APC17 v Minister for Immigration

[2018] FCCA 880

FEDERAL CIRCUIT COURT OF AUSTRALIA

APC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 880

Catchwords:
MIGRATION – Safe Haven Enterprise Visa application – review of Immigration Assessment Authority – whether the Authority erred in failing to consider a component of the applicant’s claim – Authority incorrectly stated and applied the wrong test regarding the applicant’s claims when considering imputed links to the LTTE – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Applicant: APC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 423 of 2017

Judgment of: Judge Smith

Hearing date: 12 March 2018

Date of Last Submission: 12 March 2018

Delivered at: Sydney

Delivered on: 12 March 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges, Hodges Legal

Counsel for the First Respondent: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 423 of 2017

APC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 19 January 2017.  The Authority affirmed the decision of a delegate of the Minister to refuse to grant the applicant a Safe Haven Enterprise Visa (SHEV). 

2. The applicant is a citizen of Sri Lanka who arrived in Australia via the Cocos Islands on 25 September 2012 by boat without a visa. This meant that he was unable to make a valid application for a protection visa until the Minister exercised his discretion to allow him to do so.  After the Minister exercised that discretion, the applicant lodged an application for a visa on 6 October 2015. 

3. The applicant’s claims in support of that application are summarised in the respondent’s submissions at [2] which I set out below and I adopt those for the purpose of this judgment. 

   2.The applicant is a male citizen of Sri Lanka who arrived in Australia by boat on 25 September 2012: CB 108.5.  He applied for a SHEV on 6 October 2015: CB 11-73.  He claimed to fear harm in Sri Lanka on the basis of his Tamil ethnicity, imputed political opinion and as a failed asylum seeker.  In his SHEV application, the applicant claimed his younger brother was killed in a shelling attack by the SLA in 2009.  In submissions later provided to the Authority, the applicant subsequently claimed his brother was a member of the LTTE, and a martyr, and the authorities would target him on return to Sri Lanka because of his brother’s involvement.  The applicant also asserted his uncle was “involved” in the LTTE. In July 2011, the applicant alleged he was forcibly taken from his home in a van and forced to vote for the Eelam People’s Democratic Party (EPDP).  In June 2012, when the applicant was working at a driving school in Jaffna, four members of the EPDP pressured him to pass two of them and grant them licences.  The applicant claimed that on 1 July 2012, he was stopped by an SLA officer and questioned as to his destination for 45 minutes, while a gun was pointed at his chest.  The applicant claimed he had similar experiences with the SLA on three other occasions in 2012.  It was these events which led to the applicant departing Sri Lanka on 9 September 2012.  He also claimed that since departing Sri Lanka, he had been told by his aunt that army and/or civilians had gone to their home asking about him and his uncle’s whereabouts.  The applicant claimed they also attended his mother’s home and asked about the applicant and his uncle.  For the first time at the SHEV interview, the applicant raised a claim that his family was in a property dispute over farming land with a Tamil speaking Sinhalese man from Colombo.

4. On 14 September 2016, a delegate made a decision to refuse to grant the applicant a visa and in light of all the circumstances, that decision was a fast track reviewable decision and the matter was referred to the Authority to review.

Background

1. The Authority made a decision on 19 January 2017.  As part of its reasons it set out its consideration of the new information provided by the applicant to it after the delegate’s decision[1].  No complaint is made about the Authority’s reasoning in that respect.  Otherwise, its reasons for decision are summarised at [3] - [10] of the respondent’s submissions as set out below, which again I adopt as accurate. 

   3.The Authority found the applicant’s evidence to be generally consistent with country information about the systematic mistreatment and harm of Tamils during the civil war (pars 17-19).  However, the Authority found it “significant” that the applicant had never claimed to have faced an extended detention or other more serious interrogation and mistreatment (such as torture) from the EPDP, SLA, CID or any Sri Lankan authority.  The Authority concluded the applicant was “never seriously” considered by the SLA or authorities to be connected or associated with the LTTE. The Authority also noted the applicant was issued a passport in June 2012, which was another “potential indicator” he was not considered a security risk by the authorities (par 20).

   4.While the Authority accepted the applicant’s aunt and mother may have been questioned about his and his uncle’s whereabouts, the Authority was not satisfied this was indicative of any profile or connection to the LTTE, or that the authorities were interested in him for any reason other than the fact that he was absent from his home area (par 22).  Further, the Authority held the applicant’s knowledge of his uncle and claimed involvement in the LTTE to be vague.  The Authority did not accept the applicant’s uncle had an LTTE profile or had any connection to the applicant, other than a “distant family connection” (par 23) and concluded the applicant had no connection to the LTTE, nor did he support the group (pars 24-25).

