AWB18 v Minister for Home Affairs

[2018] FCCA 3688

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWB18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3688

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: AWB18

First Respondent:

Second Respondent:

MINISTER FOR HOME AFFAIRS

IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 190 of 2018

Judgment of: Judge Vasta

Hearing date: 4 December 2018

Date of Last Submission: 4 December 2018

Delivered at: Brisbane

Delivered on: 4 December 2018

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the Application filed 23 February 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 190 of 2018

AWB18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant, AWB18, is a citizen of Sri Lanka. He arrived as unauthorised maritime arrival in Australia on 17 April 2013. On 5 August 2016, he applied for a Safe Haven Enterprise visa. On 29 November 2017, a delegate of the Minister refused to grant the Applicant that visa. Because that decision was a fast track reviewable decision, it was referred by the Minister to the Immigration Assessment Authority (“the IAA”) for review. On 25 January 2018, the IAA made its decision.

2. In short compass, the Applicant’s claims are that he is of Tamil ethnicity and of Hindu faith. He was born in the Northern Province of Sri Lanka. The claim before the IAA was that the Applicant was not married. His claim was that he had four older brothers, two of whom have passed away, one brother still lives in Sri Lanka and is married with children and the other one, who is known as K, was a member of the Liberation Tigers of Tamil Eelam (“the LTTE”). He said that that brother is currently hiding in Jaffna.

3. His history is, according to him, that, when he was 12 years old in about 2004, he stopped attending school, because his family were poor and they were displaced by the war. In 2009, his brother K, who actually was in the LTTE, was taken away by the Sri Lankan Army to the army detention centre. He said, in 2009, his father was killed when a shell fired by the Sri Lankan Army hit their house during fighting between the army and the LTTE. The mother was injured as a result and she passed away some years later, though it seems that must have occurred after the Applicant left Sri Lanka and came to this country.

4. The Applicant said that he, his mother and sister-in-law moved to a refugee camp in Jaffna until about 2011.  He said that, during the time in the camp, he was subject to monthly meetings with the CID and he was questioned whether he was in the LTTE or whether he knew certain high ranking officers.  He said that he was suspected of being in the LTTE because his brother was.  At the end of 2011, he said that he, his mother and sister-in-law left the refugee camp and returned to their house. 

5. Later on that year, his brother was released from the army detention centre and his brother then went into hiding, as a result of the harassment from the Criminal Investigation Division (“the CID”). The Applicant said, about three months after, and this would now be in 2012, the CID would regularly go to all the houses in the area where there were former LTTE fighters and question the other male members of the family, particularly brothers, if they were also in the LTTE.  He said that this meant that he was regularly approached by the CID and asked about his LTTE links.

6. He said that the CID also started coming to the restaurant where he worked and were questioning him there. They were suspicious of him because he was young, a Tamil and he was not married. He said that he would only be harassed or interrogated at the restaurant if there were no other people present.

7. He was told that he was needed to go to the army base to report. He eventually did go to the army base with his brother, the one who is now married, and he was taken inside. He said he was interrogated and beaten by the CID for not admitting that he was in the LTTE. His brother seemed to be waiting outside and, when the Applicant was released by the CID from the army base, he said that the CID told his brother that he, the Applicant, must remain in Sri Lanka.

8. He said that he did not receive any medical treatment, because he did not want to disclose how his injuries occurred and, thereby, aggravate the CID.  He said, shortly after he was beaten, he took action to leave Sri Lanka by boat, but, before he could go through with that, the boat he was intending to leave on was captured by the Sri Lankan Army. 

9. He said he was detained by the CID for three hours, about two or three months after this, because he said the CID had found out that he was attempting to depart Sri Lanka on that boat.  He said that he was warned that he should not leave the country and he was required to report to the camp whenever he was called.  The Applicant said that he did, eventually, leave on 9 March 2015 and he did so illegally.

10. The IAA went through all of those claims and went through the Country Information, which, really, went to the question of the civil war between the Sri Lankan Army and the LTTE and how that originated and how it actually ended.

11. The IAA ended up considering that most of the matters in the Applicant’s account were plausible, because they were consistent with other Country Information.  What the Applicant said about his brother seemed to gel with other Country Information.  What the Applicant said about being questioned on a number of times, in effect, being harassed by the CID, also was consistent with Country Information. 

12. The Country Information was that the CID, for a significant period of time, used the auspices of the Prevention of Terrorism Act and used that to question people.  However, there were many, almost draconian, aspects of that Act.  None of those powers seemed to be utilised by the CID in their questioning of the Applicant. 

13. What the IAA found was that they accepted that he did go to the camp and that he was taken by the CID and assaulted. The IAA accepted that, in part of that assault, he was kicked to the chest. The IAA noted that the Applicant did have a pre-existing injury that he suffered during the tsunami in 2004, where he had injured his chest, and that this kick, during the assault, had exacerbated that injury. Notwithstanding that there was no medical evidence to the effect, the IAA accepted that the Applicant often, if he exerts himself, ends up spitting up blood.

