AQR17 v Minister for Immigration

[2017] FCCA 2506

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQR17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2506

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – adverse credibility findings by the Authority were open – there was no material evidence that the Authority overlooked or failed to deal with – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476

Applicant: AQR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 462 of 2017

Judgment of: Judge Street

Hearing date: 17 October 2017

Date of Last Submission: 17 October 2017

Delivered at: Sydney

Delivered on: 17 October 2017

REPRESENTATION

Counsel for the Applicant: Mr B Zipser by direct access

Solicitors for the Respondents: Ms K Hooper
HWL Ebswoth

ORDERS

1. Grant leave to the applicant to rely upon the amended application attached to the outline of submissions filed on 3 October 2017 and dispense with the need for the filing of an electronic copy.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 462 of 2017

AQR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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, made on 12 January 2017, affirming a decision of the delegate not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil, from a particular district in the Northern Province and arrived in Australia on 7 September 2012 as an unauthorised maritime arrival.  On 5 January 2016, the applicant lodged a valid application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

3. The delegate refused to grant the applicant the visa on 31 August 2016 and found the applicant failed to meet the criteria under the Act.

4. The applicant claimed to fear harm in summary, due to his steps in alerting the Grama Sevaka (GS) of the incident said to have occurred on 20 September 2008, by reason of his Tamil ethnicity, his illegal departure from Sri Lanka, and by reason of being a person who applied for asylum abroad. 

The Authority’s decision

1. On 5 September 2016, the Authority wrote the applicant identifying that the matter had been referred to the Authority for review. The Authority’s letter identified that there were only 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 new information and submissions. The Authority in its reasons dated 12 January 2017, identified the applicant’s background to the visa application. The Authority identified, having regard to the information referred under s 473CB of the Act.

2. The Authority identified the applicant’s claims, including an alleged incident on 20 September 2008, at which the applicant’s friend’s father was shot and killed by persons believed to be officers of the criminal investigation department (CID). The applicant alleged that later that day, men believed to be CID officers discovered the applicant had identified the GS of the shooting, and the applicant was advised by the GS not to stay at home. The applicant alleged that he stayed at his sister’s house, two kilometres away, and that armed men attended his parents’ home in search of him, and threatened and physically assaulted his parents. The applicant alleged that, several days later, the applicant returned home and then fled when he heard the sound of motorbikes approaching, and then went to his aunt’s home where he stayed for a short period. The applicant alleged that whilst at his aunt’s home, men on motorbikes went to his home and again, physically assaulted his parents and some friends who were visiting. The applicant concluded that it was not safe to stay at his family home, and fled to Negombo, in the Western province, where he then resided with a friend. The applicant alleged the particular incident occurred whilst in Negombo in August 2012, shortly prior to his departure and arrival in Australia.

Consideration of the applicant’s claims

1. The Authority correctly identified the relevant law. The Authority accepted part of the applicant’s claims in relation to his history in 2001.  The Authority noted the applicant was able to depart Sri Lanka in 2001 and return in 2007 without difficulty. The Authority was not satisfied the applicant faces a real chance of serious harm on account of the events leading up to his departure from Sri Lanka in October 2001, including any actual or imputed familial links to the LTTE upon his return to Sri Lanka, now or in the foreseeable future.

2. The Authority referred to the applicant leaving Qatar in 2007 and returning to Sri Lanka, because the situation had resolved. The Authority noted the applicant did not suffer any difficulty upon re-entering Sri Lanka in 2007. The Authority made reference to the alleged incident on 20 September 2008, and accepted that an incident occurred, involving a friend’s father being shot and killed and the applicant attending the scene. The Authority then made reference to the applicant’s assertion that he reported the incident to the GS. In this regard, the Authority noted there were significant discrepancies between the claims made for the Safe Haven Enterprise statement and what the applicant advised the delegate in the Save Haven Enterprise interview.

3. The Authority identified inconsistencies, including inconsistencies in relation to the handing over of an identity card.  The Authority found, overall, the applicant’s evidence pertaining to the events that followed his claimed reporting to the GS, to be inconsistent with his Safe Haven Enterprise statement, and found that this undermined the applicant’s credibility. The Authority was not satisfied the applicant was recalling a genuine personal experience and found, in the circumstances, that it was implausible that the applicant came to the adverse attention of the CID or any other unknown armed group for reporting the killing of his friend’s father to GS. The Authority found it implausible that the armed men were able to locate the applicant’s family home in circumstances where he claimed to have provided his national identity card to the armed men. The Authority was prepared to accept that it was plausible that the applicant reported the shooting incidents to GS but, due to the discrepancies in relation to the applicant’s evidence, in relation to the events that followed, the Authority did not accept that the applicant came to the adverse attention of the CID or any other group on 20 September 2008.

4. The Tribunal found that it followed that the Tribunal rejected the applicant’s associated claims that he and his family have since come to the adverse attention of the CID or any other armed group in connection with the shooting, or the applicant’s claimed interactions with the CID/armed men. The Authority was not satisfied the applicant faced a real chance of serious harm from the CID or any other armed group in connection with the death of his friend’s father on 20 September now or in the foreseeable future.

