Akx18 v Minister for Immigration

[2020] FCCA 892

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKX18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 892

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa (SHEV), Subclass 790 – whether the Authority erred when it did not consider relevant matters – whether the Authority did not apply intellectual process – whether the Authority misunderstood the evidence – whether the Authority made an unreasonable finding – whether the Authority erred in finding that it was not satisfied that the applicant would experience or be subject of harm – whether the Authority’s decision was unreasonable, irrational or illogical – whether the Authority made jurisdictional error – no jurisdictional error made out – the application is dismissed.

Cases cited:

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 10

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Applicant: AKX18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 236 of 2018

Judgment of: Judge Humphreys

Hearing date: 27 March 2020

Date of Last Submission: 27 March 2020

Delivered at: Parramatta

Delivered on: 1 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Foster

Solicitors for the Applicant: Sentil Solicitors

Counsel for the Respondents: Mr Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

4. The above orders are stayed until 30 June 2020.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 236 of 2018

AKX18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a Sri Lankan national. On 2 January 2017, the applicant applied for Safe Haven Enterprise Visa (SHEV), Subclass 790, along with his wife and their five children. The applicant claims he fears he will be imputed with a Liberation Tigers of Tamil Eelam (LTTE) profile and that he will be harmed by Sri Lankan authorities.

2. On 2 June 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”), refused to grant the applicant, his wife and five children, a visa.

3. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In three separate decisions, dated 10 January 2018, the Authority affirmed the delegate’s decision not to grant the applicant, his wife and five children a protection visa.

4. The applicant, along with his wife and five children, now seek judicial review of the Authorities decision in this Court.

5. The matter first came before this Court on 26 June 2019. At the request of the applicant and without objection from the first respondent, the matter was adjourned to enable the applicant to obtain legal representation. It was further adjourned until 27 March 2020.

6. By consent, the applicant’s application, together with that of his wife and the five children, were heard together. A separate judgement however, will be issued in respect of each of the applicant, his wife and his children, as separate issues arise in each matter. However, the judgements should be read together.

Immigration Assessment Authority’s Decision

1. At paragraph 9 of its decision, the Authority summarises the applicant’s claims as follows:

   a)   The applicant is a Tamil from Trincomalee, Eastern Province, Sri Lanka.

   b)   The applicant’s older step-brother went missing in 1986/1987. The applicant believes he was killed by security forces.

   c)   In 1990, the applicant was displaced for several months.

   d)   In 1995, a cousin of the applicant joined the LTTE. The applicant and his cousin were arrested by police and detained for 14 days. The applicant was released after his mother paid money. The applicant’s cousin was in custody for two and a half years.

   e)   The applicant went to Colombo to avoid regular security roundups. While residing in Colombo, the applicant was arrested and held in prison for 10 days.

   f)    The applicant married in 2000. The applicant decided to go to Kuwait to work and to avoid being rounded-up in security exercises.

   g)   Around 2001, the applicant’s two younger brothers joined the LTTE as fighters. One of the applicant’s brothers came to live in Kuwait in 2005. The other brother, continues to live and work in Trincomalee.

   h)   The applicant’s wife joined him in Kuwait around 2005/2006. Two of the children were born in Kuwait. The applicant’s wife and children later returned to Sri Lanka.

   i)    The applicant returned to Sri Lanka in 2010. The applicant was arrested by police and released after paying a bribe. The applicant returned again to Sri Lanka in 2011 but had a problem, believing some people were informing about him so he went back to Kuwait.

   j)    The applicant’s wife was concerned about the continued separation of the family. The applicant’s wife obtained passports for herself and by then, four children, with visas to India for the family. In preparation, the applicant returned to Sri Lanka in 2013. The applicant was again detained by police and released after his mother paid a bribe. The applicant was told by police, he needed to return the following day, however, he went with his family to Colombo where they boarded a flight to India. From India the applicant and his family travelled by boat to Australia.

   k)   The applicant fears that as a Tamil, with LTTE familial links, returning to Sri Lanka as a failed asylum seeker with money, he would be questioned on arrival. This could lead to extended questioning and detention, which increases the risk of mistreatment.

   l)    The applicant fears for the safety of his children in Sri Lanka, if he or his wife came to harm.

