AXR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1353

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1353 

File number(s):	SYG 641 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	17 June 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) Protection visa –  whether the Authority fell into legal error by misapplying the test under s 5J of the Migration Act 1958 (Cth) – whether jurisdictional error is made out – no jurisdictional error is made out – the amended application is dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5H(1), 5J, 5J(3) 36(2)(aa), 36(2)(a) 473CB, 473DD, 476, part 7AA.
Number of paragraphs:	30
Date of hearing:	17 June 2021
Place:	Sydney
Counsel for the Applicant:	Mr A Byrne
Solicitors for the Applicant:	D’Ambra Murphy Lawyers
Counsel for the first respondent:	Mr G Johnson
Solicitors for the Applicant:	Minter Ellison

ORDERS

SYG 641 of 2017

BETWEEN:

AXR17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	22 JUNE 2021

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.Leave is granted to the applicant to rely upon the proposed singular ground identified in the written submissions dated 8 June 2021 and the Court directs an amended application in that form containing that ground, be filed and served on or before 5pm 18 June 2021.

3.The amended application is dismissed.

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

REASONS FOR JUDGMENT

JUDGE STREET:

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”) with respect to the decision of the Immigration Assessment Authority (“the Authority”) under part 7AA of the Act, whom on 3 February 2017, affirmed the decision of a delegate of the first respondent (“the delegate”), not to grant the applicant a Safe Haven Enterprise (subclass 790) Protection visa (“the Visa”). 

2. The applicant was found to be a citizen of Sri Lanka and his claim was assessed against that country.  The applicant was found to be Hindu Tamil from the Batticaloa District of the Eastern Province, who claimed to fear harm from the Sri Lankan authorities for a suspected connection with the Liberation Tigers of Tamil Eelam (“LTTE”), and to face arrest over an extortion by the Criminal Investigation Division (“CID”) and army officers stationed at the army camp near his village.

3. The applicant arrived in Australia on 28 September 2012. On 16 December 2016, the delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise (subclass 790) visa (“SHEV”).  On 21 December 2016, the Authority wrote to the applicant, explaining that the application for the visa had been referred to the Authority for review and, provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on the information in submissions.  The applicant did put on new information and submissions which were considered by the Authority.

   THE AUTHORITY DECISION

4. The Authority, in its reasons, identified the background for the visa application and had regard to the materials referred by the Secretary under s 473CB of the Act. The Authority considered the new information consistent with taking into account the whole of the limbs under s 473DD of the Act.

5. The Authority summarised the applicant’s claims which relevantly included that, in early 2009, the applicant obtained a visa and travelled to Qatar, where he stayed for six months. The applicant claimed that on return to his home, a particular CID officer came looking for him to extort him. The applicant claimed that he continued to pay money and alcohol to the CID officer’s assistant.  The applicant referred to two events also at the beginning of 2008, in which he also alleged that a particular CID officer from when he was arrested and tortured, extorted money and goods from him.  The Authority also referred to the alleged incident that occurred in May of 2007, where the applicant was questioned and tortured for up to three days.  The applicant identified that one particular CID officer extorted him for money and alcohol.  The applicant also made a claim that the particular CID officer asked his wife about him and he made threats to kill him shortly after he arrived in Australia. 

6. The Authority correctly identified the relevant law, including in an attachment of applicable law incorporated into the Authority’s reasons by pagination.  The Authority was not satisfied that the applicant would face a real chance of serious harm on return to Sri Lanka on the basis of his Tamil ethnicity alone, and/or because he originates from the Eastern Province. 

7. The Authority referred to the applicant’s claims and accepted that he heard the shooting of a senior army officer and that the applicant was nearby and ran from the marketplace to his home.

8. The Authority however, found other aspects of the applicant’s claim in his application and at the later interview to be inconsistent, implausible and exaggerated the level of interest that the authorities have in him as a suspect in the shooting or as a perceived high-profile supporter of the LTTE.

9. The Authority referred to the applicant’s incident in relation to four army officers killed near his house, and noted that no material was offered to indicate that the applicant was suspected of being responsible for the shooting or being in possession of weapons.  The Authority did not find it credible, that in the absence of these factors, the authorities who are investigating a large number of people would devote such a large number of officers to attend the applicant’s home to make inquiries.

