Axr18 v Minister for Immigration

[2018] FCCA 2336

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXR18 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2336

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether it was legally unreasonable for the Authority to not consider the new information – whether the Authority failed to consider essential integers of the applicant’s claims – whether the Authority failed to consider whether the applicant faces a real chance of harm – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: AXR18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 515 of 2018

Judgment of: Judge Street

Hearing date: 20 June 2018

Date of Last Submission: 20 June 2018

Delivered at: Sydney

Delivered on: 20 June 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 515 of 2018

AXR18

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 5 February 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

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 8 November 2012 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise visa on 7 October 2016. The applicant was found to be a Tamil Hindu from the Northern Province of Sri Lanka, who had manned a checkpoint for the Liberation Tigers of Tamil Eelam (“LTTEE”) from 2000 to 2003, and later became an electrician and the owner of a lorry transport business.

3. The applicant claimed he was abducted for ransom on several occasions between 2009 and 2012 by the Eelam People’s Democratic Party (“EPDP”). The applicant claimed to fear harm from the EPDP if returned to Sri Lanka on the basis of his profile as a wealthy Tamil businessman and from the Sri Lankan authorities on the basis of their connection with the EPDP and because the applicant is a Tamil and they know of his LTTE work and suspect him of being an LTTE supporter. The applicant also feared harm by reason of his illegal departure and being a failed asylum seeker. On 7 April 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. By letter dated 12 April 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were 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.

2. The applicant did provide submissions and new information to the Authority, received on 6 May 2017, which were considered by the Authority, and insofar as the submissions engaged with the delegate’s decision they were taken into account. The Authority also identified new information that the applicant was advancing. Relevantly, in the new information was a claim advanced in relation to the applicant’s two brothers being perceived to be members of the LTTE who underwent rehabilitation. The applicant’s previous evidence had been that he personally worked for the LTTE from 2000 to 2003 because at least one family member was required to do so, and he claimed his siblings did not have to do so and made no indication either before or during the primary assessment process that any of his family members were involved with or perceived as having involvement with the LTTE.

3. The Authority identified the new information and its significance and, on the face of the Authority’s reasons, took into account both limbs of s 473DD(b) of the Act in considering whether or not there were exceptional circumstances to justify considering the new information. The Authority’s reasons reflect taking into account a preliminary assessment in relation to the credibility concerning that information and do not support any basis to infer that the Authority conflated the requirements of s 473DD(b) of the Act or misunderstood that provision, or that the Authority applied an erroneously narrow meaning of exceptional circumstances in finding that the Authority was not satisfied there were exceptional circumstances to justify considering this new information.

4. The Authority also addressed other new information and took into account, consistent with s 473DE(3)(a) of the Act, new country information. The Authority accepted part of the applicant’s claims in relation to being abducted on one occasion. The Authority provided detailed, cogent, and logical reasons from paragraphs 34 to 50 in its reasons as to why the Authority did not accept that the applicant was abducted on three further occasions.

5. The Authority’s detailed reasons identify material and significant inconsistencies in the applicant’s evidence in relation to the alleged three further abductions, not limited to different assertions as to the amounts involved but also in relation to the applicant’s evidence differing on the number of occasions on which he was tortured, the applicant’s evidence about the identity of his abductors being vague and at times contradictory, the implausibility of the alleged removal of masks, and the identification of the alleged abductors, and other implausibility’s in the applicant’s evidence in this regard, as well as discrepancies in relation to the telephone communications.

6. The Authority’s reasons also identify inconsistencies in the applicant’s evidence about whether or not his abductors made a ransom demand on the alleged fourth occasion, as well as the new claim relating to the abduction and questioning in connection with his brother-in-law compared to what was said at the Safe Haven Enterprise visa interview, unconvincing aspects of the applicant’s escape and inconsistent and implausible evidence about the period of his escape, discrepancies in relation to places and locations, and where the applicant was able to get money from, and the implausibility of the applicant being captured by the same people who had previously asked for ransom three times before but were allegedly uninterested in money on this occasion.