2. At paragraph 13 of its decision, the Authority accepts that the applicant’s older step-brother went missing in 1986/1987 and it is plausible that his brother was killed by security forces. At paragraph 14 of its decision, the Authority accepts that the applicant was displaced for several months in 1990.

3. At paragraph 15 of its decision, the Authority accepts that the applicant was detained in 1995, while in the company of his cousin, who was an LTTE member. The Authority accepts that the applicant was held for 14 days, before being released and it is plausible that his mother paid some money to secure his release. The Authority notes the differentiation of his experience and his cousin, who was detained for an extended period, indicates that the authorities did not fear the applicant as an LTTE, member like his cousin.

4. At paragraph 16 of its decision, the Authority accepts that the applicant was subject to regular security round-ups and checks. When the applicant was in Colombo, he was arrested and held in prison for 10 days. The fact that the applicant was released without any charge and that he was able to live openly in Sri Lanka, subject to regular security checks, indicates that there was no ongoing adverse interest in him from the authorities. The Authority accepts that the applicant went to Kuwait after his marriage in 2000.

5. At paragraph 17 of its decision, the Authority accepts that two of the applicant’s brothers, joined the LTTE as fighters in 2001. Whilst one has left and now resides in Kuwait, the other has remained in Sri Lanka. At paragraph 18 of its decision, the Authority notes there is no indication that other family members, who have remained in Sri Lanka, have come to harm because of their familial links to these brothers. The Authority concludes that the applicant would not face harm on the basis of his links to these brothers, or his cousin, or that he would be imputed with an LTTE profile because of this connection or for other reasons.

6. At paragraph 19 of its decision, the Authority accepts plausible that the applicant came to the attention of police when he returned on a visit to Sri Lanka in 2010, but the Authority was not convinced that he was arrested by police, because of any concern that he had LTTE connections. The Authority notes that the applicant was able to re-enter the country at the airport in Colombo without problem. The Authority places significant weight on the applicant’s subsequent ability to depart Sri Lanka shortly after this incident without difficulty.

7. At paragraph 21 of its decision, the Authority was not convinced that the applicant was detained by police in his brief return to Sri Lanka in 2013. The applicant was able to enter the country at the airport in Colombo without incident. The Authority is willing to give the applicant the benefit of the doubt and accept that he was briefly detained and released, after the payment of 10,000 rupees. There is no indication that the applicant was subject to a Court order to report to police and noting the changed security situation in Sri Lanka, since the change of government in 2015, the Authority was not satisfied he would face any harm because he did not comply with a police request to return in 2013.

8. At paragraph 22 of its decision, the Authority was not satisfied that the applicant was imputed with LTTE or other profile of concern when he departed Sri Lanka in 2013, or that he would be on return.

9. Paragraphs 23 to 27 of its decision, the Authority deal with relevant country information. At paragraph 27 of its decision, the Authority is not satisfied that the applicant would experience harm, be subject to extortion as a Tamil or for any other reason, on return to Sri Lanka.

10. At paragraph 28 of its decision, the Authority notes that the applicant claims he departed Sri Lanka in 2013 legally, flying from Colombo to Tamil Nadu in India. The Authority notes that the applicant’s passport was retained by an agent in India and he may return to Sri Lanka as a returnee travelling on a temporary travel document and be subject to an investigative process, to confirm his identity on arrival. Whilst acknowledging that the applicant may be detained for several hours, the Authority finds that there is not a real chance that he would be harmed as a result of this process. Whilst accepting that the applicant would return to Sri Lanka as a failed asylum seeker, the Authority does not accept that he has a profile or would be perceived as having LTTE links or be otherwise of interest to security authorities, as a returning failed Tamil asylum seeker.

Grounds of Appeal

1. In a further amended application filed on 24 January 2020, the applicant abandons previous grounds 1 to 8. Three new grounds are relied upon as follows, verbatim:

   9.       The IAA erred when it found that the authorities did not view the applicant as an LTTE member like his cousin.

   Particulars:

   i)Paragraph 5 [CB536]

   ii)The IAA based the finding on the differentiation between the Applicant’s exercise and his cousin who was detained for an extended period.

   iii)The Applicant was held for 14 days whereas the cousin was held for 2 ½ years (paragraph 9 [CB534])

   iv)The Applicant claimed he was released because he paid money. [CB25]. The Applicant claimed he was suspected LTTE. [CB25]. The IAA considered it was plausible the mother paid some money to help secure his release (paragraph 15 [CB536])

   v)IAA’s findings that the authorities did not view the Applicant as an LTTE member like his cousin was in error, because the evidence before it explain why the cousin was held for much longer than the Applicant was that he paid money for release.

