AVX17 v Minister for Immigration

[2017] FCCA 2656

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVX17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2656

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to apply the real chance test – Authority did not solely refer to the improved security situation – no proper basis to infer the Authority failed to take into account the reasonably foreseeable future in applying the real chance test – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant: AVX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 713 of 2017

Judgment of: Judge Street

Hearing date: 31 October 2017

Date of Last Submission: 31 October 2017

Delivered at: Sydney

Delivered on: 31 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

On a direct access basis

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. Grant leave to the applicant to rely upon the amended application annexed to the applicant’s submissions filed on 16 October 2017 and the Court dispenses with the need for the electronic filing of a copy of the same.

2. The amended application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 713 of 2017

AVX17

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 of the Act made on 13 February 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa (SHEV) Subclass 790.

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 10 September 2012 and lodged the application for a SHEV visa on 2 February 2016. The applicant claimed to fear harm as a Tamil from the northern Liberation Tigers of Tamil Eelam (LTTE) controlled area and claimed to fear harm from the Sri Lankan authorities.

3. On 6 September 2012, a delegate refused to grant the applicant the visa and found the applicant failed to meet the criteria under the Act. The delegate was not satisfied the applicant was suspected of having links with the LTTE, or as an LTTE supporter while he was in Sri Lanka. The delegate also expressed concerns in relation to central aspects of the applicant’s claims, and found the applicant had embellished and exaggerated his claims in order to support his application for protection. The delegate expressed concerns in general about the applicant’s credibility and motive for departing Sri Lanka. The delegate found the applicant’s claim that he was pursued by the CID after he was released from a camp in 2010 for being an LTTE suspect, lacked credibility. The delegate found the applicant’s claims that he was pursued by the CID for the same reason after his departure from Sri Lanka lacked credibility. 

The Authority’s decision

1. On 13 September 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review.  The letter identified that there were only limited circumstances in which the Authority could receive new information, and provided an attached track sheet and practice direction, giving the applicant an opportunity to put on new information and submissions.

2. The Authority, in its reasons, dated 13 February 2017, identified the background to the visa application. The Authority identified having regard to the information referred under s 473CB of the Act. The Authority also referred to taking into account as new information being country information that fell within s 473DE(3)(a) of the Act. The Authority summarised the applicant’s claims and evidence.

Assessment of Refugee Convention criteria

1. The Authority accepted that some of the applicant’s distant relatives were LTTE members and that his family were displaced from 2008 and that they only took control of their area in May 2009. The Authority accepted in May 2009 the applicant was separated from his family and body searched and held with a group of Tamil men. The Authority noted that his body scars may have been of interest to authorities at the checkpoint.

2. The Authority accepted that the applicant is a Tamil from the northern LTTE controlled area and because of his scars, his extended family, who are LTTE members, and his labouring activities for the LTTE or participating in the civilian village force, that the applicant was fearful of being perceived by the authorities as having links with the LTTE, resulting in the CID interest in the applicant in 2010, which required him to report and the further alleged CID questioning, that occurred in July of 2012. 

3. The Authority took into account that the applicant was able to be admitted to the Internally Displaced Person (IDP) camp, but there is no indication that his evasion from authorities at a checkpoint was known to the authorities of the camp, and that during his time in the camp he was not interrogated or questioned about any LTTE links, despite his scarring.

4. The Authority found that the applicant was not taken into rehabilitation or prosecuted under the emergency provisions, and that he was released from the IDP camp and able to return to his previous position as a government employee, and found that the applicant was not suspected by the authorities in 2009 as having LTTE links. The Authority made reference to the applicant’s claims about his siblings being required to provide manual labour for the LTTE, and that they have not experienced any difficulties with the authorities. It was in those circumstances, the Authority did not accept the applicant was imputed with an LTTE profile and was of interest to the authorities, by reason of his family links.

