Api17 v Minister for Immigration

[2019] FCCA 3275

FEDERAL CIRCUIT COURT OF AUSTRALIA

API17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3275

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider the claim of real chance of detention if applicant returned to Sri Lanka – whether Authority erred in failing to consider possibility that death of applicant’s second brother linked to Sri Lankan Army – whether Authority erred in making a finding that was illogical, unreasonable – no jurisdictional error made out – amended application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 476

Applicant: API17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 82 of 2017

Judgment of: Judge Street

Hearing date: 13 November 2019

Date of Last Submission: 13 November 2019

Delivered at: Perth

Delivered on: 13 November 2019

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Hodges Legal

Solicitors for the Respondents: Mr A Gerrard
AGS

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Leave is granted to the applicant to rely upon the amended application annexed to the submissions filed on 2 November 2019.

3. Leave is granted to the applicant to rely upon ground 3 as if extended to the failure to consider an integer of the applicant’s claims in respect of his fear of the SLA.

4. The amended application is dismissed.

5. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDERS: 13 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 82 of 2017

API17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 13 January 2017 affirming the decision of a delegate not to grant the applicant a Safe Haven Enterprise visa.  

2. The applicant was found to be a citizen of Sri Lanka and the applicant’s claims were assessed against that country. On 8 November 2012, the applicant arrived in Australia as an unauthorised maritime arrival. On 24 March 2016, the applicant applied for a Safe Haven Enterprise visa. The applicant claimed to fear harm by reason of what he alleged happened to his older brothers and being a Tamil born in a particular village in the Jaffna District in the Northern Province of Sri Lanka. In his statutory declaration, dated 29 March 2016, the applicant identified that he was not a member of or involved with the Liberation Tamil Tigers of Elam (“LTTE”). The applicant claimed he feared that what had happened to his brothers would happen to him, and that he would be arrested because he already had a record with the Sri Lankan Police having been suspected as an LTTE sympathiser. The applicant also claimed that he feared he could be arrested, tortured or even killed if he returned to Sri Lanka.

3. On 29 November 2016, a delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. By letter dated 5 December 2016, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. That letter attached a fact sheet and practice direction, which provided the applicant an opportunity to put on new information and submissions. The applicant did not provide any such new information or submission.

4. The Authority, in its reasons, identified the background to the application for review. The Authority also referred to the relevant law.

5. The Authority correctly identified that the applicant claimed to fear severe harm due to an imputed political opinion as a supporter of the LTTE, membership of a particular social group of Tamils from northern Sri Lanka, and being a failed asylum seeker who departed Sri Lanka illegally.

6. At paragraph 6 of its reasons, the Authority summarised the applicant’s claim for protection. The Authority noted the history of the applicant’s family, and in particular, that the applicant had two older brothers. The applicant claimed that one of his applicant’s brothers was taken for interrogation by the Sri Lankan Army (“SLA”) in about 1996 and never returned, and that his other brother disappeared in 2007. The applicant claimed that he assumes the second brother was also taken by the SLA. The applicant also made claims in relation to his family being displaced from their home between 2001 and 2006. After returning home in 2007, the applicant claimed that his family was often visited by the SLA, who asked about involvement with the LTTE. The applicant claimed that he and his younger brother became scared and went to live in Colombo in 2007.

7. The applicant also alleged that in about November 2007, he was arrested on suspicion of being involved with the LTTE.  The applicant alleged that he was then held by the Terrorist Investigation Department (“TID”) for about one month. The applicant claimed that he had been detained by the TID and was questioned about his missing brothers and their involvement with the LTTE. The Authority noted that the applicant was released and returned to his home village in Jaffna. The Authority also noted that, according to the applicant, the applicant was questioned by the Criminal Investigation Department (“CID”) on four or five occasions. The applicant claimed that his life would be in danger if he stayed in Sri Lanka and so he left for Australia.

8. The Authority accepted that the applicant was a young Tamil male from the north of Sri Lanka and that he had been seen as a possible LTTE sympathiser or supporter. The Authority noted that the applicant has not claimed to have any involvement with the LTTE other than his eldest brother, who was taken by the SLA in 1996 and remains missing. The Authority was satisfied that the same brother died at the hands or in the custody of the SLA, and may have been under suspicion for supporting the LTTE. The Authority also referred to the age of the applicant at the time his brother was taken.

