AXU17 v Minister for Immigration
[2020] FCCA 708
•30 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXU17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 708 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa – refusal – review of Immigration Assessment Authority (“IAA”) decision – allegation that IAA’s decision affected by jurisdictional error by failure to consider an integer of the claim – speculation as to past events impermissible. |
| Legislation: Migration Act 1958, ss.5, 5H, 5J, 36, 473BB, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 MZZHA v Minister for Immigration and Border Protection (2014) 224 FCR 365 |
| Applicant: | AXU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 642 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 6 March 2020 |
| Date of Last Submission: | 6 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Solicitor for the Respondents: | Mr L. Leerdam of Mills Oakley |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 642 of 2017
| AXU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Sri Lanka who arrived by boat at the Cocos Islands on 26 September 2012 without a visa permitting him to enter and stay in Australia. On 31 March 2016 he lodged an application for a Safe Haven Enterprise Visa (“SHEV”) alleging that he feared persecution in Sri Lanka because of his Hindu faith, Tamil ethnicity, because he would return to Sri Lanka as a failed asylum seeker and because of an imputed connection to the Liberation Tigers of Tamil Eelam (“LTTE”). On 4 January 2017 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter to the second respondent (“IAA”) for review. The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
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.
For the reasons which follow, the application will be dismissed.
FAST TRACK REVIEW LEGISLATIVE FRAMEWORK
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
Section 5(1) of the Act 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;
The applicant is a fast track applicant.
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
Part 7AA of the Act sets out the IAA fast track process and procedures. That part 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. The IAA review is conducted on the papers.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
At all material times, 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
The applicant’s written claims for protection were made in his application for a SHEV on 31 March 2016 and in an earlier invalid application in 2013. The applicant also gave oral evidence at two entry interviews, the first on 6 October 2012 (“First Interview”) and the second on 25 January 2013 (“Second Interview”) as well as a departmental interview on 7 December 2016.
In its decision the IAA summarised the facts alleged in support of the applicant’s claim for protection. As summarised by the IAA, the applicant relevantly made the following claims:
a)he is of Tamil ethnicity and Hindu faith. His village, which was situated in the Batticaloa District of the Eastern Province of Sri Lanka, had been controlled by LTTE during the Sri Lankan Civil War (“Civil War”). Provided the villagers followed orders they were afforded protection. His uncles were some of the many villagers who were recruited to the LTTE. He claimed that his family, who were prominent goldsmiths, required LTTE protection because otherwise the Sri Lankan Army (“SLA”) and police would try to take their money and gold bars;
b)during his childhood, when travelling to school the police and Sri Lankan Army beat him and other Tamil youths;
c)Karuna, the then-LTTE commander of this district, ordered the recruitment of Tamil youths into the LTTE army and that the applicant and his brother be beaten because they refused to join the LTTE. He also claimed that Karuna threatened to abduct the applicant’s brother if his father did not make jewellery for him and his friends;
d)in 2004, Karuna revoked his allegiance to the LTTE;
e)in 2006, Karuna cadres and the SLA invaded, looted and took control of the applicant’s village while the LTTE retreated to the Vanni District. The applicant’s uncle warned his family to hide their jewels, but while attempting to do so, the LTTE took them and never gave them back;
f)between 2006 and 2007 Karuna and the SLA attempted to recruit youths and LTTE members and some of those who refused to join were shot or escaped to the LTTE. He claimed he avoided recruitment, initially because he was studying and later because he was working for his father;
g)in January 2009 the Karuna group attempted to recruit him and other youths by detaining them in army camps for a couple of days. He claimed he was beaten and starved when he refused to join and that his father only secured his release by bribing the officers. After this incident he was scared to leave home. The police asked his father whether he was an LTTE cadre and asked him about whether he had worked for the LTTE and he had to show them his work to prove otherwise;
h)during 2009 the SLA murdered his uncle (“Z”), and began searching for relatives thought to be LTTE members. Karuna’s cadres arrested, interrogated and detained young villagers overnight and the Criminal Investigation Department (“CID”) and SLA frequently arrested people;
j)he was twice detained and interrogated by Karuna’s cadres at the police station:
i)first in late 2010 where, when questioned, he said that he was not connected to the LTTE, his uncle had not hidden at their house in 2006 and he could not he could not join the military because he was required to work for his father. After this incident he moved to his grandparents’ house; and
ii)secondly in May 2011 where he was told not to move houses and that they would inquire into his connection to the LTTE. The applicant said that his father bribed Karuna’s cadres who then left them alone;
k)in May 2012 the CID arrived at his home and he fled out the back door but his father was told by the CID that they believed him to be a LTTE cadre who worked with his uncle in the Vanni and the applicant should go directly to the police station. The applicant moved in with another uncle in Udappu. Karuna’s group asked his father where the applicant was and beat him. They told his father they had information to believe the applicant was a LTTE cadre and would be imprisoned when they found him. Arrangements were made for the applicant to depart Sri Lanka; and
l)his brother was arrested and interrogated by the CID about the applicant and when he told them that the applicant had left Sri Lanka they threatened that upon his return he would be imprisoned as an ex-LTTE cadre. They also beat the applicant’s father because he had organised the applicant’s departure.
