Aky18 v Minister for Immigration

[2020] FCCA 893

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKY18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 893

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa (SHEV), Subclass 790 – whether the Authority incorrectly considered the security situation in Sri Lanka – whether the Authority failed to address relevant claims made by the applicant – whether the Authority’s decision was unreasonable, irrational or illogical – whether jurisdictional error was made out – no jurisdictional error – application is dismissed.

Legislation:

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

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

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

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB

(2004) 207 ALR 12

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 10

Applicant: AKY18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 237 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 to pay the first respondent’s costs fixed in the amount of $7,200.00.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 237 of 2018

AKY18

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 a Safe Haven Enterprise Visa (SHEV), Subclass 790, along with her husband (AKX18) and their five children (ALA18, ALB18, ALC18, ALD18 and ALE18). The applicant claims to fear harm because of her familial links to a Liberation Tigers of Tamil Eelam (“LTTE”) member and because of her husband’s family has been branded as an LTTE family.

2. On 2 June 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the applicant, her husband and 5 their five children a protection visa. The family was referred to the Immigration Assessment Authority (“the Authority”) for merits review.

3. In three separate decisions, dated 10 January 2018, the Authority affirmed the decision of the delegate not to grant the applicant, her husband and five children a protection visa.

4. The applicant, her husband and five children now seek judicial review of the Authority’s decision in this Court. 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, her husband and children to obtain legal representation. It was further adjourned until 27 March 2020.

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

The Immigration Assessment Authority’s Decision

1. After setting out the history of the matter, at paragraph 9 of its decision, the Authority sets out the applicant’s claims, which can be summarised as follows:

   ·The applicant is a Tamil from Trincomalee in Sri Lanka.

   ·The applicant was married in 2000 and her first child was born in Sri Lanka in 2001. The applicant’s husband travelled to Kuwait for work in 2001 and she and her daughter remained in Sri Lanka, living with extended family.

   ·The applicant was close to a relative that joined the LTTE in 2002. The relative lived with the applicant’s family.

   ·In or around 2004/2005, this relative was arrested by police. The applicant’s father went to the police station and acted as surety for his bail. Sometime later, the relative was shot and killed in a public place by unknown persons, who the applicant believes were from the security forces.

   ·While detained, the applicant’s relative had been tortured. Under torture the applicant’s relative told authorities he had hidden weapons and they could ask the applicant where the weapons were hidden. The authorities came to the applicant two or three times and asked where the weapons were hidden.

   ·On one occasion, the Criminal Investigation Department (CID) came to the house at night to ask about the weapons. The applicant was at home with only her infant daughter and mother-in-law in the house. One of the CID officers assaulted her sexually by touching her in her “secret places”. The CID officer asked the applicant where the weapons were hidden and she again denied knowledge of the weapons. The applicant has not disclosed this incident to her husband.

   ·In 2006, the applicant travelled to Kuwait to join her husband, where her next two children were born. The applicant returned to Sri Lanka for a period with the children in 2008. The applicant later re-joined her husband in Kuwait and returned to Sri Lanka in 2010, were their fourth child was born.

   ·Around 2013, the family decided to live together and decided to initially travel to India. The applicant obtained passports for herself and their four children. The applicant’s husband returned to Sri Lanka. The family was waiting at a bus stop when the applicant’s husband was approached and detained by police. Money was paid to the police. Shortly after the applicant’s husband release, the family travelled to India. They did not experience any problems departing Sri Lanka.

   ·The applicant fears on return to Sri Lanka, she would be questioned and face problems because of the relative that was an LTTE member. The applicant also fears that her husband’s family was branded as an LTTE family and her husband was approached for extortion.

   ·The applicant is fearful about her general safety in Sri Lanka and expressed her concern about “greasemen” who attack women at night. The applicant cited an incident in 2013 where she was collecting her daughter from school and there was a disturbance and people were shouting and her daughter was scared.

   ·The applicant fears for the safety of their children in Sri Lanka.

2. At paragraphs 12 and 13 of its decision, the Authority accepts the applicant’s claimed identity. The Authority also accepts that the applicant was close to a relative who joined the LTTE in 2002, was arrested in 2004 and later killed. However, the Authority expresses doubt on the applicant’s accounts of being of interest to the CID because this relative told the CID he had hidden weapons and that they could ask the applicant where the weapons were hidden. The Authority does not accept that after the relative was killed, the CID came to the applicant’s family home to look for the weapons. If the relative had told the CID he had hidden weapons, the Authority does not accept that the CID would have released him before seizing the weapons or making attempts to locate them.