   Accordingly, the IAA committed jurisdictional error when it did not consider relevant matters, or apply intellectual process, misunderstood the evidence and made a finding which was unreasonable.

   10.    The IAA erred when it found that there had been ‘significant’ changes in the security situation and in the country circumstances in Sri Lanka since the change of government in 2015 and that the security situation in Sri Lanka had improved such that the IAA was not satisfied the Applicant would experience harm or be subjected to extortion as a Tamil or for any other reasons on return to Sri Lanka.

   Particulars:

   i)      Paragraphs 21, 23 [CB537], 27 [539]

   ii)     The IAA cited numerous matters which indicate there has been little change and Sri Lanka still faces many of the same dangers as existed before the change of government in 2015. See paragraphs 23, 24 [CB537/8].

   Accordingly, the IAA committed jurisdictional error in misunderstanding the evidence and making a finding which was unreasonable.

   11.    The IAA erred when it considered 4 categories set out in the Upper Tribunal report applied to the Applicant and finding he did not fit within any of them, when the report was not relevant to the decision.

   i)      Paragraph 25 [CB538]

   ii)     The UK Home Office report occurred in 2013. [CB538]

   iii)    There is no basis to infer that the criteria applicable in 2013 would apply in 2019

   iv)     The 24 January 2017 DFAT report sets out different categories of persons who may need international protection at paragraph 3.32 [CB457]. The Applicant may have fallen within one or more of these categories, which were relevant.

   v)     The IAA did not refer to this aspect of the DFAT report when it considered the question of whether the Applicant required protection, but took into account the 4 categories as expounded by the 2013 Tribunal which were not relevant.

   Accordingly, the IAA committed jurisdictional error in misunderstanding the evidence, taking into account irrelevant matters, failing to take into account relevant matters, and making a finding which was unreasonable.

The Applicant’s Submissions

1. The applicant appeared before the Court represented by Counsel. Notwithstanding orders by the Court, no written submissions were filed with the Court, in support of the further amended application. The written submissions that were filed, simply consisted of the new grounds of appeal, as outlined above.

2. In oral submissions, Counsel for the applicant submits to the Court that in relation to ground 9, the Authority made findings not supported by the evidence. It was submitted that it was unreasonable to differentiate, in terms of an LTTE profile, between the applicant’s cousin, who spent two and a half years in custody, following their arrest in 1995 and the applicant, who was released after his mother paid a bribe.

3. In relation to ground 10, Counsel for the applicant submits that many of the points adopted by the Authority, supported a finding that the applicant was not safe to return to Sri Lanka. On a reasonable reading of the security situation outlined in the country information before the Authority, it was unreasonable to conclude that the situation was safe.

4. In relation to Ground 11, Counsel for the applicant submitted that the Authority failed to refer to all the relevant information before it.

The First Respondent’s Submissions

1. In ground 9, the applicant contends that the Authority erred in finding that the Sri Lankan security authorities, did not view the applicant as an LTTE member like his cousin. Counsel for the first respondent submits that the applicant claims that the Authority misunderstood the evidence and did not consider relevant matters or apply intellectual processes. No error is made out. Notwithstanding the fact that the Authority accepted the applicant had paid money to secure his release from detention in 1995, the Authority was of the view that the applicant would not have been released after 14 days, had he been actually suspected of being an LTTE member.

2. Counsel for the first respondent submits that the reasoning was not unreasonable or illogical. The Authority did not rely materially on the applicant’s release from detention in 1995, as a reason he would not face harm in the reasonably foreseeable future, if returned to Sri Lanka. The Authority provided detailed reasons for the rejection of the applicant’s claims to fear harm if returned.