9. The Authority noted that the applicant does not claim that any other of his family members were detained or questioned in relation to his brother prior to the applicant’s arrest in 2007, some 10 years later. The Authority, however, was satisfied that the SLA visited the applicant’s family home during the period of conflict and questioned the applicant’s family about involvements with the LTTE. The Authority was satisfied that the applicant’s family was visited in the context of military operations in a contested area.

10. The Authority also took into account that the applicant did not claim that any other young males in his family were taken for further questioning at or during that time, or that any of his family members were mistreated or tortured. The Authority was not satisfied that the applicant or any other living family member was suspected of being involved with the LTTE, beyond the general suspicion that all Tamils faced at that time.

11. The Authority referred to the applicant’s belief that his second eldest brother was also taken by the SLA. The Authority referred to the applicant’s evidence that this brother was driving a truck between Jaffna and Colombo in 2007 and failed to return home. The Authority referred to the fact that neither the SLA, nor any other organisation, came looking for this brother and that this brother was not the subject of any claimed links to any paramilitary organisation. In these circumstances, the Authority was satisfied that this brother is still missing, and most probably deceased. The Authority was not, however, satisfied that this can be attributed to the SLA, as the applicant believes.

12. The Authority referred to the arrest of the applicant on 3 November 2007 and that he was released from detention on 24 December 2007, making a total detention period of about seven weeks.

13. The Authority accepted the applicant’s claims that he was mistreated while in custody. The Authority also accepted that the applicant was questioned about his missing brothers. The Authority accepted that the applicant’s brothers being missing would have been a matter of interest to the TID and led to further questioning. The Authority, however, was satisfied that the applicant’s arrest and detention were both part of the general security situation in Sri Lanka and not indicative that the applicant was suspected of a particular involvement with the LTTE.

14. The Authority referred to the charge in respect of the applicant’s arrest and that there was a translation identifying the reason for arrest as being “on suspicion that information was provided.” The Authority observed that if the applicant had been suspected of involvement with or membership of the LTTE or other terrorist organisations, the Authority would expect the arrest record to note that as the reason.

15. The Authority also referred to the fact that the applicant was then released after the seven week detention without charge or conviction. The Authority found this fact supported a finding that the authorities, following the applicant’s release, did not have a particular suspicion of the applicant as an individual. The Authority found that this was further supported by the fact that even though the applicant returned to the north of Sri Lanka where the police and security involvement was greater than in Colombo, he was not the subject of further arrests.

16. The Authority accepted that the applicant was questioned by the CID in Jaffna on a number of occasions following his return to the north. The Authority noted that the applicant had not claimed that he was arrested, detained or mistreated on these occasions, and that the applicant did not claim that any other members of his family had been questioned or harassed. The Authority was satisfied that this questioning was no more than routine that the applicant did not, and does not, have a particular adverse profile with the Sri Lankan authorities. The Authority was satisfied that the applicant will not now be imputed with support for the LTTE, including on the basis of his previous arrest, detention or questioning.

17. The Authority referred to the United Nations High Commissioner for Refugees (“UNHCR”) guidelines in relation to LTTE risk profiles, which included a reference to persons with family links to persons with other such profiles. The Authority was satisfied that the applicant may fit into that category because of his eldest brother’s claimed position as a truck driver for the LTTE. The Authority also accepted that the applicant may have been suspected of being a general supporter or sympathiser of the LTTE in 2007 because he was a Tamil. The Authority, however, found that any interest the TID or CID may have had in the applicant or his brothers was not such that the applicant would now be considered a person of adverse interest.

18. The Authority referred to other country information. The Authority was satisfied that the applicant has not and will not be imputed with membership of the LTTE. The Authority found that the applicant is at the lowest end of the low-risk profile. The Authority was satisfied that any risk the applicant may face is remote. The Authority was satisfied that the applicant does not face a real chance of serious harm on the basis of an imputed anti-government/pro-LTTE opinion, or real or imputed links to the LTTE or persons involved with the LTTE.

