BFB17 v Minister for Immigration

[2017] FCCA 2688

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFB17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2688

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to apply the correct real chance test – it was open to the Authority to give such weight as it saw fit to the country information – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DE, 476

Applicant: BFB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 844 of 2017

Judgment of: Judge Street

Hearing date: 2 November 2017

Date of Last Submission: 2 November 2017

Delivered at: Sydney

Delivered on: 2 November 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones
On a direct access basis

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Grant leave to the applicant to rely upon the amended application attached to the submissions filed on 19 October 2017 and the Court dispenses with the need to file an electronic copy of the same.

2. The amended application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 844 of 2017

BFB17

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 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise (subclass 790) 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 as an unauthorised maritime arrival on 21 October 2012. The application for the visa was lodged on 12 April 2016. On 20 December 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa. 

The Authority’s decision

1. On 5 January 2017, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter explained there were only limited circumstances in which the Authority could consider new information. The letter attached a factsheet and practice direction providing the applicant with an opportunity to put on new information and submissions. 

2. The Authority in its reasons dated 17 January 2017 identified the background to the visa application and had regard to the material referred under s 473CB of the Act. The Authority identified country information dated 24 January 2017 to which the Authority had regard and which fell within s 473DE(3)(a).

3. The applicant claimed to fear harm from the Special Task Force due to assistance provided to the Tamil National Alliance (“TNA”) prior to the elections in 2012 and by reason of imputed links with the Liberation Tigers of Tamil Eelam (“LTTE”), as well as by reason of his illegal departure and being a failed asylum seeker. 

Assessment of Refugee Convention criteria

1. The Authority set out the applicant’s claims and summarised the relevant law, as well as attaching and incorporating statutory provisions at the end of the Authority’s reasons. The Authority accepted that the applicant is a Hindu Tamil from the Batticaloa district in the Eastern Province. The Authority accepted the applicant’s account of his experience growing up in an LTTE-controlled area during the war and the difficulties faced by his family. 

2. The Authority accepted up to the end of the war and throughout 2009, the applicant was subjected to harassment, detention and interrogation by army officers about suspected involvement in LTTE activities. The Authority found the applicant’s experience to be consistent with country information detailing harassment and mistreatment of ordinary Tamil citizens during the civil war and immediately after it ended. The Authority made reference to DFAT information identifying that many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and detained by security forces during the conflict, and with LTTE support at times imputed on the basis of ethnicity.

3. The applicant referred to being questioned for different lengths of time, and accompanied by being beaten with a pipe. During the interrogation, the applicant maintained he had no involvement with the LTTE. Having regard to the short, intermittent periods the applicant was held, and that no charges were brought against him, the Authority was satisfied that the Sri Lankan authorities at the time suspected LTTE involvement by the applicant, but considered him to be a person with a low-level connection rather than a person who held a position of Authority or provided significant support to the LTTE.

4. The Authority made reference to the applicant’s evidence about the disappearance of his brother in February 2009. The Authority referred to the applicant's brother living in Malaysia since 2006 and that he disappeared when he left the family to visit friends. The Authority noted the applicant has not claimed a link between his brother's disappearance and his own treatment by army officers in 2009. The Authority found there is no information to indicate the authorities imputed LTTE involvement by the applicant due to the circumstances of his brother or any other family member.

5. The Authority accepted the applicant as a Tamil has concerns about mistreatment from government and security personnel. The Authority made reference to DFAT country information identifying that the situation had improved since the applicant left Sri Lanka in 2012.  The Authority made reference to monitoring and harassment of Tamils in day-to-day life having decreased significantly and a positive shift in the nature of interactions with authorities.

6. The Authority made reference to the 2012 UNHCR Guidelines which states that originating from an area previously controlled by the LTTE does not in itself result in the need for international refugee protection. The Authority made reference to US country information that official laws or policies applying to all Sri Lankans do not discriminate on the basis of ethnicity however, societal discrimination on the basis of ethnicity can still occur. The Authority made reference to the applicant finishing school up to year 6 at the local primary school and being able to learn a trade and to be employed at his brother's jewellery store in the village for a number of years. The Authority noted that while the applicant stated there was some fighting in the streets that sometimes made it difficult to reach the temple, the applicant was not otherwise prevented from practicing his religion.

7. It was in these circumstances that the Authority found the applicant does not have a profile that would attract adverse attention from Sri Lankan authorities on his return to Sri Lanka. The Authority made express reference to country information and the personal circumstances of the applicant, including his family connections and previous questioning by Sri Lankan authorities in 2009 for suspected LTTE involvement in making a finding that the Authority was not satisfied the applicant will face a real chance of serious harm on the basis of his Tamil ethnicity and/or because he originates from the Batticaloa district in the Eastern province.