   5.The Authority found it difficult to accept the applicant’s brother could be involved with the LTTE without his family’s knowledge, “even allowing” for their displacement during the conflict (par 28).  The Authority found the applicant and his family knew of the brother’s involvement with the LTTE, and this was why his body was desecrated after he was killed in a shelling accident.  The Authority held the applicant sought to conceal the brother’s involvement, “perhaps” through fear of the implications for his application (par 31).  The Authority was satisfied no further serious harm or interest came to the applicant, or his family, from this brother’s involvement and that “any connection” he had through his immediate family was “severed” on the death of his brother (par 32).

   6.On the basis of country information, the Authority did not accept that the applicant’s time in Australia, as an asylum seeker, would impute him with any LTTE profile (par 34).  Nor did it accept that the applicant would face a real chance of being seriously harmed on return to Sri Lanka as a Tamil Hindu and a Tamil male returning to the north of the country (par 37).  In view of the country information about the improved situation for Tamils, the Authority found there was not a real chance of the applicant being targeted for reasons of his ethnicity, religion, language, through any imputed or actual political opinion or association with the LTTE as a result of being a Tamil from the north, or for his past family connections to the LTTE (par 42-44).

   7.The Authority accepted the applicant had been threatened by the EPDP at the driving school in 2012, forcibly taken by the EPDP and forced to vote for an EPDP candidate during elections in 2011.  However, the Authority found he was not of ongoing interest to the EPDP after the incidents.  The Authority also accepted his family had faced issues accessing utilities due to EPDP influence.  However, given the applicant’s lack of any ongoing profile with the EPDP, his low level support of the TNA, the diminishing presence of the EPDP, and the increased presence and influence of the TNA in the north of the country, the Authority was not satisfied there was not a real chance of the applicant, or his family, facing serious harm from the EPDP for any reason should he return to live in Sri Lanka.  For those reasons, the Authority also found there was not a real chance that the applicant’s family would continue to be denied access to essential utilities through EPDP corruption and influence (par 55).

   8.In relation to the property claim raised at the SHEV interview, the Authority found the applicant’s evidence that the men who threatened his mother were with the SLA or CID, to be speculative (par 67). The Authority noted that many Tamils had difficulties in accessing basis necessities such as shelter, food, water and sanitation when returning to their home areas (par 68) and did not accept the family was being targeted by the SLA or CID to acquire their property, or because he was in Australia (par 69). The Authority was not satisfied that the “private dispute” was motivated by any of the grounds under s 5J(1) of the Migration Act 1958 (the Act) and it followed that any harm the applicant and his family would face in connection with the property dispute was not persecution for the purposes of the Act (par 70).

   9.The Authority considered country information about entry procedures upon arrival in Sri Lanka and was satisfied that upon return the applicant would be held on remand for a number of hours and then released or discharged upon payment of a fine or bail (par 78). The Authority found that there was no evidence to indicate that the applicant would not be able to pay the fine or bail imposed in relation to his illegal departure (par 79). As the Authority did not accept that the applicant had links or would be perceived as having links to the LTTE, it was satisfied that the applicant would not be detained for a lengthy period of subjected to serious harm or significant harm (par 83). It found that the procedures the applicant would undergo on return did not amount to serious harm and was satisfied that he would be charged, convicted and fined for his illegal departure but this did not amount to serious or significant harm (par 83). As a separate and independent basis for finding the applicant would not be at a real risk of serious harm, the Authority was satisfied that the provisions and penalties of the I&E Act were the result of a law of general application and would not constitute persecution for the purposes of the Act (par 85). It followed that the applicant did not meet the criteria in s 36(2)(a) (par 87).

   10.Having not accepted that the applicant faced a real chance of harm on return to Sri Lanka (pars 90-92), the Authority was also not satisfied that the applicant would face significant harm for any of those reasons (par 93). The Authority concluded the applicant did not meet s 36(2)(aa) of the Act (par 94).

Consideration

1. There are two grounds in the application.  As set out in the application itself, the first ground is that the Authority fell into error in assuming, without consideration, that threats which do not lead to violence or detention cannot amount to serious harm, and so the Authority failed to consider a component of the applicant’s claim.