5. The Authority found it was difficult to reconcile his experience in 2009, when he was released from the IDP camp with his claim to have been targeted by the CID in March 2010, for questioning about LTTE links. The Authority in this regard, identified its misgivings in relation to the alleged mistreatment by the CID in July 2012, but could not confidently discount that the CID had an interest in the applicant in 2010. The Authority found it plausible that the CID interviewed the applicant in March 2010, and that he was required to report monthly after this interview. The Authority also accepted as plausible that the CID interviewed him again in 2012.

6. The Authority made reference to the country information that the authorities acted with impunity in abusing the Tamil population at that time, and accepted that the applicant was physically assaulted by the CID at the time of the alleged interview in 2012. The Authority noted however, that the applicant was not taken into rehabilitation and was able to return to his home and continued working for the government in 2010 and that he was released without charge on both occasions after being interviewed. 

7. The Authority did not accept the applicant was of specific interest to the authorities, on the basis of actual LTTE links or connections. The Authority did accept that the applicant was monitored and interviewed, as claimed, as at this time, the general civilian Tamil population was closely checked for LTTE links. The Authority made a reference to the easing of the security situation since the applicant’s departure, and the lack of any other profile than that of a general Tamil by the applicant.  The Authority did not accept that the CID have continued to visit the applicant’s home monthly to enquire about him, as advanced in January 2016 in the SHEV application. The Authority did not accept that the applicant had an LTTE profile after he was released in 2012, imputed or real, and the Authority found there is no indication that the applicant was involved in any other activities which would result in the CID retaining an interest in him more than three years after they questioned and released him without charge, in July 2012.

8. The Authority made reference to the improvement in the security situation since the applicant’s departure and the Authority found that country information does not support the applicant’s fear as being well-founded. The Authority made reference to the UNHCR current guidelines, and that Tamil ethnicity alone does not give rise to protection needs and that there is no longer a presumption of a requirement for protection for reason of being a Tamil of Tamil ethnicity from a former LTTE controlled area. 

9. The Authority also noted that country information does not indicate that persons with body scars alone are likely to attract the attention of the authorities, now or in the foreseeable future. The Authority was satisfied that the applicant would not face harm on return to Sri Lanka on the basis of being a Tamil, because of his scars, the death of his sister, extended family with LTTE links, having escaped from the checkpoint, being from a former LTTE controlled area, or for providing manual labour to the LTTE and participating in the civilian village force. The Authority made reference to the applicant’s siblings and extended family being able to live openly in Sri Lanka, and that they farm their land and have no problem with the authorities.

10. The Authority found taking into account the applicant’s profile and the significant improvement in the situation and easing of harassment and monitoring of Tamils, the Authority was not satisfied this would result in any harm to the applicant on return. The Authority did not accept that the authorities would have discovered that the applicant escaped from a checkpoint, and that this would increase the risk of harm for the applicant.

11. The Authority accepted that the applicant would be identified as a failed asylum seeker who departed Sri Lanka illegally. The Authority found the applicant may be detained and questioned at the airport for up to 24 hours, be fined for breaching the Immigrants and Emigrants Act and may face a period of time held in a prison. The Authority was satisfied that the applicant would only face a brief period in detention and having regard to the general poor prison conditions, did not consider a brief period in detention would constitute the necessary level of threat to his life or liberty, or to significant physical harassment or ill treatment under s 5J(5) of the Act, or otherwise amount to serious harm for the applicant.

12. The Authority did not accept that the likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine under the Immigrants and Emigrants Act would constitute a threat to the applicant’s life or liberty, or to be significant physical harassment or ill treatment under s 5J(5) of the Act, or otherwise amount to serious harm.

13. The Authority found the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act would be the result of a law of general application that does not amount to persecution under s 5H(1) and s 5J(1) of the Act.

