BKD17 v Minister for Immigration

[2018] FCCA 3182

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3182

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in not considering possibility of future harm – whether the Authority erred in failing to consider a claim – jurisdictional error – writs issued.

PRACTICE & PROCEDURE – Leave sought to file further amended application to replead grounds in their entirety – leave granted.

Legislation:
Migration Act 1958 (Cth), s.46A

Other materials cited:
United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012

Applicant: BKD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1002 of 2017

Judgment of: Judge Smith

Hearing date: 8 August 2018

Date of Last Submission: 8 August 2018

Delivered at: Sydney

Delivered on: 23 November 2018

REPRESENTATION

Counsel for the Applicant: Mr L Karp with Mr G Schipp

Solicitors for the Applicant: Rasan T Selliah & Associates

Counsel for the First Respondent: Mr J Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent dated 6 March 2017.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 12 January 2017 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1002 of 2017

BKD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority dated 6 March 2017. The Authority affirmed the decision of a delegate of the Minister for Immigration to refuse the grant of a protection visa.

Background

1. The applicant is a citizen of Sri Lanka who arrived in Australia on Christmas Island on 5 November 2012. By virtue of the applicant being an unauthorised maritime arrival the Minister was required to exercise the power under s.46A of the Migration Act 1958 (Cth) to enable the applicant to apply for a protection visa. The Minister exercised this power and advised the applicant of this by letter dated 21 December 2015.

2. On 8 July 2016 the applicant lodged an application for a safe haven protection visa. The applicant claimed that he feared harm in Sri Lanka as a result of working and having familial connections to the Liberation Tigers of Tamil Eelam (LTTE). He claimed that his father and cousins had worked for the LTTE and that he had worked from 2000-2007 in a non-combatant role for the LTTE: first, collecting taxes at checkpoints; secondly, distributing food and clothing for the LTTE; and thirdly, as a bus driver for the LTTE transporting civilians and LTTE members. He claimed that many people would have seen him working for the LTTE in this period.

3. The applicant was injured in a shell attack in 2007 and in 2008 sought treatment for that injury in another area. Two days after his arrival in that area, the home where he was staying was raided by the Criminal Investigation Department (CID) and, as the applicant knew of people being taken by the CID who had not returned, he ran away and hid.

4. In 2009 the applicant was taken to a camp for internally displaced persons where he claimed that every week the CID would take him to a room for two or three hours and interrogate him about his involvement with the LTTE. The applicant was aware something bad would happen to him if he stayed so he bribed an officer to help him escape the camp and went to stay with his aunt in Jaffna.

5. In 2011 the applicant’s aunt was visited by the CID looking for the applicant and he then moved frequently to avoid detection. He was able to flee to India in 2012 and remained there until he departed for Australia.

6. The applicant claimed that his aunt and his sister, who both remain in Sri Lanka, have been visited by the CID making enquiries as to the applicant’s whereabouts.

7. On 12 January 2017 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. As the applicant was a “fast track applicant” the matter was referred to the Authority for review.

8. On 6 February 2017 the applicant sent the Authority a further police report and on 9 February 2017 written submissions.

9. On 6 March 2017 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.

Authority’s decision

1. The Authority accepted the applicant’s familial connections to the LTTE including that his father had worked for the LTTE and his cousins were involved with or had been detained, killed or were missing. It accepted that the applicant’s relatives could fit within categories identified in the UNHCR Eligibility Guidelines for Sri Lanka[1]. However, the Authority was satisfied there was no evidence before it, or claim made by the applicant that he was questioned by the Sri Lankan authorities in relation to his family, or that during interrogations on a number of occasions in 2009, the authorities showed any interest in his relatives. The Authority concluded that the applicant did not have a real chance of serious harm arising from his family connections to the LTTE or that he would be imputed with an adverse profile as a result of his familial associations.

   [1] United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.

2. The Authority accepted the applicant worked as a tax collector for the LTTE from 2000-2004 and that he undertook other employment for the LTTE as a bus driver between 2004 and 2007 until he was injured. The Authority found that there was no evidence or information to suggest that the Sri Lankan authorities were aware or interested in the applicant because of his employment. It noted in this respect that, when interrogated, the applicant did not admit his LTTE involvement and that the authorities never charged or detained him, or gave any indication that they were aware of his activities.