7. The Authority’s reasons also identify the implausibility that the applicant would be detained and tortured without being searched, and the implausibility of the applicant’s claims in relation to being in hiding and his account of someone coming looking for him, and his ability to encounter the group close enough to see and hear one of them suggesting he was hiding in the jungle but they could not find him. The Authority’s reasons also identify the unsatisfactory evidence of the applicant in relation to the attendance at his son’s birthday, and the inconsistency in relation to the times of being in hiding and the alleged fourth abduction.

8. Given the numerous inconsistencies and implausibility’s, and at times the vagueness in the applicant’s accounts regarding the abductions, his escape, and time of hiding, and the Authority’s concerns about the applicant’s return on his son’s birthday, the Authority did not accept the second, third, and fourth abductions occurred. The Authority did not accept the applicant was held for three months and tortured, nor that the applicant escaped and lived in hiding until he left Sri Lanka. The Authority found that these claims were not genuine. The Authority did not accept that the applicant had ongoing problems with abductions or that his wife was harassed when he left the country by persons looking for him. The Authority was not satisfied, having taken into account the applicant’s scars, that the applicant had previously suffered any harm from the authorities or from paramilitary groups including the EPDP. The Authority did not accept the applicant faces a real chance of harm from the EPDP upon return. The Authority did not accept the applicant faces a real chance of persecution from members of the authorities in relation to this matter

9. The Authority did not accept the applicant’s family had been harassed, extorted, or otherwise harmed since his release in 2009. The Authority did not accept that anyone has come looking for the applicant in the five years since his departure. The Authority found the applicant is not currently of interest to any criminal groups or individuals. The Authority was not satisfied people still have an interest in harming the applicant, and did not accept the applicant has a real chance of facing harm from these people involved in the EPDP or in connection with the alleged incident from which he was released in 2009 upon his return.

10. The Authority took into account country information. The Authority did not accept there is a real chance of the applicant facing harm through abductions or extortion, or the resulting harm from the claimed perpetrators nor others upon return. The Authority did not accept that the applicant faced a real chance of harm on account of being perceived as a wealthy Tamil businessman. The Authority referred to the applicant’s role with the LTTE and was satisfied the applicant would not be perceived as having had a significant role with the LTTE. The Authority was not satisfied the applicant will be of interest or concern to the authorities upon returning to Sri Lanka.

11. The Authority was not satisfied the applicant faces a real chance of serious harm now or in the reasonably foreseeable future on the basis of his Tamil race, his origins from the Northern Province, or from his male gender, age, scars, his past LTTE work, nor his cumulative profile. The Authority was not satisfied that the applicant’s profile was is such that the applicant faces a real chance of harm upon return of being detained under the operation of the Prevention of Terrorism Act (“PTA”) or that he otherwise has a well-founded fear of persecution from the authorities nor others on the basis of any real or imputed LTTE support or links, because he would be considered a threat to the integrity of the Sri Lankan state or would otherwise be of concern to the Sri Lankan authorities.

12. The Authority took into account the applicant’s illegal departure and referred to having found that the applicant would not be returning to Sri Lanka with a profile of concern to the Sri Lankan authorities. The Authority did not accept the applicant faces a real chance of harm as a failed returnee asylum seeker. The Authority was not satisfied the applicant faces a real chance of harm on account of having left Sri Lanka to seek asylum in Australia, even when considered with his profile as a Tamil male from the north, his work for the LTTE, and the fact that he was once abducted.

13. The Authority accepted that the applicant would be charged under the Immigrants and Emigrants Act 1948 (Sri Lanka). The Authority found there was only a remote chance that the applicant will be detained and found that any period of detention will be brief. The Authority was not satisfied there would be more than a remote chance that the applicant would face a threat to his life or liberty or other harm amounting to serious harm as a result of the removal process, processing at the airport, or any brief period of detention, whether at the airport or in prison.

14. The Authority was not satisfied that there is any reason why the applicant would not be granted bail on his own personal surety, or that he would not have willing family members to act as guarantor if required. The Authority took into account that the applicant does have his parents, wife, and a number of siblings still in Sri Lanka and that he continues to be in contact with them.