10. The Authority accepted the applicant’s claims that the CID and army officers suspected that the applicant was guilty or responsible, and made that known to him.  The Authority accepted that the applicant was detained for up to three days and during this time was interrogated and tortured and accused of providing information to the LTTE about the whereabouts of the army officer that was shot.  The Authority accepted that the applicant was thereafter required to report to the army camp once a week.

11. The Authority referred to the applicant’s application after his release to travel to Saudi Arabia in July 2007 and his return three months later in October 2007, and the informing of the authorities of his intention to travel to Qatar.  The Authority referred to the applicant obtaining a free visa, which did not require police clearance, and travelling to Qatar in early 2009.  The applicant returned six months later, and in 2010, again travelled to Qatar with another free visa, where he stayed until 2012. The applicant visited his family in July 2011 and claimed he returned to Qatar because people were looking for him.

12. The Authority identified concerns in relation to the applicant’s claim he was being targeted by the CID, which appeared to be contradicted by the ease by which he could travel in and out of the country and his continuing return to his village.  The Authority also referred to there being no information to suggest the applicant was hindered at the airport on his departure or re-entry. In these circumstances, the Authority was not satisfied that there was a link between the applicant’s claim that his home was visited by four or five masked people in the days following his discussion with the army camp about his intention to travel to Qatar and the alleged reprisal by the authorities.

13. The Authority also took into account that the applicant had complied with the army’s directive for having left for Qatar two months later.  The Authority also found the applicant’s claim of fear of harm from the authorities is contradicted by his stated approaches to the army camp to question their actions and bribe officers for information, which was raised at the interview.  The Authority referred to the applicant’s return to his village in 2009, where he became aware that allegedly well-known people were asking for him and looking for him.  The Authority referred to the applicant’s assertion that during his visit in July 2011, unknown people came to his home, yet he was able to avoid detection.

14. The Authority referred to the applicant’s SHEV application, in which the applicant alleged that following his return from Qatar in 2009, he went to the army camp and asked them why the CID were coming after him.  The Authority referred to the fact that the officers knew they were coming to his house and declared further action, and the applicant’s assertion that he had also made a complaint to the police.  The Authority found these claims of having a profile with the CID as a perceived LTTE supporter of significant interest to authorities to be overstated.

15. The Authority did not accept that the CID was systematically searching for the applicant during the times when he returned to his village.  The Authority referred to the applicant’s claims in this regard to be implausible and inconsistent with his treatment by authorities. The Authority did not accept that the claimed visits by unknown persons to the applicant’s house occurred.  The Authority also referred to the applicant’s claim in relation to his association with the LTTE being impugned due to his occupation as a fisherman.  The Authority was not satisfied that the applicant, being a Tamil fisherman, gave rise to an imputed association to the LTTE, and took into account Department of Foreign Affairs and Trade (“DFAT”) country information in that regard.

16. The Authority was not satisfied that there was a chance of serious harm for the applicant on return to Sri Lanka for imputed support of the LTTE.  The Authority then turned to the targeting and harassment of the applicant by a certain member of the CID.  The Authority was satisfied that the applicant was harassed on these occasions and threatened with further questioning and torture unless he provided money, cigarettes and alcohol, and that he was targeted by a particular individual within the CID.

17. The Authority referred to the applicant’s claim that the particular officer approached his wife within six months of the applicant’s arrival in Australia and made a threat in relation to the applicant.  The Authority found this claim to be a recent invention and was not satisfied that threats were made to the applicant’s wife by the CID officer following the applicant’s arrival in Australia.  The Authority identified that whilst not having accepted the threat following the applicant’s arrival in Australia, it did identify that it had accepted that the applicant was subject to extortion in the past by a particular officer.

18. The Authority referred to the applicant’s claim in that regard, and that the applicant provided greater detail about the involvement of the particular CID officer, and the pattern of extortion occurring shortly after each occasion he returned to the village from Qatar, with the exception of his return in June 2012.  The Authority noted that the applicant claimed that, the demands for money were accompanied by threats of further questioning by the army.  The Authority referred to accepting that a threat of violence accompanying the extortion was implied.  The Authority found the applicant’s account and description of engaging with lower-level army personnel on behalf of the particular CID officer to be credible, and that the information provided in the SHEV interview was reconcilable with applicant’s application. 

19. The Authority noted that there is no information to indicate whether the particular CID officer remains within the locality.  The Authority then turned to the passage of time since the applicant’s departure from Sri Lanka, and that there was a real issue as to whether the applicant would encounter harassment and extortion on his return to Sri Lanka and be subjected to further demands for money and goods from this particular CID officer or other army personnel.  The Authority referred to the issue as to the potency of the threat to subject the applicant to further questioning by the army in relation to the 2007 shooting.