5. The Authority accepted that whilst the applicant was living in Negombo, he experienced low level harassment from the Sinhalese majority.  The Authority accepted that the applicant may still encounter a degree of societal discrimination, but was not satisfied that this would amount to serious harm. The Authority concluded that the applicant is not a person that country information suggests faces a real chance of serious harm, by virtue of his Tamil ethnicity. The Authority was not satisfied the applicant faces a real chance of serious harm due to his ethnicity or his previous experiences in Negombo upon his return to Sri Lanka, now or in the foreseeable future.

6. The Authority took into account the applicant’s claim of being a failed asylum seeker returning from Australia and that he was a person who had departed Sri Lanka illegally. The Authority was not satisfied the applicant faces a real chance of serious harm due to being a failed asylum seeker from Australia now or in the reasonably foreseeable future, if he returns to Sri Lanka.

7. In relation to the applicant’s illegal departure, the Authority found the applicant would be charged and fined under the Immigrants and Emigrants Act and then released. The Authority took into account the prison conditions to which the applicant may be subjected but found they do not of themselves, constitute serious harm as defined by the Act. The Authority found that it was not satisfied the applicant will face a real chance of serious harm during any brief time spent in detention. The Authority found the imposition of a fine, surety or guarantee would not of itself constitute serious harm. The Authority was satisfied that the provisions and penalties of the Immigrants and Emigrants Act are laws of general application that apply to all Sri Lankans equally. The Authority found the law is not discriminatory in its terms, nor is there any country information that indicates the law is applied in a discriminatory manner or that it is enforced selectively.

8. The Authority found that the applicant does not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia or for any other reason. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act. The Authority found that the applicant failed to meet the definition of refugee in s 5H(1) of the Act and that the applicant does not meet the criteria under s 36(2)(a) of the Act.

9. The Authority was not satisfied there is a real risk the applicant will face significant harm during the investigation process while being held at the airport. The Authority was not satisfied that the applicant will face a real risk of significant harm during any brief time spent in detention. The Authority referred to the applicant being subjected to questioning and being required to pay a fine and/or provide a surety on return but was not satisfied that this amounts to significant harm.

10. The Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned 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 under review.

Before this Court

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

   1. The applicant claimed that shortly after 20 September 2008 he fled from his home village of Muthalaikuli to Negombo as it was not safe for the applicant to remain in Muthalaikuli. The Immigration Assessment Authority ( 'the IAA' ) accepted that the applicant moved from Muthalaikuii to Negombo around that time, but did not consider or deal with the applicant's claim that the reason or motivation for his move was because it was not safe for him to remain in Muthalaikuli. The IAA thereby overlooked and failed to deal with an aspect of the applicant's claims which is a jurisdictional error.

   2. In August 2013 the applicant provided a protection visa application to the Department which contained evidence of the applicant in support of his claims. The IAA overlooked or failed to deal with this evidence which is a jurisdictional error.

Ground 1

1. Mr Zipser of counsel submitted in relation to ground 1 that there was an integer of the applicant’s claim, being his motivation for leaving his home region and going to Negombo that was not the subject of finding by the Authority. Mr Zipser submitted that the present case was one in which there was a component integer, being the motivation for the applicant to flee to Negombo, that was not the subject of consideration and finding by the Authority and that therefore, the Authority had failed to properly conduct the review and had committed jurisdictional error.

2. Mr Zipser took the Court to the applicant’s statutory declaration in 2015, identifying his asserted reasons for fleeing to Negombo. It is apparent on a fair reading of the Authority’s reasons, that the Authority took into account the applicant’s claims and evidence and made adverse findings in relation to the applicant’s claims concerning the alleged consequences of the incident that occurred on 20 September 2008. Whilst the Authority accepted that the applicant may have reported the incident to the GS, the applicant’s claims thereafter were the subject of adverse credibility findings. Those adverse credibility findings subsumed the applicant’s evidence in relation to his claimed motivation. There was no failure by the Authority to address a component integer of the applicant’s claims. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, Mr Zipser of counsel took the Court to the statutory declaration made by the applicant at the time of the invalid application for protection and to the later statutory declaration of the applicant in 2015. Mr Zipser submitted that as there is no reference in the Authority’s reasons to the 2013 statutory declaration, it should be inferred that the Authority had overlooked the same in relation to its assessment of the credibility of the applicant and in particular, the adverse credibility findings concerning the inconsistencies in the applicant’s evidence in relation to the taking of his identity card.

2. The Authority’s reasons identify having regard to the whole of the material referred to the Authority and it is not necessary for the Authority to refer to every piece of evidence. There is no proper basis to infer that there was a failure by the Authority to take into account the 2013 statement. The adverse credibility findings by the Authority were open on the material before the Authority. The applicant has failed to establish that the Authority overlooked or failed to deal with any material evidence in the circumstances of the present case. No jurisdictional error as alleged in ground 2 is made out.

3. Accordingly, the amended application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 November 2017