19. The Authority referred to the applicant’s fear of harm by reason of being a Tamil. The Authority found that the applicant does not face a real chance of serious harm on the basis of being a Tamil. The Authority found that the applicant does not face a real chance of serious harm on the basis of being a Tamil male from the north.

20. The Authority referred to the applicant’s illegal departure from Sri Lanka. The Authority accepted that the applicant may be questioned on return to Sri Lanka as part of the airport screening process. The Authority was not satisfied that the applicant has an imputed anti-government or pro-LTTE profile, and found that there is not a real chance the applicant would be harmed or mistreated because he is a returning asylum seeker.

21. In the last sentence of paragraph 35 of the Authority’s reasons, there is an obvious typographical error in the missing “not”, which is consistent with the second clause of that cumulative sentence. It was not suggested that there was a finding in the first clause that had been made favourable to the applicant.

22. The Authority referred to the applicant being charged under the Immigrants and Emigrants Act of Sri Lanka.  The Authority found that any questioning and detention the applicant may experience because of his illegal departure would be relatively brief, and would not constitute serious harm as non-exhaustively defined in the Act. The Authority also found that the Immigrants and Emigrants Act is a law of general application. The Authority was not satisfied that the applicant being fined, detained and questioned under the  Immigrants and Emigrants Act would constitute serious harm, and found that it would be the exercise of laws of general application that apply to all Sri Lankans equally.

23. The Authority was not satisfied that the applicant will face a real chance of serious harm on the basis of his ethnicity, his real or imputed political opinion (being support or sympathy for the LTTE) or his being a returned asylum seeker who departed Sri Lanka illegally.

24. The Authority found that the applicant did not meet the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Grounds

The grounds in the amended application are as follows:

1. The IAA committed jurisdictional error by not considering the claim that there is a real chance of the applicant being detained, potentially indefinitely, because of a possible renewed interest by Sri Lankan security agencies. This claim arises as a result of the cumulative effect of his previous suspicion, his imprisonment and his illegal departure.

PARTICULARS

a. The applicant was suspected of having links with the LTTE and was detained for 7 weeks in the Terrorist Investigation Department and most notorious Boosa Detention Camp.

b. At paragraph 14 of its decision, the Authority accepted that the applicant had been arrested on 3 November 2007 and was released on 24 December 2007. The Authority also accepted, at paragraph 15, that the applicant was mistreated while in custody.

c. When considering whether the applicant would face harm upon return, at paragraph 3 8, the Authority held that it was satisfied that there was no prospect that the applicant would be given a custodial sentence.

d. When making the finding above, the Authority neglected to consider the applicant's profile as a failed asylum seeker with a prior history of detention.

e. The Authority failed to consider whether the cumulative effect of the previous suspicion of him, coupled with his current asylum seeking, results in a new profile of the applicant as a person of adverse interest to the Sri Lankan security intelligence.

2. The Authority erred in failing to consider the possibility that the applicant's second brother's death was linked to the SLA.

PARTICULARS

a. At paragraph 6, the Authority noted that the applicant claimed that one of his eldest brothers disappeared in 2007 and that he assumed he was taken by the SLA.

b. At paragraph 11, the Authority accepted that the applicant's first brother died at the hands of or in the of the SLA and may have been under suspicion for supporting the LTTE.

c. Although the Authority accepted, at paragraph 13, that the applicant's second brother had been missing since 2007, it was not satisfied that the SLA was involved.

d. The finding above was based on the lack of evidence provided by the applicant in relation to the second brother's interactions with the L TTE and the SLA.

e. In these circumstances, the Authority ought to have considered the possibility that the applicant's second brother was taken by the SLA. It follows that the Authority should have considered whether the applicant faced a real chance of harm on this basis.

3. The Authority erred in making a finding that was illogical, unreasonable.

PARTICULARS

f. At paragraph 6, the Authority noted that the applicant claimed that his second brother disappeared in 2007 and that he assumed he was taken by the SLA.

g. At paragraph 11, the Authority accepted that the applicant's first brother died at the hands of or in the of the SLA and may have been under suspicion for supporting the LTTE.

h. Although the Authority accepted, at paragraph 13, that the applicant's second brother had been missing since 2007, it was not satisfied that the SLA was involved.

i. The finding above was based on the lack of evidence provided by the applicant in relation to the second brother's interactions with the LTTE and the SLA. The applicant produced little or no corroborative evidence that the first brother was taken by the SLA and yet it was accepted.

j. There was no logical reason why the Authority could find that the eldest brother was taken by the SLA while the second brother was not.

