethnicity alone does not give rise to protection needs and nor does coming from an area once controlled by the LTTE.

6. Indeed, the Authority went further at [23] by drawing from the material before it, the conclusion that the Tamils who continued to be at risk were those with real or perceived links with the LTTE.  As the Authority did not accept that the applicant had either a real or perceived link to the LTTE this added factor was also important to its conclusion.

7. This ground is rejected.

Third Ground

1. The third ground focuses on [23] of the Tribunal’s reasons and in particular, the statement by the Authority that “the indications are that those involved [in human rights violations in Sri Lanka] had real or perceived links with the LTTE”.  The applicant argues that the word “indications” suggests that the Authority only made a tentative finding concerning this issue and, in light of the nature of the enquiry required by the “well-founded fear of persecution” the Authority ought to have asked “what if I am wrong?”: see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60]-[67] (Sackville J); [1999] FCA 719.

2. This ground, like the first two grounds, relies on too narrow a reading of the Authority’s reasons.  The word “indications” in [23] is not suggestive of any real doubt held by the Authority in respect of its conclusion concerning the identity of the Tamils who had been tortured and the subject to other human rights violations in Sri Lanka.  Rather, it was a conclusion drawn from the material referred to by the Authority: see US Department of State, “Human Rights Report 2014 Sri Lanka”, 25 June 2015.  It is important, immediately following the sentence impugned by the applicant, the Authority stated:

   23.... The applicant does not have a real or imputed LTTE profile and I note his involvement in the Pongutamil event and his link to the friend recruiting for the LTTE did not attract any adverse attention in the past. I find that there is not a real chance the applicant would face harm from the authorities in Sri Lanka for being a Tamil from a former LTTE controlled area, having participated in a Pongutamil event, or helping his identify potential LTTE recruits.

3. On a proper understanding of the Authority’s reasons, the Authority did not need to assess the possibility of harm on the hypothesis that its conclusion about the identity of the people subject to human rights in Sri Lanka was wrong.

4. This ground is rejected.

Conclusion

1. I am not satisfied there is any jurisdictional error in the Authority’s decision and the application must be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       22 June 2018