AMZ18 v Minister for Home Affairs

[2018] FCCA 2027

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMZ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2027

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed integers of the applicant’s claimed fear of persecution – whether the Authority failed to determine whether or not there were exceptional circumstances for justifying the new information – no jurisdictional error made out – amended application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5H, 36, 473DD, 476.

Applicant: AMZ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 272 of 2018

Judgment of: Judge Street

Hearing date: 25 July 2018

Date of Last Submission: 25 July 2018

Delivered at: Sydney

Delivered on: 25 July 2018

REPRESENTATION

Counsel for the Applicant: Ms C Winnett

Solicitors for the Applicant: WLW Migration Lawyers

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 272 of 2018

AMZ18

Applicant

And

MINISTER FOR HOME AFFAIRS

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 of the Act made on 25 January 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 14 October 2012 as an unauthorised maritime arrival. The applicant was found to be of Tamil ethnicity, born in a particular town in the Jaffna district in the Northern Province of Sri Lanka.

3. The applicant claimed to fear harm by reason of his ethnicity, imputed links to the Liberation Tigers of Tamil Eelam (“LTTE”), his illegal departure and failed asylum seeker status. On 13 June 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. The Authority wrote to the applicant on 16 June 2017 explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information.

2. The applicant did put on submissions and new information provided under email dated 31 July 2017 and 1 August 2017, which the Authority took into account, expressly referring to the same in its reasons. The Authority identified in the latter that there was provided a news article published on 19 September 2012. The Authority referred to the date of publication, being 19 September 2012, and was not satisfied that the article could not have been provided to the Minister prior to the date of the delegate’s decision on 13 June 2017.

3. The Authority then referred to the significance of the article as relating to a report of an abduction of a Tamil man from the Jaffna district of Sri Lanka in 2012. The Authority observed that the article was broadly consistent with the country information of 2012 which was before the delegate. The Authority referred to the applicant’s email alleging that the article relates to a friend who was abducted in September of 2012. The Authority noted the applicant put forward this claim to the delegate in the Safe Haven Enterprise Visa application and in his protection visa interview. The Authority referred to the delegate having accepted that the friend of the applicant was abducted at around this time, although the delegate disagreed with the applicant’s contention that the abduction was related to him. The Authority referred to the translating article provided making similar claims to those previously put forward by the applicant and which were accepted by the delegate.

4. The Authority found the article itself does not refer to the applicant, or suggest that the applicant’s conclusions about this issue are true in terms of the abduction being related to the applicant. In the circumstances, the Authority was not satisfied the article contains credible personal information that was not previously known which may have affected the consideration of the applicant’s claims. The Authority found that neither limb of s 473DD of the Act was met and noted that no submissions had been advanced as to why there were exceptional circumstances to justify considering the document.

5. The Authority also considered other new information in respect of an article published on 10 July 2017, and found that there were not exceptional circumstances to justify considering the same. The Authority also referred to a document written in Tamil by a local village head in respect of which there was no translation, and was not satisfied there were exceptional circumstances to justify considering the same. The Authority also referred to a translation of a court document and noted this was a translation for a Summons that had been submitted by the applicant to the delegate, and the Authority did not consider it to be new information and had regard to the same.

6. The Authority summarised the applicant’s claims and evidence. In that regard, the Authority expressly referred to the applicant being a Tamil male born in the township of a particular place in the Jaffna district of the Northern Province of Sri Lanka. The Authority set out the relevant law.

7. The Authority, under a heading “Imputed LTTE Membership & Tamil Ethnicity”, referred to the applicant’s claims in relation to the place in which he lived until 1996. The Authority expressly referred to country information that the authorities in Sri Lanka did employ checkpoints and round-ups similar to those described by the applicant throughout the period of conflict, and that the techniques were used to manage the Tamil population and areas controlled by the Sri Lankan Army (“SLA”). The Authority referred to a Department of Foreign Affairs and Trade (“DFAT”) country information report of 24 January 2017 that support for the LTTE could be imputed on the basis of ethnicity. The Authority referred to the period between 2006 and 2009 in relation to the renewed conflict in Sri Lanka, culminating in the final defeat of the LTTE. The Authority accepted the applicant’s claims about this policy being applied by Sri Lankan authorities during the period as being accurate. The Authority referred to the applicant having stated that he and his family were long-term residents of the particular area, being the township in the Jaffna district in the Northern Province, in which the applicant was born, who were well-known to the local authorities and were never subjected to these round-ups or interrogations during this period.

8. Given these assertions by the applicant, the Authority was not satisfied that these round-ups have any direct relevance to the applicant’s other claims for protection and noted that the applicant had not put forward any specific claim founded on these events. The Authority also referred to the applicant indicating that he was never subjected to any questioning on the basis of his family links to the organisation, despite his own claim that he and his family were well-known to the local authorities between the applicant’s cousin’s death in 2000 and his departure to Australia in 2012.