15. The Authority was not satisfied the payment of a fine amounts to hardship which would threaten the applicant’s capacity to subsist, or would otherwise amount to serious or significant harm, or that being held in detention for a short period at the airport, or possibly a nearby prison, cumulatively amounts to serious harm. The Authority found the process leading to the charge, conviction, and punishment for breaching the relevant sections of the Immigrants and Emigrants Act 1948 (Sri Lanka) would be the result of a law of general application applied to all Sri Lankans who depart illegally and does not amount to persecution for the purpose of s 5H(1) and s 5J(1) of the Act.

16. The Authority was not satisfied the applicant faced a real chance of persecution arising from his illegal departure, his detention and asylum application in Australia and the circumstances he will face through the returning processing. The Authority was not satisfied the applicant faces a real chance of harm from the EPDP or members of the authorities with whom they may be aligned. The Authority was not satisfied the applicant faces a real chance of harm from his previous kidnappers or from anyone on the basis of being perceived as a wealthy Tamil businessman.

17. The Authority was not satisfied the applicant’s circumstances either individually or cumulatively give rise to a well-founded fear of persecution. The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

18. The Authority, in considering complimentary protection, referred to having found the applicant was only abducted once in 2009 and found that that was an isolated crime and was not satisfied those persons have pursued the applicant or any member of his family since the incident. The Authority was not satisfied that those people who abducted the applicant still had an interest in harming the applicant. The Authority did not accept there is a real risk of the applicant facing harm from those people or in connection with this incident upon return.

19. 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 that 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. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

2. On 22 March 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

3. From the bar table, the applicant maintains his life will be in danger on return to Sri Lanka and sought to explain that about two weeks ago there had been threats that had been made in relation to the applicant. The Court explained to the applicant that it could not receive fresh evidence in relation to the applicant’s claims. The Court explained that it could not revisit the merits and was confined to considering whether or not the Authority complied with its statutory obligations in the conduct of the review. The applicant’s submissions from the bar table, that he claimed his life would be in danger if returned to Sri Lanka is, in substance, seeking to re-agitate the applicant’s claims the subject of determination by the Authority.

4. In that regard, the Authority considered the applicant’s claims and made dispositive findings rejecting the applicant’s claim that he would face real harm or significant harm in the foreseeable future if returned to Sri Lanka. The applicant’s submissions from the bar table invited the Court to engage in an impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

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

   Ground 1

   The IAA committed legal error when it concluded that it was not satisfied that there are exceptional circumstances to justify considering the new information relating to the applicant’s brother “K” and “S”.

   Particulars

   The Authority took a narrow view when considering if it was satisfied that there were exceptional circumstances to justify considering the new information about the applicant’s brothers [7] – [17].

   The applicant provided documentary evidence in support of the new claim that his brothers “were perceived to be LTTE members and underwent rehabilitation” [6].

   The IAA did not accept that it was due to fear that the applicant may be detained that he did not divulge this information about his brothers.

   The IAA’s reasoning at [9] focuses on what the applicant disclosed/his willingness to disclose about his LTTE links. In fact the applicant claimed he “worked” for the LTTE unlike his brothers who he claims “were perceived to be LTTE members and underwent rehabilitation”.

   The fact that the applicant was willing to disclose his LTTE involvement should not be the reason not to consider the new information regarding the brothers who had undergone rehabilitation.

   Disclosing detailed of having “worked” for the LTTE would have been easier than to have disclosed details about siblings who “were perceived to be LTTE members and underwent rehabilitation”. At [66] the IAA accepted that the applicant’s role in the LTTE was low level.

   The IAA failed to consider that exceptional circumstances, included circumstances that were in fact exceptional.

   The documentary evidence which corroborated the new information was also not considered and should have been considered before concluding that the new information could not be considered.

   Ground 2

   The IAA committed legal error as its decision to not consider essential integers of the applicant’s claims was no unreasonable that no reasonable decision maker would make such decision.

   Particulars

   The IAA did not accept that the applicant was abducted a further three times as claimed [34].

   The IAA’s reasoning at [34]-[50] was so unreasonable.

   More detailed to be provided once court book is prepared.