The IAA’s decision and reasons
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. The IAA’s presently relevant findings and reasons are summarised below.
The IAA noted the following discrepancies in the applicant’s claims:
a)in his written application the applicant claimed that:
i)his uncles had been appointed to senior LTTE posts and had provided the LTTE cadres with information;
ii)in 2006 Z recommended that the applicant’s family move their jewellery;
iii)in 2009 Z was murdered and the army began looking for relatives who were LTTE members; and
iv)in 2010 the applicant was interrogated by police about hiding his uncle during the 2006 army attack on the village;
b)in the earlier, invalid application in 2013 he had, amongst other things indicated that he feared the CID would suspect him of having LTTE links and provided details of frequently being subject to round-ups on suspicion of LTTE support. However, he made no mention of an uncle being in the LTTE or of the authorities pursuing him on account of LTTE family links or because they believed that he had received LTTE training;
c)during the First Interview the applicant did not say that any relatives were LTTE members. He said that Z had been missing since his arrest in or around 2009 and that he had left Sri Lanka at his father’s request because he had received threats and because the conflict had destroyed his home;
d)during the Second Interview the applicant indicated that neither he nor his family had any association or involvement with political organisations or activities against the government and made no reference to links with the LTTE but reiterated that Z was missing. He did say that in 2009 he and others had been temporarily detained, physically harmed and tortured during “round ups” conducted by the SLA when they tried to find out information about those suspected of supporting armed groups. He said that the Karuna group tried to take them for military training;
e)during the departmental interview the applicant could not elaborate on his written application claims in respect of Z and the IAA was concerned about his vague statements. Furthermore, when put to the applicant that another uncle, who arrived in Australia simultaneously, had not mentioned Z’s involvement in the LTTE:
…the applicant reiterated that [Z] had fought and died with the LTTE, that T had not, and he had not mentioned it to T.
f)in his invalid 2013 application the applicant claimed that in May 2012 he had escaped through the back door of his home when it was raided by the Karuna group who assaulted his father and called his name. However, in his valid 2016 application he stated it was the CID who came to their residence in May 2012. He claimed he escaped out the back door and they asked his father to send him to the police station because they suspected he could have been an LTTE cadre working with his uncle in the Vanni.
The IAA accepted that the applicant had never personally been affiliated to the LTTE and that his family only interacted with and made financial contributions to the LTTE out of necessity during the time that this organisation had controlled the applicant’s village but there was no evidence this was of concern to the authorities. It also accepted that around 2004 when the applicant and his brother failed to join the LTTE the Karuna group had ordered that they be beaten and harassed.
The IAA accepted that the applicant, along with other youths had been briefly detained, physically harmed and interrogated about their affiliation with the LTTE during round ups including for two days in January 2009 and overnight at a police station in 2010. However, it did not accept that the applicant was questioned about his uncle in 2010.
The IAA accepted that the Karuna group had harassed and intimidated the applicant and had attempted to recruit him, but also found he had exaggerated the extent of this mistreatment. It did not accept that the Sri Lankan authorities took any particular interest in the applicant and found the events he described occurred as a result of “routine household checks and round ups” which affected all youths in the village. The IAA did not accept that the CID or the Karuna group came for the applicant at his home in May 2012 although it did accept that he had lived with a maternal uncle in Udappu in the three months before his departure to Australia.