3. In ground 10, the applicant contends that the Authority erred in finding that there had been significant changes in security situation and country circumstances in Sri Lanka, since the change of government in 2015, such that the applicant will not experience harm or be subject to extortion as a Tamil or for other reason. No error is made out. Counsel for the first respondent submits that it was a matter for the Authority to weigh the country information the way that it did. It cannot be said that the Authority’s consideration of the material to which it referred to, was unreasonable, irrational or illogical. It is not for the applicant to invite the Court to take a different view of the meaning or the effect of the country information cited by the Authority. To do so, constitutes a slide into impermissible merits review. The Authority appears to have faithfully summarised the relevant parts of the country information it had concerning changes in the country circumstances, since the end of the Rajapaksa government.

4. Counsel for the first respondent submits that the fact that there remain some risks for people in Sri Lanka, that continue to this day, does not negate the effect of the country information relied upon by the Authority, which focused on changes particularly impacting on the Tamil community. In any event, the Authority was aware of and referred to circumstances in Sri Lanka that might pose risks for people. It was a matter for the Authority to weigh up all of this information, informing its views as to the risk to the applicant, if he returned to Sri Lanka.

5. In ground 11, the applicant asserts that the Authority erred in considering whether the four categories set out in the UK Upper Tribunal country guidance decision, applied to the applicant and that he did not fit within any of them.

6. Counsel for the first respondent submits firstly, that it is a matter for the Authority to, within its jurisdiction, to select the way it deals with country information (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11-13]).

7. Secondly, Counsel for the first respondent submits that as the Authority makes clear, the UK Upper Tribunal in 2013, was itself cited in a UK Home Office report in 2016. Further, there can be no error arising from the fact that the Authority found the applicant not to be at risk, because he did not fall within recognised categories.

8. Thirdly, Counsel for the first respondent submits that the 2017 Department of Foreign Affairs and Trade (“DFAT”) report states that the categories set out in the report, are based on the United Nations High Commissioner for Refugees (“UNHCR”) eligibility guidelines for Sri Lanka dated December 2012, predating the UK Upper Tribunal country guidance decision. In any event, it is submitted that it was a matter for the Authority to assess the DFAT report; the Authority was aware of the DFAT report and expressly referred to it in the footnote to paragraph 26 of its decision.

Consideration

1. Each of the grounds of appeal alleges that the Authority acted in an unreasonable, irrational or illogical manner, or failed to apply an intellectual process, or misunderstood the evidence.

2. Unreasonableness is where a decision-maker has come to a conclusion, so unreasonable, that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (“Li”) at [28]), or where a decision has been made that lacks an “evident and intelligible justification” (see Li at [76]).

3. The test for unreasonableness is ‘stringent’ and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters, or the evaluative judgements made by the decision maker (see Li at [30] and [113]).

1. It is well settled that country information to which the Authority has regard and the weight it gives to that information, is a matter for the Authority (see NAHI above).

2. Ground 9 alleges that the Authority fell into error in that it did not view the applicant as an LTTE member, like his cousin. No claim has ever been made that the applicant was a member of the LTTE. The Authority distinguished between what happened to the applicant’s cousin when they were arrested, as compared to the applicant. The Authority accepted that the applicant was released after his mother paid a bribe. The Authority concluded that the applicant would not have been released, had he been perceived to be an LTTE member.

3. The Court is satisfied that the Authority considered carefully, all of the material that was before it and it was entitled to come to the conclusion is that it did. There is nothing unreasonable, irrational or illogical about the reasoning process it undertook. It is clear that the Authority undertook an active intellectual process in weighing the various pieces of evidence before it including country information. No jurisdictional error is established.

4. In grounds 10 and 11, the applicant seeks to cavil with the evaluation of the country information that was before the Authority. The Authority clearly considered this information but came to a conclusion that the applicant was not at risk of harm, if returned to Sri Lanka, in terms of the protection required as both a refugee and under the complimentary protection considerations. As set out above, it is a matter for the Authority as to which country information it has regard to and the weight it gives it.

5. This ground of appeal merely seeks the Court to engage in impermissible merits review and does not disclose any jurisdictional error. It is clear that the Authority was aware of the DFAT report and considered it. It was expressly referred to. No jurisdictional error arises.

Conclusion

1. Accordingly, the application is dismissed.

2. Given that this matter and the associated matters involve a family unit including five children and given the current health pandemic of COVID-19, the Court proposes to stay the Orders of this Court, until 30 June 2020. Any appeal period will run from that date.

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

Associate:

Date: 1 May 2020