2. This ground essentially focuses on [20] of the Authority’s reasons, which states:

   While I accept the harm experienced by the applicant and his family, I find it significant that the applicant has never claimed to have faced an extended detention (in terms of days or longer) or other more serious interrogation and mistreatment such as torture from the EPDP, the SLA, the CID or any Sri Lankan authority. This indicates to me that while he may have been questioned about LTIE involvement as a Tamil male living in these areas, he was never seriously considered by the SLA or the authorities to be connected or associated with the group. If it were otherwise, I find that he would have been detained for more in severe interrogation or subject to harsher treatment, as many Ta mils who were seriously suspected of LTIE involvement were during and after the civil war.2 I note the applicant was issued a passport in June 2012, which is another potential indicator he was not considered a security risk by the authorities.

3. In his written submissions, the applicant argues that by making the finding in [20] that it was significant that the applicant had never claimed to face an extended detention or other more serious interrogation or mistreatment, the Authority placed undue weight on that fact that the applicant was never detained, and in doing so failed to consider that the threat of harm may amount to persecution.

4. In my view, that argument reveals a fundamental misunderstanding of the Authority’s reasons.  The Authority considered, as it was required to, what might occur to the applicant in the future.  It did so by reference to two sources of information.  First, what the applicant had said had happened to him, which it largely accepted, and secondly, country information about what treatment was dealt out to those with LTTE[2] connections by the Sri Lankan authorities in the past. It was essentially the difference between those two that was the subject of comment in [20].

5. That difference was significant in the view of the Authority because, in assessing the future prospect of harm, the Authority relied upon country information concerning the potential treatment of Tamils that indicated those with links to the LTTE were at risk.  Once the Authority’s reasons were understood and particularly on the basis of the whole of the Authority’s reasons, there is no error as asserted in the ground.  The Authority properly assessed what might occur to the applicant in the future on the basis of the inferences drawn from both of the two sources of information to which I have referred.

6. The Authority specifically dealt with the possibility of serious harm or persecution occurring to the applicant in the future by reference to what had occurred in the past and in particular, because of any connection that might be perceived with the applicant’s brother and uncle.  For those reasons, the first ground is rejected. 

7. In the applicant’s written submissions there appears on page 6, (sub-pars.(f) - (h)) to be a slightly different argument.  However, it was explained essentially in oral argument that those particulars more readily belong to ground 2.  For that reason, I leave those to one side in respect of ground 1. 

Ground 2

1. The second ground is that the Authority incorrectly stated the applicant’s claims and applied the wrong test in considering the applicant’s imputed links to the LTTE.  It was argued that the Authority did not properly assess the risk to the applicant should he be returned because of his family links with his brother “who was an LTTE member, possibly fighter or ‘cadre’”. In my view, this ground really only takes issue with the merits of the Tribunal’s finding.

2. The fact that it does so is revealed by submissions, such as that the Authority did not properly assess the matter or did not properly analyse the risk of the claims.  Inherent in the use of the word, “properly” is an assertion that the Authority made wrong findings about those claims.  When the Authority’s reasons are understood there is, in my view, no error involved in its dealings with the claims made by the applicant in respect of his brother, as accepted by the applicant.  The Authority found at [36] that there were “serious risks for those with genuine LTTE connections in Sri Lanka”.

3. The Authority was satisfied that the applicant had no such connections and so that there was no real chance of the applicant being seriously harmed for those reasons.  The basis upon which it arrived at that conclusion included its finding that the applicant’s brother had been involved in the LTTE, but that the authorities were aware of this when the applicant had come to the attention of the authorities, including in 2012. 

4. Critically, and this echoes what was referred to by the Authority in [20] of its reasons, the Authority relied on the basis of the information before it, (reference to which was given in its decision), that had there been any determination that the applicant was involved in, or had a real connection to the LTTE, or had the applicant been suspected of that involvement, the applicant would have faced a longer term of detention, interrogation and severe mistreatment, including torture.  Thus, it was on the basis of acceptance of part of the applicant’s claims in comparison with the other information before it, that the Authority came to the view that there was no real risk of serious harm or persecution in the future on the basis of the applicant’s connection to his brother, who was accepted to have been a member of the LTTE.

5. In that way, the Authority’s conclusions were based upon logical reasoning from inferences that were open on the material before it.  It expressly dealt with the claim raised by the applicant and for that reason, did not fall into jurisdictional error in the way asserted in the second ground. 

6. The applicant has not established any jurisdictional error and the applicant must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       13 April 2018

[1] Authority’s reasons for decision at [3] to [12].

[2] Liberation Tigers of Tamil Eelam.