14. The Authority found that, while the applicant may be questioned about the origin of his scars, considering that the applicant has no other profile of concern, the Authority was not satisfied that this would result in a real chance of harm to the applicant. The Authority was not satisfied that there is a real chance the applicant will face any harm as a returned failed Tamil asylum-seeker. The Authority found the applicant did not meet the definition of refugee in s 5H(1) of the Act and the applicant failed to meet the criteria under s 36(2)(a) of the Act.

Assessment of Complementary Protection criteria

1. The Authority found it was not satisfied that there is a real risk that the applicant would be subjected to mistreatment during any possible brief period of detention, when returned to Sri Lanka. The Authority was not satisfied there are 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 failed to 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 country information before the IAA indicated that up until at least 2012 the Sri Lankan authorities abused the Tamil population and the Sri Lankan government was repressive towards the Tamil population. The country information also indicated that, more recently, the security situation for Tamils in Sri Lanka had eased and improved. However, the fact that the security situation has improved does not, without more, mean that Tamils do not face a real chance of persecution. The IAA reasoned that, because the security situation for Tamils in Sri Lanka had eased and improved, the applicant's fear of persecution was not well-founded. This reasoning process involves an error in applying the real chance test, which is a jurisdictional error.

   2. The IAA did not consider the situation for the applicant into reasonably foreseeable future on his return to Sri Lanka. This involved an error in applying the real chance test as explained in Minister v Wu Shan Liang (1996) 185 CLR 259.

   3. The IAA accepted nearly all of the applicant's claims concerning past events other than that the CID continued to visit the family home monthly following the applicant's departure from Sri Lanka in August 2012 to enquire about the applicant. The IAA did not accept this last claim on the balance of probabilities. It had a real doubt that its finding concerning this claim was correct. In the circumstances, the IAA was required to consider (but failed to consider) the possibility that the alleged past event (that the CID continued to visit the family home monthly following the applicant's departure from Sri Lanka in August 2012 to enquire about the applicant) might have occurred. The IAA's failure to do so involved a contravention of the principle explained in Minister v Rajalingam (1999) 93 FCR 220 which is a jurisdictional error.

Ground 1

1. In relation to ground 1, Mr Zipser of counsel took the Court to the reasoning of the Authority and in particular, in paragraphs 17 and 20, and submitted that there had been a focus only upon the improved security situation, and a failure to apply the real chance test.  Mr Zipser submitted that the easing or improvement of the security situation did not mean that Tamils do not face a real chance of persecution, and submitted that the Authority had made a finding solely on that basis, in relation to the applicant not having a well-founded fear of persecution and accordingly, erred in relation to the real chance test.

2. The Authority’s reasons are not to be read with a keen eye for error.  The Authority correctly identified the relevant law. The Authority did not determine the applicant had a well-founded fear solely by reference to the improved security situation in relation to the applicant’s fear as a Tamil and by reason of a suspected LTTE connection. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Zipser of counsel skilfully submitted that the Authority had focused attention on a point of time being a point of return, and not the reasonably foreseeable future. Mr Zipser properly drew the Court’s attention to the reference and application by the Authority of the reasonably foreseeable future consideration in relation to the real chance test.

2. I accept the submissions of the first respondent, that there is no proper basis for inferring that the Authority failed to take into account the reasonably foreseeable future in its application of the test, particularly given its correct identification of the same in paragraph 18. The reference to focus upon the time of return, reflects a reference to the statutory provisions and does not reflect a failure by the Authority to take into account the reasonably foreseeable future. The Authority’s reasons are not to be read with a keen eye for error. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Zipser of counsel took the Court to the Authority’s adverse finding in relation to the CID not continuing to ask about the applicant. Mr Zipser submitted that that was a finding that was equivocal and one in respect of which the Authority should have proceeded to consider the possibility of being wrong. On a fair reading, the finding by the Authority was not equivocal or one based upon hesitation, and there was no requirement for the Authority to ask what if it was wrong in that regard. Accordingly, no jurisdictional error as alleged in ground 3 is made out.

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

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  22 November 2017