9. The Authority referred to the applicant’s assertion that after the war there was a curfew that applied to Tamils in his home area, and that Tamils who were found out after 9 pm would be killed and that Sinhalese persons were not subjected to this policy, and that the curfew lasted approximately one year and then was withdrawn in 2010. The Authority, after making reference to the country information before the Authority, accepted that there was a curfew in the applicant’s home area after the war. The Authority accepted that the policy may have been applied in a discriminatory fashion by the Sri Lankan security forces in the area and that Tamils may have been targeted by the policy. The Authority noted that the applicant has not claimed that he or anybody he knew was affected by the policy or suffered serious harm from it. The Authority noted the applicant had not put forward any claim about the curfew other than that it existed and that the applicant, as a Tamil, was subject to it. The Authority also noted that in the protection visa interview, the applicant indicated that he had not any difficulties with the Sri Lankan security forces prior to 2012. The Authority noted that this was confirmed twice during the interview, and the applicant referred to the curfew having ended in 2010.

10. The Authority then referred to mistreatment by the navy, and accepted that the applicant was charged for fishing inside the five-kilometre security exclusion zone. The Authority found the applicant was able to secure work in the local area afterwards and that no follow-up proceedings occurred prior to his departure in September. The Authority concluded that the applicant exaggerated the difficulty he faced during this period in order to enhance his claim for protection.

11. The Authority then referred to the abduction of the applicant’s friend and referred to the incident alleged on 12 September 2012 in respect of a white van abduction. The Authority accepted that there were many credible reports of mistreatment of persons of interest by security forces in Sri Lanka around 2012, and referred to the white van abductions. The Authority accepted the applicant’s friend was abducted and mistreated as claimed.

12. The Authority found the applicant had not provided any compelling evidence that might support his claims that the abduction of his friend was in error and that the abductors actually meant to kidnap him, or that the abduction was linked to the events of April 2012, when he was taken before the Court in respect of the fishing incident. The Authority found none of the evidence supports the applicant’s claim that the incident was perpetrated by the Eelam People’s Democratic Party (“EPDP”). The Authority accepted the applicant was genuinely fearful after his friend was kidnapped but, considering all of the evidence, the Authority was not persuaded that the applicant’s conclusions about the event were correct and did not accept them.

13. The Authority again made reference to the DFAT country report of 2017 that disappearances are no longer a common occurrence in Sri Lanka. It was in the light of this country information that the Authority was not satisfied the applicant faced a real chance of harm arising from the abduction of his friend in 2012 if returned to Sri Lanka.

14. The Authority referred to the applicant’s claim concerning his father having been arrested in 2012. The Authority noticed that the proceedings only resulted in the applicant’s father being detained for less than one day and that his father has faced no further difficulties arising from the issue that occurred almost four years since the event.

15. The Authority referred to the applicant’s activities in Australia. The Authority was unpersuaded by the applicant’s claims that he would be harmed if returned to Sri Lanka because of his activities in Australia, and was not satisfied the applicant would face a real chance of harm from his activities in Australia, including his attendance at Tamil or LTTE commemorations or his use of social media if returned to Sri Lanka. The Authority referred to the father’s proceedings, and was not satisfied that any proceedings arising from this matter would amount to serious harm if the applicant was returned to Sri Lanka.

16. The Authority referred to the applicant’s claims about his mistreatment by the navy, the abduction of his friend, his father’s 2014 Court hearing, and was not satisfied the applicant would otherwise be of interest to the authorities in Sri Lanka, almost six years after the events of April 2012. The Authority was not satisfied the applicant faces a real chance of harm arising from any of these factors if returned to Sri Lanka.

17. The Authority turned to the applicant being a failed asylum seeker who departed illegally. The Authority found the processes to which the applicant would be subjected apply to all returnees and were not applied by Sri Lankan authorities in a discriminatory manner. The Authority was not satisfied the questioning, brief period of detention, imposition of a fine for breaching Sri Lanka immigration law arising from the application of these processes amounts to serious harm.

18. The Authority, having considered all the evidence before the Authority, was not satisfied the applicant would face a real chance of harm arising from his ethnicity and origins, his family links to the LTTE, his April 2012 encounter with the navy, the abduction of his friend in September 2012, the court hearing of his father in 2014, his status as a failed asylum seeker, or any combination of these if returned to Sri Lanka.

19. The Authority found the applicant does not meet the definition of refugee in s 5H(1) of the Act and the applicant did not meet the criteria pursuant to s 36(2)(a) of the Act.

20. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, 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 and affirmed the decision of the review.

Before this Court

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

   1. The Immigration Assessment Authority (IAA) committed jurisdictional error by failing to consider the applicant's claims that he feared persecution in Sri Lanka by reason of:

   (a) his Tamil ethnicity; and/ or

   (b) his status as a Tamil from a particular location.

   Particulars

   (i) The applicant made a clearly articulated claim to fear harm due to his Tamil ethnicity if he returned to Sri Lanka.

   (ii) The applicant's claim to fear harm due to his status as a Tamil from a particular location clearly emerged from the materials before the IAA.

