Azi17 v Minister for Immigration

[2018] FCCA 2845

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZI17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2845

Catchwords:
MIGRATION – Protection visa application – decision of Immigration Assessment Authority – whether the Authority erred by failing to consider claims – whether the Authority erred in its consideration of “intention”– no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CA

Cases cited:

SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64
SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556

SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936

Applicant: AZI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 694 of 2017

Judgment of: Judge Smith

Hearing date: 5 September 2018

Date of Last Submission: 5 September 2018

Delivered at: Sydney

Delivered on: 5 September 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr L Leerdam, DLA Piper

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 694 of 2017

AZI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 13 February 2017.  The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.  The applicant is a citizen of Sri Lanka and a Tamil Hindu from a town in the eastern province of Sri Lanka.

2. The applicant arrived in Australia on 26 September 2012 by sea and without a valid visa.  In those circumstances he came to be what is called an unauthorised maritime arrival.  That meant, amongst other things, that he was prevented from applying for a protection visa without the intervention of the Minister.  The Minister made the decision to allow the applicant to apply for a protection visa and he did so on 20 January 2016.

3. The claims that the applicant made in support of that application are summarised at [6] of the Authority’s decision, which I set out below:

   6.  The applicant’s claims are contained in the information referred to the IAA. They can be summarised as follows:

   ●   He is a Tamil Hindu who was born and lived in the Batticaloa district in the east of Sri Lanka.

   ●   In January 2002, unknown persons came to his home late at night and knocked on the door. He was fearful and escaped from the house. The persons came in and yelled at his wife in Sinhalese. He heard his name mentioned and ran away. Later, his wife told him that the men demanded he go to a certain address the next day but she did not remember the address.

   ●   He started to change addresses in Batticaloa in order to stay safe. At the end of January 2002, he obtained a work visa and went to Dubai until 2005.

   ●   He returned to Sri Lanka in 2005. The very next night people came and knocked at his door. He and his wife fled and stayed with a neighbour.

   ●   He moved around at this time but his wife returned to the house. People continued to come to the house searching for him. He suspects they were Criminal Investigation Department (CID) or Sri Lankan Army (SLA).

   ●   In about September 2005, his cousin was shot. He believes neighbours had spread rumours that his cousin was associated with the LTTE. The neighbours also suspected the applicant and had always treated him with suspicion.

   ●  In 2010, he was staying at his house again. Unknown men came to his house at night, blindfolded him and abducted him in a van. He was taken to a house and interrogated but did not speak Sinhalese, so he does not know what they were asking him. He was beaten and released the next day. He obtained a work visa and went to Saudi Arabia.

   ●   He returned to Sri Lanka between January and March 2011 then went to Qatar. He returned to Sri Lanka between January and April 2012 then returned to Qatar. His wife remained in the family home during his periods overseas and continued to be harassed by unknown people searching for the applicant.

   ●   He returned to Sri Lanka in July 2012. In September 2012, the applicant fled Sri Lanka. Unknown people continue to question and harass his wife.

4. On 22 December 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. In light of the way in which the applicant arrived, and the reasons for the delegate’s decision, the matter was referred to the Authority for review pursuant to s.473CA of the Migration Act 1958 (Cth). The Authority made a decision on 13 February 2017 and affirmed the decision of the delegate.

5. The findings and reasons of the Authority are accurately set out in the first respondent’s written submissions at [9] to [18], which I adopt:

   9   The IAA accepted that the applicant was a Tamil Hindu from the Eastern Province of Sri Lanka (CB 158 at [9]). However, on the basis of the country information before it, the IAA found that the applicant did not face a real chance of serious harm on the basis of merely being a Tamil, a Tamil male from the east, or a Hindu (CB 160-161 at [24]-[30]).

   10     The IAA did not accept the applicant’s claim that he has been imputed with support for the LTTE, either personally or due to any association with his cousin (CB 159 at [14]).

   11 Based on a number of inconsistencies in his statements, the IAA was not satisfied that he had an adverse profile:

   11.1  In his statements the applicant claimed his cousin had been shot on his way home from work, but in the interview he claimed his cousin had been detained by the authorities and questioned about the applicant (CB 158 at [12]).

   11.2  In the interview the applicant made claims about being in hiding in the village and staying with neighbours. However, in his statements he claimed that the neighbours were suspicious of his links to the LTTE and had identified his cousin to the authorities (CB 158 at [12]).

   11.3  The applicant gave evidence that his two sisters and brother lived in Sri Lanka throughout these events, and did not claim that they faced any harassment, suspicion or other interest due to imputed personal or family links to the LTTE (CB 158 at [13]).

   12     Nor did the IAA accept the applicant’s claims in relation to the alleged harassment and visits. The IAA found that the applicant had fabricated these claims:

   12.1  The IAA did not find it plausible that the unknown persons were so interested in him they came to his house on many occasions, but only came to his family home at night time, and not look for him on his land during the day (CB 159 at [16]).

   12.2  The IAA did not find it plausible that these unknown persons would never have approached any other members of the applicant’s family, friends or neighbours to try to find him, as the applicant stated in his evidence (CB 159 at [16]).

   12.3  The IAA found that the applicant’s claim in his interview that his mother-in-law had been questioned once, was the first time the applicant had made this claim, and he did not provide any further details (CB 159 at [16]).

   13     The IAA also did not accept that the applicant was abducted, on the basis of the applicant’s implausible, inconsistent and contradictory claims:

   13.1  In his statement, the applicant claimed he was released after his wife went to the police and complained. However at interview the applicant claimed he did not know why he was released, did not mention his wife going to the police, and said he had never reported the abduction to the police (CB 159 at [18]).

