ASO17 v Minister for Immigration

[2020] FCCA 567

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASO17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 567

Catchwords:
MIGRATION – Safe Haven Enterprise Visa – refusal – review by Immigration Assessment Authority (“IAA”) – whether IAA failed to consider a claim or an integer of a claim made by the visa applicant.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, s.473BB, 473CA, 474

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Applicant: ASO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 507 of 2017

Judgment of: Judge Cameron

Hearing date: 5 March 2020

Date of Last Submission: 5 March 2020

Delivered at: Sydney

Delivered on: 13 March 2020

REPRESENTATION

Solicitor for the Applicant: Mr M Jones of Parish Patience

Counsel for the Respondents: Mr J Kay-Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 507 of 2017

ASO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived in Australia on Christmas Island on or around 9 September 2012 without a visa.  On 7 March 2016 he lodged an application for a Safe Haven Enterprise Visa (“SHEV”) with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution Sri Lanka because of his Tamil ethnicity, his status as a failed asylum seeker from a western country without a passport and because his brother had been a member of the Liberation Tigers of Tamil Eelam (“LTTE”).  On 4 October 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”).  The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of its decision.

2. In these judicial review proceedings the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

FAST TRACK REVIEW LEGISLATIVE FRAMEWORK

1. On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. 

Definitions

1. Section 5(1) of the Act relevantly defines a “fast track applicant” as, relevantly, a person:

   (i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)who has made a valid application for a protection visa in accordance with the determination;

2. The applicant is a fast track applicant.

3. Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.

Fast Track Process and Procedures

1. Part 7AA of the Act sets out the IAA fast track process and procedures. Section 473CA is found in that part and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review. An IAA review is conducted on the papers.

STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA

1. Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:

   36 Protection visas—criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   …

   (2A)  A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

   5H Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

   (a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)the real chance of persecution relates to all areas of a receiving country.

   …

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   …

   (b)the persecution must involve serious harm to the person; and

   …

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   …

BACKGROUND FACTS

Protection visa claims

1. The facts alleged in support of the applicant’s claim for a protection visa were summarised by the IAA in its decision record as follows:

   a)during his childhood the applicant and his family were displaced by the Sri Lankan civil war and spent half a year in an army camp.  During this time, his father received a bullet wound and he received a speech impediment as a result of nerve gas;

   b)in 2006 X, the applicant’s brother, became a member of the LTTE navy.  At the conclusion of the civil war the Sri Lankan Army (“SLA”)  detained and tortured X in a prison camp for eight months and then the Criminal Investigations Department (“CID”) took him to Colombo where he was beaten and tortured;

   c)X was freed in May 2010.  The applicant supplied documents pertaining to X’s release.  However, these documents stated that X was released from a temporary camp and rehabilitated at that camp’s rehabilitation centre as opposed to from a prison camp as originally claimed by the applicant.  Upon release, X was required to report fortnightly to the police station and was constantly harassed by the CID.  On multiple occasions X was kidnapped, tortured, beat and detained and was once shot in the leg while trying to escape;

   d)the applicant elaborated on these events during his departmental interview.  He said that another group who he could not name had also abducted X.  When asked where the CID took X, the applicant vaguely said that he had been taken to “where the arms are buried” and then named two locations.  The applicant told the delegate that X refused to join the CID.  He told the delegate that X had told him this.  One time X was detained for four days, beaten and shot upon trying to escape.  The applicant said that after this incident their father took X directly to Colombo to escape to India as otherwise the CID would have searched for him;

   e)X attempted to escape for India in October 2010 but the agent informed the applicant’s family that he saw him being covered by a cloth and taken by the CID into a room at the airport and then taken from the airport.  X has not been found;

   f)the applicant came to the CID’s attention after X failed to report to the police station.  The Jaffna CID did not believe that X had been taken by the Colombo CID at the airport;

   g)in November 2010 the applicant was detained, beaten and asked for information about his brother. During his departmental interview the applicant claimed that thereafter this continued approximately one to three times each month and the CID took him to a CID camp;

   h)in February 2011, after the CID threatened to permanently detain him, his family helped him leave Sri Lanka.  The CID harassed his father for three months after he left.  The IAA noted inconsistencies between the applicant’s written claims and those made before the delegate during the interview;

   i)in the applicant’s written claims the applicant said his father was harassed by the CID for three months but during the interview said this occurred for two years. When asked by the delegate about the inconsistency, the applicant said:

   …his father supressed the information and told him it was only three months whereas his mother said it was 2 years and that was correct.

The IAA’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. Its reasoning and findings for this decision are summarised below.