The IAA did not accept that the Z had been an LTTE cadre and found he had not fought for the LTTE. It also did not accept that the applicant was thought to be connected to the LTTE by being Z’s relative, particularly as the applicant’s answers about his uncle in the departmental interview were vague. Since his departure in 2012 it found that he had not been of “adverse interest” to authorities including the Karuna group or the SLA and that parts of the applicant’s claim had been overstated or were untrue. Consequently, the IAA was not satisfied that if the applicant returned to Sri Lanka he would come to the attention of the authorities or paramilitary groups.
PROCEEDINGS IN THIS COURT
In the application commencing these proceedings, the applicant pleaded three grounds. Grounds 1 and 3 were abandoned. Ground 2 alleged:
The IAA accepted that the applicant, in the three months before he departed Sri Lanka, resided with his uncle in Updappu [sic], …: at [16]. The fact the applicant left the family home to reside with his uncle is consistent with the occurrence of the incident in May 2012. The IAA overlooked this point in (at [37]) “not accepting any such claimed incident occurred in May 2012”. This is a jurisdictional error.
The applicant’s submission was that as the IAA had accepted that he had moved from his home to his uncle’s home, the IAA ought to have determined why he did so, given that he had alleged that he relocated because of the events of May 2012. He argued that his allegation concerning his motivation for the move was an integer of his broader claim.
Put that way, the fallacy in the argument is apparent. The IAA had no duty to speculate on the reasons why the applicant moved to Udappu when it found itself unpersuaded that the May 2012 event, said to have caused it had in fact occurred: MZZHA v Minister for Immigration and Border Protection (2014) 224 FCR 365 at 370-371 [14]. Relevantly, the IAA’s task was to make findings as to relevant events in the past so that it could consider what the future might hold for the applicant. The latter reasoning had to be informed by factual findings referable to the applicant’s allegations, not on speculation about matters not alleged by him.
The Minister characterised the applicant’s arguments more generously:
The crux of the applicant’s argument is that the Authority at [16] accepted that the applicant had been living with his uncle… prior to coming to Australia, and that this fact lent support to the applicant’s claims that he left the family home in May 2012 because people came to the home looking for him (see AS [18]-[19]). The applicant argues that the Authority failed to consider the reason for the applicant leaving the family home, or failed to give proper and genuine consideration to the fact that the applicant left the family home (AS [19]).
In addresses, the applicant appeared to adopt that version of his argument.
The IAA rejected in the following terms the applicant’s claims concerning events at his home in May 2012:
… These claims about the May 2012 incident are internally inconsistent. While I am mindful not to place undue weight on inconsistencies, I find the differences as to whether it was the Karuna group or the authorities who came for him in May 2012, why they sought him and the claimed conversation with his father to be significant. I am similarly mindful not to place undue weight on omissions however I consider it significant that the applicant made no mention of any such event occurring in 2012 in either of his Arrival interviews, despite it being the event which he claims forced him into hiding in Udappu and which prevented his return to his home, and ultimately influenced his decision to leave the country when he did. …
I have not accepted the applicant was of interest to the authorities on the basis of perceived LTTE links extending beyond his profile as a young Tamil male from his area. Given this and the inconsistencies and omissions noted above which I found to be significant, I do not accept the CID came for the applicant at home in May 2012. Similarly, I have not accepted above that the applicant was repeatedly sought by the Karuna group or SLA for recruitment purposes and on the basis of this, and the inconsistencies and omissions noted above I also do not accept he was sought on this occasion by the Karuna group. I do not accept any such claimed incident occurred in May 2012. …
Plainly the IAA was aware that the applicant relied on his relocation to Udappu as evidence corroborative of at least one of the versions of the events that he said occurred at his home in May 2012. However, because of the inconsistencies in the applicant’s accounts of those events the IAA did not accept that they occurred. Having rejected those allegations on that basis, it was not necessary for the IAA to say anything more about the move to Udappu than it did. The unavoidable conclusion is that the IAA implicitly concluded that the relocation to Udappu had no value as corroborative evidence.
Once it was concluded that the relocation to Udappu lacked the evidentiary significance for which the applicant contended, the motivation for it ceased to be material to the matters in issue. The IAA therefore was not required to consider it further.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 30 March 2020
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