   (iii) The IAA considered the applicant's claims to fear harm due to “his links to the LTTE, his illegal departure and his status as a failed asylum seeker”: IAA reasons at [9] (last bullet point).

   (iv) The IAA considered whether the applicant would face a real chance of harm based on his specific profile arising from his “mistreatment by the Navy, the abduction of his friend [and] and his father’s 2014 court hearing”: IAA reasons at [48].

   (v). The IAA failed to consider the applicant’s separate, more general claims that he had a justified fear of persecution in Sri Lanka:

   (A) as a Tamil; and/or

   (B) as Tamil from a particular location

   2. The IAA committed jurisdictional error by misapplying the statutory test in s473DD of the Migration Act 1958 (Cth) (Act) in determining whether it could have regard to the translated news article published on 19 September 2012 (2012 Article).

   Particulars

   (i) The applicant claimed to fear harm if he returned to Sri Lanka due to (inter alia):

   (A) as a Tamil; and/or

   (B) as Tamil from a particular location

   (ii) The applicant claimed that one of his close friends, named at para [25] of his Statement (CB 70), was abducted on 12 September 2012.

   (iii) The 2012 Article stated (inter alia) that (CB 156):

   (A) a “youth from A area, V” had been “abducted by members of the majority race”;

   (B) the person abducted was the person named at para [25] of the applicant’s Statement;

   (C) the “[a]bducters spoke fluent Sinhalese”;

   (D) “Tamil armed groups did not carry out this abduction”; and

   (E) “such incidents are again causing fear among people”.

   (iv) The IAA found that the 2012 Article “relate[d] to a report of the abduction of a Tamil man from the Jaffna district of Sri Lanka in 2012”: IAA reasons at [5].

   (v) In respect of 2012 Article, the IAA found that s 473DD(b)(ii) of the Act had not been met because (IAA reasons at [5]);

   (A) the 2012 Article did not “refer to the applicant, or suggest that the applicant’s conclusions… that the abduction was related to the applicant… are true”; and

   (B) “[g]iven these circumstances”, the IAA was “not satisfied that the article contain[ed] credible personal information that was not previously known which may have affected the consideration of the applicant’s claims” (emphasis in original).

   (vi) In making the finding described at (v) above, the IAA misapplied the test in s 473DD(b)(ii) of the Act by:

   (A) proceeding on the misunderstanding that the 2012 Article could only satisfy that test if that new information referred to or was about the applicant; and/or

   (B) failing to have regard to the applicant’s claims to fear persecution based on his Tamil ethnicity and/or his status as Tamil from a particular location when determining whether the 2012 Article may have affected the consideration of the applicant’s claims.

   (vii) The errors described at (vi) above infected the IAA’s conclusion that it was prevented from considering the 2012 Article by application of s 473DD of the Act.

Ground 1

1. In relation to ground 1, Ms Winnett of counsel, on behalf of the applicant, contended that there was a general claim of Tamil ethnicity that the Authority had failed to address in its reasons. Ms Winnett took the Court to the applicant’s statement in support of his protection visa where he referred to his Tamil ethnicity, as well as to the delegate’s reasons dealing with the applicant’s claims. Ms Winnett, by analogy, submitted that the Authority had not engaged in the same type of reasoning as the delegate did. The delegate’s reasons in that regard refer to a DFAT country report which was the same DFAT country report cited on a number of occasions by the Authority in its consideration of the applicant’s claims.

2. There is no substance in ground 1. The Authority expressly found in paragraph 55 that the applicant would not face a real chance of harm arising from his ethnicity and origins. On a fair reading of the Authority’s reasons, that reflected both what has been described in the applicant’s submissions as the ethnicity claim and the origin claim. The Authority’s reasons are not to be read with a keen eye for error and the reasons as summarised above made dispositive findings in respect of the applicant’s claims. There is no integer of the applicant’s claims that the Authority failed to consider. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Ms Winnett submitted that there were two errors made by the Authority in its consideration of a particular report, being the 2012 article. The first argument that is advanced is that there was an error in the application of s 473DD(b)(ii)of the Act, in that it is asserted the Authority erroneously assumed that credible personal information must be about the applicant. A fair reading of the Authority’s reasons does not support any such erroneous construction in the determination of whether or not there were exceptional circumstances to justify considering this new information. No error of that kind is made out.

2. The next submission is that there was a failure by the Authority to expressly refer to the ethnicity and origin status claim of the applicant. To the extent that the Authority referred to the respective limbs under s 473DD(b) of the Act, there is no warrant for inferring that the Authority was excluding from the circumstances the claims that had been advanced by the applicant. There was no need for the Authority in its considerations under s 473DD of the Act to expressly refer to the applicant’s ethnicity and origin from the Northern Province. The Authority’s reasons are to be read as a whole and the reasons as summarised above reflect taking into account both the applicant’s ethnicity and the applicant’s origin. No jurisdictional error as alleged in ground 2 is made out.

Conclusion

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

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 September 2018