2. The IAA accepted that:

   a)the applicant had a stammer caused by nerve gas and his father had been wounded by a bullet during the civil war;

   b)the applicant and his family had been displaced, had lived in an army camp for more than six months and around March 2010 were released;  and

   c)X had been in the LTTE navy, but the applicant had exaggerated X’s treatment after the end of the civil war;

3. The IAA agreed with the applicant’s legal representative’s submissions that the applicant had limited education and did not always understand the questions or the importance of providing comprehensive answers.  It also had regard to issues such as language barriers and possible traumatic experiences that might affect the applicant when presenting his claims.  Even so, it identified “significant inconsistencies” in his claims, had “significant concerns” about his credibility and formed the view that he had not been truthful regarding key elements of his claims. 

4. The IAA noted inconsistencies between the applicant’s supporting documents and his claims about X.  The applicant claimed that X was tortured and detained in a prison camp for eight months whereas the supporting documentation indicated that X was released from a rehabilitation centre in May 2010.  The IAA did not think it credible that the applicant had thought that the name of the rehabilitation centre was an alternative name for the prison camp.  While it accepted his submission that X was initially taken to the prison camp but later transferred to the rehabilitation centre, it noted that these submissions failed to explain why, according to the documents, X was released from the rehabilitation centre in May 2010 whereas the applicant claimed that X was released from Colombo by the CID in May 2010.

5. The IAA also noted that the applicant’s written claims indicated that he was detained by the CID in November 2010 and February 2011, whereas during the departmental interview he said he was taken every month and sometimes two or three times during a month.

6. The IAA noted the following inconsistencies between the applicant’s current written and oral evidence for his SHEV visa application and an earlier, invalid visa application.  This earlier application claimed that:

   a)X had been detained by the CID for six or seven months whereas it was only in his subsequent written and oral evidence that the applicant claimed that X continued to be harassed, detained, interrogated, tortured and on one occasion shot by the CID even after his release date;

   b)X attempted to travel to India in February 2011 as opposed to October 2010.  The IAA found that even if it accepted, as the applicant submitted it had, the discrepancy in dates arose from an entry visa interview mistake, he was on notice of this mistake because an interpreter had read his statement to him at the time and he had signed that he had agreed with its contents;

   c)the airline told the family that X had not boarded his flight but failed to mention that the agent had seen his brother be taken by the CID or covered by a cloth; and

   d)the applicant left Sri Lanka a month after X as opposed to being detained by the CID on multiple occasions over a four to five month period during which he received threats of being shot or killed.

   When viewing the applicant’s evidence in its entirety the IAA did not find it truthful, and found that he had exaggerated X’s treatment and experiences to bolster his own protection claims.

7. The IAA:

   a)did not accept that after X had been released from the rehabilitation centre, that the CID had detained, beat and tortured him until May 2010 and then continued to harass him.  It did, however, accept that he had been required to report to the police station;

   b)accepted X booked a flight to India in February 2011 (as opposed to October 2010) but failed to board the plane as claimed by the applicant in his entry interview and invalid application. However, it did not accept that X was taken by the CID;

   c)accepted that the authorities pursued the applicant after X failed to report to the police and on one occasion they beat and detained him hoping to find out where X was.  However, the IAA did not accept that this treatment continued and did not accept that he was threatened to never be released; and

   d)was not satisfied that when the applicant departed Sri Lanka the authorities were interested in him because of X’s membership of the LTTE or that if he returned to Sri Lanka he would face a real chance of serious harm.

8. Because X had been a member of the LTTE the IAA accepted, based on country information available to it, that Sri Lankan authorities might monitor the applicant but that this did not amount to “serious harm”.  Although the IAA accepted that authorities had once beaten him it thought this a discrete incident and it did not accept that the authorities otherwise had any ongoing interest in him.  It was not satisfied that the applicant would face a real chance of serious harm based upon his Tamil ethnicity, imputed political opinion or origin from a Northern Province.

9. The IAA accepted that the applicant would return to Sri Lanka without a passport and would be briefly detained to allow them to check his background.  It also accepted that a few unverified reports did claim that failed asylum seekers had been tortured or mistreated and that those who were or perceived to be connected to the LTTE may face harm or detention.  It also accepted that he might be subject to monitoring because his brother had been in the LTTE.  However, given the applicant was not a member of the LTTE or otherwise possessed of a profile of interest to the authorities, and had only been beaten and detained once regarding his brother’s whereabouts, the IAA thought that the chance of harm to the applicant was remote.  He had also left Sri Lanka lawfully and so would not attract attention under the Sri Lankan Immigrants and Emigrants Act 1949 for leaving illegally.  It was not satisfied that he would suffer serious harm upon his return or in the reasonable future.  The IAA also did not accept that the applicant would face a real risk of significant harm under the complementary protection assessment.

PROCEEDINGS IN THIS COURT

1. In his further amended application the applicant alleged:

   1.The Authority denied procedural fairness to the Applicant.

   Particulars

   The Authority relied on a Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB.  The making of the Direction in so far as it purports to limit submissions to no more than five pages and to return longer submissions to an applicant is beyond the power given in s473FB to make Directions.  In relying on that Practice Direction the Tribunal denied the Applicant an opportunity to make proper submissions in support of the review.

   2.The Authority failed to take into account an essential element of the Applicant’s claims.