3. There is no indication that after the applicant left Sri Lanka in 2008, that CID members made any further enquiries about the weapons from other family members, including the applicant’s father, who stood surety for the relative, who was alleged to have hidden the weapons. The Authority does not accept the CID had an interest in the applicant because of suspicions about hidden weapons. The Authority notes that after the applicant’s return to Sri Lanka in 2010, there have been no further enquiries about these weapons.

4. At paragraph 14 of its decision, the Authority notes that security authorities in Sri Lanka, at that time, acted with impunity in abusing Tamils. The Authority is prepared to accept, as plausible, that the CID visited the applicant’s family home as part of a general security exercise, noting that her father stood surety for the relative. The Authority accepts that it is plausible that the applicant was sexually assaulted as claimed.

5. In terms of security questioning of the applicant, post her return from Kuwait in 2008, at paragraph 15 of its decision, the Authority finds that this questioning was routine. All Tamils living in the east were subject to questioning at the time and this of itself, does not signify that the applicant was of adverse interest to authorities.

6. At paragraph 16 of its decision, the Authority notes the applicant’s fear of harm because of the profile of her husband’s family and claimed approaches to him for extortion. The Authority notes however, after the applicant returned to Sri Lanka in 2008 and again in 2010, she and her children were able to live openly and there is no indication she came to any harm.

7. At paragraph 17 of its decision, the Authority accepts from the applicant’s experience of harm in the past, she may have a subjective fear of harm and mistreatment at the hands of Sri Lankan authorities, but the Authority was not satisfied that her fear is well-founded. The Authority then goes on to consider country information which was available to it. At paragraph 21 of its decision, the Authority notes country information indicates that female-headed households are vulnerable to abuse and sexual assault. The Authority was not satisfied that the chance of the applicant would being harmed in this matter was more than remote, given that the Sri Lankan authorities do not have an ongoing interest in the applicant and her circumstances that led to the visit by the CID in 2005, are no longer present.

8. The Authority notes at paragraph 21 that the applicant would not be returning home as the female-head of a household and that she would have the assistance of her husband, her father and two brothers.

9. At paragraph 22 of its decision, the Authority notes that the applicant contends that she departed Sri Lanka illegally, however, from the evidence in her SHEV interview, she obtained passports for herself and the children and they flew to India from Colombo airport. The indications are that the applicant departed Sri Lanka legally. While the applicant may have to return to Sri Lanka as a returnee travelling on a temporary travel document, the Authority was not satisfied that there was a real chance of harm during any process to confirm her identity on arrival. The Authority was also not satisfied the applicant would be at harm in Sri Lanka as a failed asylum seeker.

10. Accordingly, the applicant does not meet the requirements of the definition of a refugee in s 5H(1) or s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

11. Paragraphs 26 and onwards of the Authority’s decision, deal with complimentary protection assessment considerations. The Authority was of the view, for the reasons outlined above, that the applicant was not at risk of significant harm as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka. The applicant did not meet the requirements of s 36(2)(aa) of the Act.

Grounds of Appeal

1. The applicant abandoned 8 previous grounds and now relies upon two new grounds of appeal filed on 24 January 2020, in an amended application. They are as follows, verbatim:

   9.  The IAA erred when it found that there had been ‘significant’ changes in the country circumstance in Sri Lanka since the end of the war and the defeat of the repressive Rajapaksa government in 2015, such that the IAA was not satisfied the Applicant would experience harm on return to Sri Lanka as a Tamil or as a woman, and that the security situation in Sri Lanka had improved.

   Particulars

   i)  Paragraph 17 [CB533], Paragraphs 18 & 21 [CB533/4]:

   ii) The IAA cited numerous matters which indicate there has been little change or improvement in the Sri Lankan security situation and Sri Lanka still faces many of the same dangers as existed before the change of government in 2015. See paragraphs 18, 19, 20, 21 [CB533/4]

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

   10)    The IAA failed to address the applicant’s claim that the applicant is fearful for her general safety in Sri Lanka from greasemen who attack women at night, amounting to a constructive failure to exercise jurisdiction.

The Applicant’s Submissions

1. Despite Court orders, no written submissions, other than a repetition of the above grounds of appeal, were filed with the Court.

2. In relation to ground 9, Counsel for the applicant repeated its assertion that the findings of the Authority were unreasonable, as they were not supported by the evidence. In particular, the Authority seemed to ignore a caveat in one of the country information reports that some of the improvements said to have occurred in Sri Lanka were ‘too early to assess’.