   Ground 3

   The IAA failed to consider a claim that the applicant made concerning a paramilitary group member harassing the applicant’s wife.

   Particulars

   The applicant claimed that an EPDP member harassed his wife [38].

   The IAA did not consider this claim concerning the harassment the applicant’s wife faced by the EPDP member.

   The IAA failed to consider future harm the applicant may face due to this EPDP member.

Ground 1

1. In relation to ground 1, the Tribunal took into account the nature and significance of the new information under s 473DD of the Act in respect of the applicant’s brothers. The Authority’s reasons, as referred to above, are consistent with the Authority properly taking into account both limbs of s 473DD(b) of the Act and, in particular, the Authority referred in that regard to either of the matters in s 473DD(b) of the Act.

2. The Authority’s reasons do not support any basis upon which the Court should find that the Authority conflated the limbs of s 473DD(b) of the Act or adopted an erroneously narrow meaning of exceptional circumstances. There is no substance in the assertion that the Authority failed to consider the new information that was provided in determining whether satisfied that there were exceptional circumstances under s 473DD of the Act. No jurisdictional error as alleged in relation to ground 1 is made out.

Ground 2

1. In relation to ground 2, there is no essential integer of the applicant’s claims that has been identified that was not the subject of consideration. To the extent that ground 2 takes issue with the adverse finding in relation to the applicant’s claims of having been abducted on four occasions, the Authority gave logical and rational reasons for rejecting the applicant’s claims to have been abducted on a further three occasions. Those reasons cannot be said to be unreasonable. They were open to the Authority taking into account the credit considerations as summarised above. Those considerations cannot be said to be illogical or irrational. The decision of the Authority not to accept the applicant’s claims that he was abducted on a further three occasions cannot be said to be legally unreasonable, irrational, or illogical. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, it is apparent from the Authority’s reasons, as referred to above, that the Authority took into account the applicant’s claims concerning EPDP members harassing his wife. The Authority expressly referred to the applicant’s claim that after he left Sri Lanka EPDP members went and harassed his wife and at paragraphs 48 to 49, the Authority recounted the applicant’s evidence to the delegate about the alleged harassment of his wife and referred to the inconsistency in the applicant’s evidence about the number of times his wife had been harassed. At paragraphs 50 to 51, the Authority did not accept the applicant’s claims about his abductions, including that the applicant knew that his abductors were from the EPDP, which the applicant alleged had been told to him by his wife, or that he had ever been targeted by that group. Materially, in paragraph 51, the Authority expressly identified not accepting that the applicant’s wife was harassed after he left the country by persons looking for him.

2. Those factual findings were open to the Authority and are sufficient to dispose of the applicant’s claims that the EPDP members harassed his wife. The Authority expressly referred to not accepting that the applicant faces harm from the EPDP upon return and did not accept that the applicant’s family members had been harassed, extorted, or otherwise harmed since his release in 2009 and found the applicant was not of any interest to any criminal groups or individuals. The Authority expressly rejected that there is a real chance of the applicant facing harm through abductions, extortion, or resulting harm from the claimed perpetrators of the 2009 abduction, nor others upon return of the applicant to Sri Lanka. The Authority also expressly referred, in relation to complimentary protection, to the fact that the incident of abduction in 2009 was an isolated, and that the Authority was not satisfied that those persons have pursued the applicant or any member of his family since this incident. Those adverse findings were open to the Authority and cannot be said to be illogical or irrational. There was no failure by the Authority to consider the applicant’s claim in relation to harassment of his wife as alleged in ground 3.

3. Further, the Authority’s reasons reflect a correct identification of the relevant law in relation to whether the applicant has a well-founded fear of persecution in the reasonably foreseeable future and in relation to determining whether the applicant has a real risk of suffering significant harm in the reasonably foreseeable future. There was no failure by the Authority to consider the applicant’s claims and the adverse findings made by the Authority were open to the Authority and dispositive of the applicant’s claims. No jurisdiction error as alleged in ground 3 is made out.

Conclusion

1. As the application fails to make out any jurisdiction error, the application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  24 August 2018