3. It will be necessary to return to the way in which the Authority dealt with the tax collector claim in some detail when considering the applicant’s first ground.

4. The Authority accepted that the applicant was taken to the displaced persons camp for questioning on several occasions; however, it found that he was questioned as part of a screening process, did not suffer mistreatment and was not removed to a detention centre which, on the basis of the country information, led the Authority to find that the applicant was not the subject of suspicion in relation to any links with the LTTE.

5. The Authority also accepted the applicant’s claim to have bribed an officer to escape the camp but it did not accept that the applicant was going to be killed or that the officer would have allowed the applicant to depart if he was in fact an identified LTTE suspect.

6. I will return to these findings when dealing with ground 2.

7. The Authority rejected the claims that the Sri Lankan authorities came to the applicant’s father and sister’s home looking for him as it was not satisfied the authorities suspected him of involvement with the LTTE or being of any interest.

8. As the applicant departed Sri Lanka legally, the Authority reasoned that the applicant was not a person of interest to the authorities when he departed and that there was no evidence he had been involved in, or suspected of activities or processes that were critical of the government, or that he would do so upon return to Sri Lanka. The Authority was not satisfied that the applicant would be imputed with an opinion critical of the government.

9. The Authority considered if the applicant was at risk of harm as a Tamil from the North and relied upon its findings that the applicant would not be imputed with an adverse security profile. As those at a general risk of harm appeared to be those who have been, or would be imputed with membership or support for the LTTE, and the applicant was found to not possess an adverse profile,  the Authority was not satisfied he would suffer harm for this reason. Accepting the applicant would still face difficulties and disadvantages as a Tamil male from the North, the Authority was not satisfied these were of a level to constitute serious harm.

10. The Authority was satisfied that the applicant did not face a real chance of harm on the basis of his former involvement with the LTTE, his association with family members involved with the LTTE, any imputed involvement with or support for the LTTE, for being a witness to war crimes, his race, religion or ethnicity, or by being a returned asylum seeker. It was similarly satisfied that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka there was a real risk that the applicant will suffer significant harm. For those reasons, the Authority found that the applicant did not satisfy the criteria for a protection visa and affirmed the delegate’s decision.

Consideration

1. The applicant was granted leave to file a further amended application in Court at the hearing on 8 August 2018. There are two grounds in the further amended application.

Ground 1

1. The applicant argues that the Authority fell into error because its conclusion that the applicant would not be harmed in the future was based principally, if not solely, on its findings that the authorities in Sri Lanka had not been interested in him in the past. In order to deal with this contention it is necessary to examine, first, the Authority’s relevant conclusions in their context and then to consider the reasons given by it for those conclusions.

2. The Authority’s ultimate conclusion in respect of the applicant’s claims were stated at [69] of its reasons:

   I am satisfied that the applicant does not face a real chance of harm on the basis of his former involvement with the LTTE, his association with family members involved with the LTTE, any imputed involvement with or support for the LTTE, for being a witness to war crimes, his race, religion or ethnicity, or by being a returned asylum seeker.

3. The finding was, for the most part, based on the Authority’s finding at [61]. Before turning to that paragraph, it is important to note its context. At [60] the Authority stated its conclusions from the country information concerning the types of people who are at risk of harm from the authorities in Sri Lanka. It rejected the contention that all Tamils from the North of the country are at a general risk of harm and then stated:

   ... Those at risk of harm appear to be those who have been or would be imputed with membership of or support for the LTTE, or those who have been involved in resurgence or separatist activities.

4. This conclusion set the parameters for the Authority’s determination of whether the applicant, a Tamil from the North of Sri Lanka, who had links to the LTTE and who had worked for the LTTE for a period of 7 years, might face harm in the future. That determination was summarised in the next paragraph where the Authority stated:

   [61] I have found that the applicant will not be imputed with an adverse security profile. I also take into account that he has been questioned previously about possible LTTE involvement and was not identified or imputed with a profile at that time. I have found that the applicant will not be imputed with any adverse profile as a result of familial association. I note that there is no evidence and the applicant has not claimed that he has been or will be involved in separatist activities, the re-establishment of the LTTE or other activities critical of the government. I accept that although the applicant does not have an adverse profile he will still face difficulties …

5. On its face, this paragraph stands against the applicant’s argument as it appears to deal appropriately and conclusively with his claims. However, two statements in the paragraph require closer examination.