3. In relation to ground 10, Counsel for the applicant submitted that the conclusion at in the final sentence of paragraph 21 of the Authority’s decision, that the Authority was not satisfied the applicant would be harmed by the CID, greaseman or others on return to Sri Lanka, lacked sufficient reasons. It was submitted that this claim was not properly dealt with.

The First Respondent’s Submissions

1. Counsel for the first respondent noted that the relevant paragraphs in the Authority’s decision, addressing the Authority’s consideration of the country information and its conclusions as to the applicant’s risk of harm are in paragraphs 18 to 21.

2. Counsel for the first respondent submits that it was a matter for the Authority to weigh the country information in the manner that it did. A fair appraisal of the country information indicates support for the Authority’s findings of a situation in Sri Lanka, which had changed in material respects concerning the risks to Tamils and women since the cessation of the war. Further, the Authority did not solely rely on the country information in assessing the applicant’s risk of harm. The Authority also had regard to the circumstances of the applicant’s claims, including the fact that the sexual assault it accepted she had suffered in 2005, occurred in the context of the war.

3. It was open to the Authority to find, on the information before it, that the chance of the applicant being sexually assaulted was remote. This finding was not based on a misunderstanding of the evidence, but constituted a finding arrived at on an open interpretation of the country information.

4. In relation to ground 10, Counsel for the first respondent submits that the applicant contends the Authority failed to address her claim that she is fearful for her general safety in Sri Lanka from greasemen who attack women at night. The ground cannot be accepted. The Authority considered this claim (see paragraph 21 of its decision.) The Authority’s finding essentially was that the improved security circumstances in Sri Lanka and the applicant’s own capacity to rely on protection from her family, meant that she did not have a real chance of harm from greasemen. Whilst the Authority addressed the claim in brief terms, the applicant did not herself offer any detail on her fear of greasemen, save that she cited “an incident in 2013 where she was collecting her daughter from school and there was a disturbance and people were shouting and her daughter was scared” [see paragraph 9 of the Authority’s decision]. The claim, having been framed in these terms, it was then open to the Authority to address the claim in the manner that it did. No jurisdictional error is established.

Consideration

1. In order to set aside a decision of the Authority, the Court is required to find jurisdictional error. A disagreement with the findings and conclusions of the Authority by the applicant, does not constitute jurisdictional error if it merely invites merits review by the Court, which it cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 (“Abebe”) at [53] and [54]).

2. It is well-settled that the country information to which the Authority has regard and the weight it gives to that information is a matter for the Authority (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).

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

4. Ground 9 merely recites information that was before the Authority and complains that the Authority incorrectly considered the security situation in Sri Lanka was improved and there had been significant changes in the listed reports of female vulnerability, when the material listed in the particulars is to the contrary.

5. The Authority considered the country information available to it, but for reasons that it gave, came to the conclusion that there was not a risk of serious harm to the applicant, should she be returned. These reasons included changes to the security situation generally, together with the fact that the applicant would be returning with her family and would not be a female-head of household. The Authority acknowledged that the applicant had a subjective fear of being sexually assaulted, given what had happened to her in the past. The Authority accepted that the applicant had been previously sexually assaulted at the hands of Sri Lankan security forces. The role of the Authority however, is to objectively examine all relevant material to in turn to determine whether there is sufficient material to objectively show that the prospect of serious harm is more than remote.

6. The Court agrees with the first respondent that the finding was not based on a misunderstanding of the evidence, but constituted a finding that was open to it on the country information. The fact that a different decision-maker may have come to another conclusion, or that the decision is considered harsh, are not of themselves sufficient reasons alone, to find legal unreasonableness. Therefore, ground 9 cannot be sustained.

7. Ground 10 concerns the specific claims that the applicant was fearful about her general safety in Sri Lanka and expressed concern about greasemen who attacked women at night. The Authority noted the applicant cited an incident in 2013, which she was collecting her daughter from school and there was a disturbance, people were shouting and her daughter was scared, as evidence in support of this claim.

8. No other material was put to the Authority to support the claim in relation to greasemen. There is no general obligation on the Authority to investigate the applicant’s claim (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [19]). The onus of proof is on the applicant (see Abebe at [187]).

9. Based on a review of all the material that was available to the Authority, the Court is satisfied that the finding was reasonably open to it and was within the realm of legitimate decisional freedom. The decision is not legally unreasonable. Ground nine reveals no jurisdictional error.

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-five (35) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 1 May 2020