   13.2  The IAA did not find it plausible that the authorities would target him for abduction and interrogation, then release him the next day for no apparent reason (CB 159 at [19]).

   13.3  There was no evidence or claims by the applicant that he has been targeted by criminal groups or subjected to a ransom or extortion demand (CB 159-160 at [20]).

   14     The IAA also considered that if the abduction was undertaken by a criminal or paramilitary group then the applicant being released the next day indicated that he was no longer of any interest to the group (CB 159-160 at [20]). Nor did the IAA find it plausible that the applicant was being actively sought by authorities, because he was able to obtain work visas and travel to and from Sri Lanka four times between 2002 to 2012 and did not face any interest from the authorities on these occasions (CB 160 at [21]).

   15     The IAA also did not accept that the applicant feared for his safety as he did not apply for refugee status at any time during the period he was overseas (CB 160 at [22]).

   16     Having concluded that the applicant was not currently of interest to the authorities, the IAA also found that the applicant would not face harm as a returning failed asylum seeker who departed Sri Lanka illegally. The IAA also noted that the Immigrants and Emigrants Act 1949 was a law of general application and was not discriminatory in its terms or application (CB 161-162 at [31]-[41]).

   Complementary Protection Criterion

   17     Having not accepted that the applicant would face a real chance of harm under the refugee criteria for reasons relating to any imputed political opinion or any other adverse profile, the IAA was also not satisfied for the same reasons that the applicant faced a real risk of suffering significant harm (CB 164 at [49]).

   18     Considering the risk of harm to the applicant as a failed asylum seeker and due to his illegal departure, the IAA was satisfied that the applicant did not face a real risk of a custodial sentence. Although accepting the applicant may be required to spend approximately 24 hours in police custody at the airport or a nearby jail, the IAA was not satisfied that this would amount to the arbitrary deprivation of life, the death penalty or torture. The IAA was also not satisfied that there was an intention to inflict pain or suffering, severe pain or suffering, or cause extreme humiliation (CB 163-164 at [47]-[48]).

   (Emphasis in original, without alteration)

6. The applicant now seeks judicial review of the Authority’s decision.  There are two grounds in his application.  The first ground is that the Authority “made a jurisdictional error in that it did not consider all the claims of the Applicant”. 

7. The solicitors for the Minister addressed this ground on the basis that it was an assertion that the Authority had not properly, actively and mentally engaged with each of the claims made by the applicant.  That is what the ground appears to assert on its face.  The first respondent submitted, by reference to the various findings made by the Authority summarised above, that the Authority had in fact considered each of the applicant’s claims.  I agree with that submission.  The Authority first assessed each of the applicant’s personal claims ([12]-[23]) and dealt with the more general claim based upon the applicant’s ethnicity and religion at [24] – [30].

8. Next the Authority moved to the claim arising from the applicant’s illegal departure from Sri Lanka and the fact that if he were to return there he would be returning as a failed asylum seeker.  It dealt with all of those claims, both in connection with the criterion under sub-s.36(2)(a) of the Act which concerns the definition of a refugee, and the criterion in sub-s.36(2)(aa), often called the complementary protection criterion. 

9. For those reasons, on the understanding of the first ground as I have expressed it, the ground must fail.  However, at the hearing I asked the applicant who appeared unrepresented what he understood the ground to mean.  He said that he had prepared his application and that what he meant was that the Authority had fallen into error by not accepting his claims.

10. The applicant is clearly correct to say that the Authority had not accepted his claims and it may be that the Authority has fallen into error. However, if there be an error, the only error concerns the merits of the Authority’s decision. The Court’s power does not extend to examining those merits because the question of whether an applicant satisfies the criteria for the grant of a visa, is a matter to be determined according to the satisfaction of the relevant decision-maker, in this case the Authority.

11. While the Court can examine whether that state of satisfaction was arrived at on a proper understanding of the law, and on the basis of inferences and findings of fact available on the material before the Authority, it cannot interfere simply because the findings of fact and conclusions were wrong. For those reasons, the ground as understood in light of the applicant’s clarification at the hearing must also be rejected.

12. The second ground is that the Authority “made a jurisdictional error. SZTAL Basis.”  The reference to “SZTAL” is a reference to a series of decisions made firstly in this court: see SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64; secondly, on appeal in the Full Court of the Federal Court in SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556 and, thirdly, on appeal by grant of special leave in the High Court in SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936.

13. The issue in each of those cases was whether the definition of “significant harm” for the purposes of the criterion in sub-s.36(2)(aa) required an element of subjective intention.  The issue potentially arose in this case in light of [48] in the Authority’s reasons where the Authority said[1]:

    … There is also no indication that authorities or others, through any act or omission intentionally inflict pain or suffering or severe pain or suffering, such as to meet the definition of cruel or inhuman treatment or punishment, nor any intention to cause extreme humiliation. …

    [1] Courtbook, page 164, line 6.

14. At the time at which this application was filed there had been a grant of special leave by the High Court to appeal from the decision of the Full Court in SZTAL.  That means that there was a possibility of arguing, as the applicant appears to have in this case, that the Authority was wrong to draw conclusions from the lack of subjective intention.  However, the later delivery of the judgment by the High Court put the issue beyond question.  By majority, the High Court upheld the decision of the Full Court in SZTAL (FCAFC): see in particular SZTAL (HC) at [26]. The consequence of that is that the ground must fail.

Conclusion 

1. The grounds raised by the applicant have not been made out.  There is no apparent other jurisdictional error in the Authority’s decision.  For those reasons the application must be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     12 October 2018