20. The Authority referred to DFAT country information and that the circumstances had changed significantly since Sirisena came to power in 2015.  The Authority referred to the proposition that it is not only less likely that the applicant will be subjected to harassment and torture, but that also, the accompanying threat of further questioning would have diminished impact.  The Authority also referred to the fact that the events that form the basis for the applicant’s original questioning by the army, are now more than 10 years old.

21. The Authority expressly identified the demands made of the applicant prior to his departure from Sri Lanka related to sums of money, cigarettes and alcohol.  The Authority then referred to the proposition of extortion potentially resuming on the applicant’s return to Sri Lanka. The Authority was not satisfied that such extortion and harassment amounts to serious harm.  The Authority found that there is not a real chance the applicant would face serious harm on  return to Sir Lanka arising from harassment and extortion perpetrated by a particular CID officer or other army officers.

22. The Authority then referred to the applicant’s illegal departure and being a returned asylum seeker. The Authority was not satisfied that the applicant will face a real chance of serious harm on the basis of being a returned asylum seeking or by reason of his illegal departure. The Authority referred to having considered the applicant’s claims cumulatively, and found that, they do not give rise to a real chance to serious harm and found that the applicant did not meet the requirements and definition of refugee in s 5H(1) of the Act and did not meet the criteria in section s 36(2)(a) of the Act. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s return to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant didn’t meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

    THE GROUNDS

23. The ground of judicial review contained in the Amended Application filed on 17 June 2021, is as follows:

    GROUND ONE

    1.The Authority fell into legal error by misapplying the test under s 5J of the Migration Act 1958 (Cth).

    Particulars

    a)   The Authority accepted that the applicant was in the past in Sri Lanka, tortured, harassed and extorted under threat of further torture (Decision [23] & [34]).

    b)   In deciding that there was not a 'real chance' of the applicant being persecuted if returned to Sri Lanka the Authority (Decision [37]):

    i.assumed that the applicant would continue to accede to the extortion demands; and

    ii.failed to consider why the applicant would accede to the extortion demands and whether it would be to reduce the risk of persecution.

    CONSIDERATION

24. Mr Byrne of Counsel on behalf of the applicant, contended that the Authority had, in substance, found that the applicant had modified his behaviour by meeting demands for extortion and then failed in the application of the correct test as to whether there was a real chance of persecution with the meaning of s 5J of the Act, because the Authority had failed to ask why the applicant had modified his behaviour.  Secondly, it was submitted that there was an assumption inappropriately made by the Authority that the applicant would continue to meet the extortion demands, and that there was not any assessment of the consequences if the applicant failed to do so.

25. The Authority’s reasons are not to read with a keen eye for error.  It is clear that the Authority identified that the particular perpetrator of the extortion to which the applicant did comply over a period of time was a particular CID officer.  It is clear that the Authority identified that the circumstances since the applicant’s departure had changed, diminishing the prospect of harassment and extortion and also diminishing the significance of any accompanying threat of further questioning in respect of that extortion and harassment.

26. On a fair reading of the Authority’s reasons, no assumption by the Authority was made that the applicant would or would not comply with the demands.  Rather, the Authority made a finding subsuming the proposition that the violence and the harassment might be made for sums of money, cigarettes and alcohol, and found that that would not amount to serious harm.  The Authority, in considering the circumstances, and referring to ‘less likely’ was not making an ultimate finding in respect of the criteria under the convention, but was referring to the changed circumstances.

27. The ultimate finding by the Authority that, it was not satisfied that there is a real chance that the applicant would face serious harm on return to Sri Lanka, reflects a correct application of the relevant test. The Court does not accept that this was a modified conduct or modified behaviour case in which the Authority had made an assumption that the applicant would continue to modify his behaviour. The Authority did not make a finding engaging the considerations under s 5J (3) of the Act and there was no misapplication of that provision. On a fair reading, the Authority found that the applicant did not face a real chance of serious harm whether or not he complied with harassment or demands for sums of money, cigarettes and alcohol from the particular officer or other army officers in the future.

28. That finding does not reflect any error of the kind alleged by Mr Byrne.

29. No jurisdictional error as advanced in the ground of the amended application is made out.

30. Accordingly, the amended application is dismissed. 

I certify that the preceding thirty (30) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 June 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       22 September 2021