8. The Authority found the applicant does not have a profile of imputed LTTE association and/or TNA support that would give rise to a real chance of harm. The Authority found the decision of the State Task Force to release the applicant and other members after six hours of interrogation and return them to the village is indicative the applicant's claims of limited involvement with the TNA were accepted. The Authority also made reference to the applicant's ability to travel to Qatar on a work visa and return to Sri Lanka in February 2012. The Authority was satisfied that there is not a real chance now or in the foreseeable future that the army and State Task Force officers who interrogated the applicant would have an ongoing interest in him.

9. The Authority made reference to the passage of time and the political landscape in Sri Lanka having changed, and the chance of the applicant being harassed or intimidated in the future on the basis of low level political activities in 2012 was found to be remote. The Authority found the applicant would not engage in political activities in support of the TNA in the foreseeable future on his return to Sri Lanka.

10. The Authority did not accept the applicant's claim in relation to his mother being shown a copy of the photos and questioned by CID officers about the applicant's location and activities during his attendance at the Martyrs' Day event. The Authority found the applicant's suggestion that the CID attended on his mother on one occasion in 2015 only with no further contact in more than 12 months to be implausible and inconsistent with his claim that CID are after him. The Authority did not accept the applicant's inference that his brother's charges for offences unstated were connected to the applicant's attendance at the Martyrs' Day event.

11. On the basis of the country information the applicant's profile as a TNA supporter or links to the LTTE were assessed by the Authority as being low. Due to the nature of his participation at the Martyrs' Day commemoration event and the absence of enquiries about Sri Lankan authorities, the Authority was satisfied the applicant would not face a real chance of serious harm on return to Sri Lanka due to imputed LTTE association or as a TNA supporter.

12. The Authority made reference to the applicant returning to Sri Lanka as a returned asylum seeker and illegal departee. The Authority was not satisfied the short period of detention with the applicant's personal conditions would amount to serious harm. The Authority found the detention for the purpose of being charged with offences under the Immigrants and Emigrants Act and the imposition of a fine on pleading guilty would not give rise to a real chance of harm. The Authority found that there is no evidence that the procedures are discriminatory on their face and they are not applied in a discriminatory manner. The Authority was not satisfied the applicant will face real chance of serious harm on the basis of being a returned asylum seeker and/or for illegal departure.

13. The Authority having considered the applicant's claims cumulatively, including his profile as a male Hindu Tamil from the Eastern province perceived to be a supporter of the TNA and with imputed links to the LTTE and he will be returned an asylum seeker who departed illegally, found that this did not give rise to a real chance of serious harm. The Authority found the applicant failed to meet the requirements of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria under s 36(2)(a) of the Act.

Assessment of Complementary Protection criteria

1. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the definition of the criteria under s 36(2)(aa) of the Act.

Before this Court

1. The ground in the amended application is as follows:

   1. The country information before the Immigration Assessment Authority (“the IAA”) indicated that up until a period following the end of the civil war in 2009 the Sri Lankan authorities harassed and mistreated the Tamil population. The country information also indicated that, more recently, the situation for Tamils in Sri Lanka has improved. However, the fact that the situation has improved does not, without more, mean that Tamils do not face a real chance of persecution. The IAA reasoned that, because the security situation for Tamils in Sri Lanka has improved, the applicant did not face a real chance of serious harm on the basis of his Tamil ethnicity. This reasoning process involves an error in applying the real chance test, which is a jurisdictional error. 

2. Mr Jones of counsel on behalf of the applicant, submitted that the Authority had failed to apply the real chance test and that this was reflected by the Authority’s focus on the improvement in the state of affairs for Tamils in Sri Lanka from country information.  Mr Jones submitted that that improvement did not reflect the considerations of the real chance test that the Authority was required to apply in relation to the Refugees Convention. Mr Jones submitted that the Authority's reasons in paragraphs 12, 15 and 16 meant that the finding in paragraph 17 was infected by error in failing to properly apply the “real chance” test.

3. The Authority’s reasons are not to be read with a keen eye for error. It was appropriate for the Authority to identify and open to the Authority to give such weight as it saw fit to the country information. The adverse finding by the Authority in respect of the absence of a real chance of serious harm was identified as taking into account not only the country information but the personal circumstances of the applicant including his family connections, previous questioning by authorities in 2009 and also the applicant’s profile. The reference to the country information does not identify a basis upon which the Court should infer that the Authority failed to apply the real chance test in the law that was correctly identified by the Authority in its reasons. No jurisdictional error as alleged in ground 1 of the amended application is made out. 

4. The amended application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  22 November 2017