6. The first is the first sentence. In it, the Authority states that it has made a finding “that the applicant will not be imputed with an adverse security profile”. The second is the assertion that the Authority had “found that the applicant will not be imputed with any adverse profile as a result of familial association”. In the context of the findings in [60], “profile” must mean “membership of or support for the LTTE”.

7. There are two possible ways to view these statements: first, they are simply referring to findings that have already been made. This is the most obvious meaning given the grammar (“have found”) and the context of the paragraph, being after the Authority’s consideration of each of the applicant’s claims in which it did make findings. The second way is to see them as findings based on earlier findings. There are difficulties either way.

8. The immediate difficulty with the first two of these statements on the view that they refer to past findings is that they are incorrect. The Authority had not made any such findings. The most that the Authority relevantly stated was that the Sri Lankan authorities did not, and had not, suspected the applicant of LTTE connections. Thus, it found:

   a)“… there is no evidence  … that suggests the authorities are aware of or interested in the applicant because of this previous involvement” (emphasis added): [25];

   b)“… I am not satisfied that the authorities were searching for the applicant or that he had any adverse security profile with the authorities at this time” (emphasis added): [34];

   c)“… I am satisfied that the authorities did not suspect him of involvement with the LTTE” (emphasis added): [39];

   d)“… I am not satisfied that he was of any interest to the authorities at this time” (emphasis added): [42];

   e)“…I am satisfied the applicant was not a person of interest to the authorities when he departed Sri Lanka” (emphasis added): [47];

   f)“… I am not satisfied that the applicant is a person of interest who is being sought by the authorities …” (emphasis added): [52].

9. These findings are all about the past and present. They do not, as suggested in the two statements in [61] amount to findings that the applicant will not be imputed with an adverse security profile. I conclude that the Authority wrongly thought that it had made that finding. It misled itself about that fact and, because its ultimate conclusion was based on the finding that was not made, it failed to actually answer the question posed by the criteria for the grant of a protection visa.

10. If these statements are viewed as findings drawn from the Authority’s previous findings, they are equally problematic. The difficulty is that, once the Authority found that the applicant did, as a matter of fact, have a background that strongly supported the existence of an adverse “profile” (in the sense suggested in [60]), the fact that the authorities had not in the past been aware of those facts could not alone, as a matter of logic, answer the question whether there was a real risk that they might become aware of it in the reasonably foreseeable future.

11. For those reasons, I am satisfied that the Authority fell into jurisdictional error and that the first ground in the amended application must be upheld.

Ground 2

1. In ground 2 the applicant contends that the Authority failed to consider that the applicant may be persecuted upon return to Sri Lanka because he had escaped from a government camp.

2. The applicant claimed, and the Authority accepted, that he had paid a bribe to a member of the Sri Lankan Army in order to escape from a camp: [41]. The Authority did not accept the related claims that he was, at that time, suspected of being an LTTE member and had been identified to be taken and killed: [41]. It also found, as already noted above, that the applicant was not of any interest to the authorities “at this time”: [42]. That was the extent of the Authority’s consideration of this claim. However, it was not the extent of the claim.

3. The applicant claimed that the fact of bribing his way out of the camp itself, combined with his other personal background, created a profile for the applicant that would make the CID suspicious that he is a threat to the national security[2]. That claim was not part of the general findings in [61] which, as I have found, are affected by error in any event.

   [2] Exhibit A, p.173.1.

4. The failure by the Authority to consider and deal with an articulated claim or one based on established facts amounts to a constructive failure to exercise jurisdiction.

5. For those reasons, I find that ground 2 must also succeed.

Conclusion

1. I have found there is jurisdictional error in the Authority’s decision and there will be an order for the issue of writs of certiorari and mandamus

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       23 November 2018