Ground 1

1. In relation to ground 1, Mr Hodges, solicitor for the applicant, submitted that the Authority did not consider the claim that there is a real chance the applicant would be detained potentially indefinitely because of possible renewed interest by the Sri Lankan security agencies. Mr Hodges contended that this claim arises because of the cumulative findings made by the Authority in relation to the applicant’s family and personal history. No such claim was made on the material before the Authority. No such claim fairly arose on the material before the Authority. No jurisdictional error relating to ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Hodges submitted that at paragraph 13 of the Authority’s reasons, the Authority made a finding that was the subject of doubt. No such doubt is expressed in the language of the Authority. No jurisdictional error is made out in respect of ground 2.

Ground 3

1. In relation to ground 3, Mr Hodges submitted that the finding of the Authority in relation to the applicant’s fear of harm and his second brother not having been taken by the SLA was illogical and unreasonable. In the course of the argument, it became apparent that Mr Hodges was actually seeking to advance two arguments. The first argument was based on alleged illogicality and unreasonableness flowing from paragraph 13 of the Authority’s reasons.  The second argument was to the effect that there was an integer of the applicant’s claim that he feared harm from the SLA that had not been the subject of a finding by the Authority. The Court granted leave to Mr Hodges to expand ground 3 without requiring the filing of a further amended application.

2. In relation to the proposition that the finding in paragraph 13 of the Authority’s reasons was illogical or unreasonable, this is, in substance, an invitation to the Court to engage in merits review. The adverse finding by the Authority in respect of the applicant’s assumption that his brother had been taken by the SLA was a finding that was open to the Authority and cannot be said to lack an evident and intelligent justification. The evident and intelligible justification is revealed by the Authority’s reasons as summarised above, including the release of the applicant and the finding that the applicant is not now a person of adverse interest. The submission that the applicant’s circumstances, including what occurred to his brother, gave rise to the Authority’s ultimate findings in respect of the 1951 Refugee Convention or complementary protection being illogical or unreasonable are, again in substance, an invitation to the Court to engage in merits review. The Authority’s findings were open, logical and rational.

1. The proposition that there was no logical reason why the Authority could find the eldest brother was taken by the SLA while the second brother was not is without merit. The Authority identified that the first brother was taken for interrogation by the SLA almost 10 years earlier. Further, the Authority referred to what occurred in relation to the second brother as not reflecting circumstances where he was taken for interrogation by the SLA, but one where he had been driving a truck between two particular locations and failed to return home.

2. The Authority also took into account a logical and rational further reason in respect of the absence of the SLA or any other organisation looking for the applicant’s second brother, and the absence of any links by this brother to any paramilitary organisation. In these circumstances, the adverse finding in paragraph 13 of the Authority’s reasons cannot be said to lack an evident and intelligible justification. Accordingly, so far as the first limb of ground 3 is concerned, the adverse finding in paragraph 13 of the Authority’s reasons was not illogical and unreasonable, nor can it be said that the Authority’s adverse finding in relation to the criteria under the 1951 Refugee Convention and/or in relation to complementary protection was illogical or unreasonable.

3. In respect of the expanded ground, Mr Hodges again took the Court to the material referable to the applicant’s claimed fear of harm and the applicant effectively fearing happening to him what had happened to his two brothers. Whilst that is a correct reference to what the applicant had said in his statement, it was a reference to what the applicant feared by reason of being imputed to be a supporter of the LTTE and/or imputed membership of that association. The Court does not accept that there was any integer of the applicant’s claim that was not the subject of a dispositive finding. The adverse finding in paragraph 23 of the Authority’s reasons subsumed the applicant’s claimed fears in respect of the same thing happening to him as happened to his brother. No jurisdictional error alleged in ground 3 as formulated in the application or as expanded is made out.

4. As the amended application fails to identify any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 13 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date: 17 January 2020