14. The tale that the Applicant told about trying to leave Sri Lanka and then being thwarted and being told not to go again was also something that was considered.  However, the IAA found that they did not consider it plausible that the CID would have detained the Applicant for any time simply because they had found out that he had not gone through with the plans to leave.  The IAA said this:

    While I accept that the applicant, like other Tamil males, experienced harassment in the period prior to his departure because he was a young unmarried Tamil male and because his brother was an LTTE member, and that he had made plans to leave Sri Lanka by boat, but could not go through with them because of the claimed circumstances, I am not satisfied he was again detained by the CID before his eventual departure in March 2013.  I am not satisfied that he was a person of particular interest to the Sri Lankan authorities for any reason at the time of his claimed detention in 2013.  I am also not satisfied he was a person of particular interest to the Sri Lankan authorities for any reason when he departed Sri Lanka in March 2013.

15. The IAA then looked at what the situation is at the moment in Sri Lanka, how the LTTE operates and what the government attitude is to the LTTE. The IAA put some store in a report from the UK Home Office. At paragraph 21, the IAA quoted the UK Home Office that said in its opinion that:

    …A person being of Tamil ethnicity would not in itself warrant international protection. Neither, in general, would a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have had a significant role in it, or, if they are, or perceived to be active in post-conflict Tamil separatism and, thus a threat to the state.

16. The IAA concluded that, because they are not satisfied that the Applicant would be perceived to have had any significant role in the LTTE, he would be targeted or in any way seen as a subversive by the government, simply because his brother was an LTTE member who went to a rehabilitation camp.

17. The DFAT information that the IAA relied on spoke of how there has been a lessening of the restrictions placed on personal freedoms and travel, especially by people from areas where the LTTE used to operate. 

18. There have been significant milestones towards reconciliation in Sri Lanka.  The 2015 Independence Day ceremony was attended by the Tamil National Alliance.  The IAA noted that the Tamils are the second largest ethnic group in Sri Lanka and their inclusion in political dialogue has increased since the Sirisena government came to power in 2015.  The IAA came to this conclusion at paragraph 27:

    27. Having considered the Country Information, including that relating to changed country conditions detailed above, I am not satisfied there is a real chance the applicant will suffer harm from the Sri Lankan authorities because of his Tamil ethnicity and/or or his origin from, and residence in, a former LTTE-controlled area in the Northern Province, his familial link to his brother, K who was a member of the LTTE or his experiences in Sri Lanka, including with Sri Lankan authorities.

19. The IAA then looked at what would happen if he were a returning asylum seeker who departed illegally.  After going through quite a deal of Country Information, the IAA concluded that there would be no harm to the Applicant that would extend beyond receiving a fine for leaving the country illegally, though he may be detained for a number of days before his matter could be brought before the Court, but such would not amount to serious harm, as that term is understood.  Therefore, the IAA found that he did not meet the requirements for the definition of refugee. 

20. The IAA then looked at the complementary protection criteria and came to the conclusion that they were not satisfied that the Applicant would face a real risk of significant harm upon being charged for an illegal departure offence under Sri Lankan law.  Coming to those conclusions, the IAA affirmed the original decision.

21. The Applicant filed the present application on 23 February 2018.  Given that the decision by the IAA was made on 25 January 2018, the Applicant had 35 days to make this application.  He has made the application well within that 35 days.  I mention that simply because, in the application, the Applicant ticked the box saying that he wished an extension of time.  The fact is that he did not need an extension of time. 

22. Since 23 February, the matter was brought on as a first Court date on 28 March.  He was given a date by Registrar Lynch on 19 July 2018.  I changed that date to a date even later, that is, today’s date, 4 December 2018, so he has had plenty of time.  He has not put in any other material.

23. The actual ground in the originating application is this:

    1. The Immigration Assessment Authority and delegate of the Minister for Home Affairs erred in law in making his decision.

24. Of course, I cannot review the decision of the delegate for the Minister for Home Affairs. I can only look at the Immigration Assessment Authority. That ground is just far too general. There is no specificity at all as to how it is that the Immigration Assessment Authority has erred in law in making that decision.

25. As I have gone through the way in which the IAA has dealt with this matter, in that there has been the assessment of the claim, the assessment of the Country Information, the marrying together of both sets of information and then conclusions having been made, it appears very clearly to me that the IAA has performed its statutory function as it should and has come to conclusions which were open to it.  It does not seem to me, on the face of it, that there has been any jurisdictional error. 

26. I gave the Applicant today, who has appeared unrepresented, but with the help of an interpreter, an opportunity to expand on any of those matters. All he said to me was, basically, that he cannot go back to Sri Lanka. He does not have any family there anymore. Since he has been in Australia, which seems to be after the delegate’s decision, he said that he got married to a Sudanese girl and he now has a baby. He said, in very vague terms, to me that he has heard that the situation in Sri Lanka has changed. He said that he has heard problems have started again, on a smaller scale, but did not expand on that.

27. As I said to the Applicant during the course of the hearing, none of that information was before the IAA and I cannot look at information that was not before the IAA. 

28. He said that he had nothing more to say to the Court and his submissions really were a plea for some form of mercy or sympathy or somehow to bend the law for him because he is a nice person.  Of course, to do something like that would be in total contravention of the judicial oath. 

29. Having looked at everything that the Applicant has said, everything that he has put down in his material and the IAA decision, I cannot find that there has been jurisdictional error established. I therefore dismiss the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019