   Particulars

   (a) The Applicant had claimed to the delegate that he had lived in an area known as Vanni which was a stronghold of the Liberation Tigers of Tamil Eelam (LTTE) (CB154 and 174).

   (b)The Applicant had claimed to, supported by evidence, that there was an extensive network of Tamil informers watching people coming home, especially in the Vanni, and that intelligence services would likely watch someone for a few days on return to the country before picking them up, so that clearing the airport was no guarantee of future safety (CB176).

   (c)The Authority made no mention of the claim with respect to the Applicant’s connection with the Vanni area, and the Court should infer that it did not take it into account.

Ground 1

1. The applicant conceded that this ground must fail because the Court is bound by the decision of the Full Court of the Federal Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551. It was held in that case that the IAA’s practice note, to the extent that it sought to limit the length of written submissions, did not represent an invalid exercise of power. The applicant formally submitted that that case was wrongly decided.

Ground 2

1. If the IAA failed to consider a clearly articulated claim made by the applicant or an integer of such a claim then a constructive failure to exercise jurisdiction would be the result. 

1. In their 3 August 2016 submission to the delegate, the applicant’s representatives submitted that the applicant had:

   … lived in Vanni, an area identified as a stronghold of the LTTE.

   They went on to submit that the International Truth & Justice Project had warned Tamils who had left Sri Lanka

   … that Tamils who return to Sri Lanka from abroad are under surveillance and there is still an extensive network of Tamil informers watching for people returning home, especially in the Vanni.  The intelligence services will likely watch someone for a few days on return to the country before picking them up, so clearing the airport is no guarantee of future safety.

2. In his address to the Court, the applicant argued that the IAA made no reference to those submissions and although it did refer to the “Northern Province”, it did not indicate that the Vanni lay within that province.  He argued that the IAA had ignored this aspect of his claims and it could not be said that, if it had not done so, the result of the review would have been the same.  He argued that the IAA’s decision was affected by jurisdictional error as a result.

3. At the outset, it should be noted, no evidence such as a map or an atlas being adduced in this proceeding, that  the applicant did not contend that the Vanni was not in the Northern Province of Sri Lanka.  This is significant because its location in that province was inherent in the submissions that the applicant’s representatives made to the delegate.  The first above-cited portion of the 3 August 2016 submissions to the delegate, more fully quoted said:

   1.     CONVENTION NEXUS

   We submit that cumulatively, the essential and significant reasons for [the applicant’s] fear of persecution is because of his:

   ·   Race

   oThe Sri Lankan authorities will persecute [the applicant] because he is a Tamil from the Northern Province of Sri Lanka.

   Imputed Political Opinion

   o[The applicant] will be perceived by the Sri Lankan authorities to be an ex LTTE member and/or a person associated or linked to LTTE members and LTTE activities and/or a supporter of the LTTE for reasons including that:

   ·[The applicant] has lived in Vanni, an area identified as a stronghold of the LTTE.  (emphasis added).

   Later, the submission stated:

   … reports suggest that the government continues to maintain that an LTTE revival is a threat and that the government intends to continue close monitoring of Tamils in the North and East into the foreseeable future.  We submit that this renewed climate of fear and suspicion of Tamils amongst the Sri Lankan military means that factors such as having resided in the North, in particular the Vanni and [the applicant’s] brother being a former Sea Tiger who is missing will enhance [the applicant’s] chances of being drawn to the adverse attention of authorities if returned to Sri Lanka. 

   …

   We submit that based on the above information of the treatment of persons with perceived links to the LTTE, [the applicant] will not be safe from the clutches of the authorities if he returns home to the Northern Province or to any other part of the country.  ….

   (emphasis added)

4. In the circumstances, read fairly, where the IAA’s reasons refer to the “Northern Province” that should be understood to include the area known as the Vanni because that is how the applicant’s representatives characterised it in their submissions to the delegate and no subsequent submissions were made to the IAA.

5. At para.7 of its reasons the IAA accepted that the applicant came from the Jaffna district in the Northern Province of Sri Lanka.  At para.32 it noted that in the United Nations High Commissioner for Refugees (“UNHCR”)’s 2012 Guidelines:

   … in UNHCR’s opinion originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.

   After discussing the impact that his brother’s involvement in the LTTE might have on the applicant, the IAA went on to conclude in para.34 of its reasons that although the applicant might be subject to monitoring because his brother had been in the LTTE, it was not satisfied that he faced a real risk of serious harm on the basis of, amongst other things, his origin from the Northern Province. 

6. I conclude that in this finding the IAA dealt with the submission referred to in the amended application.  The fact that the IAA referred to the Northern Province generally rather than to the Vanni specifically is of no significance, given the way the applicant’s application had been presented to the delegate.  This is a case of a finding on a particular matter being subsumed in a finding of greater generality:  Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [47].

CONCLUSION

1. Jurisdictional error on the part of the IAA has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 13 March 2020