BKM17 v Minister for Immigration

[2017] FCCA 3094

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKM17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3094

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – the Authority made findings dispositive of the applicant’s claims – there is no integer of the applicant’s claims that the Authority failed to address – it was open to the Authority to make a finding that the applicant did not have a profile that fell within the categories outlined in the UNHCR Guidelines – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant: BKM17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1014 of 2017

Judgment of: Judge Street

Hearing date: 11 December 2017

Date of Last Submission: 11 December 2017

Delivered at: Sydney

Delivered on: 11 December 2017

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Hodges Legal

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore Lawyers

ORDERS

1. Grant leave to the applicant to amend ground 1(b) and ground 2(b)(ii) by adding at the end thereof “and in respect of the land dispute” and the Court dispenses with the need for the electronic filing of the amended application.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1014 of 2017

BKM17

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 Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 17 March 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise (Subclass 790) visa.

2. The applicant arrived in Australia as an unauthorised maritime arrival on 10 September 2012. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant claimed that his father had been shot and killed because of links to the Liberation Tigers of Tamil Eelam (“LTTE”) and that his father was involved in transporting members of the LTTE. The applicant alleged that in 1996 his grandfather died and that land that should have been left to him and his mother and sister was under the military control and the applicant was not able to do anything with the land. The applicant alleged the Sri Lankan army began building on the land in May 2012 and that he and his uncle went to confront the soldiers as to who gave them permission to build on the land and were rebuffed. The applicant alleged that his uncle attempted a sit-in protest but became scared and left. The applicant alleged that he and his uncle went to their member of parliament, who advised them to report the issue to the Human Rights Commission in Mannar. The applicant alleged he did so and on two occasions he visited the land to take a video and photographs of the army. The applicant alleged he was threatened and on the second occasion he was assaulted and his camera was broken.

3. The applicant alleged the army became aware of the complaint and one evening soldiers intercepted the applicant on his way home and assaulted him. The applicant alleged his uncle went into hiding at this time and that in July 2012 men visited his home and told his mother that he had done something against them and that they would kill him. The applicant also feared that he would be killed, because he was a Tamil and because he had had a problem with the land.

4. The applicant raised additional claims with the delegate at the interview on 16 December 2016 and said he was called to an army post, where he was detained for two days and questioned about the LTTE as revenge for making complaints against the army. The applicant claimed his family moved to Jaffna and now worked there and that they received a letter in 2014 from the Presidential office stating the army would be staying on the family’s land. On 23 January 2017 the delegate found the applicant failed to meet the criteria for the grant of the visa.

The Authority’s decision

1. On 30 January 2017, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter identified that there were limited circumstances in which the Authority could receive new information. The letter attached a practice direction and fact sheet giving the applicant an opportunity to put on new information and to put on submissions.

2. The Authority in its reasons identified the applicant was a Catholic Tamil from Mannar in the Northern province in Sri Lanka and that the applicant feared return, because he would be at risk of being harmed by the Sri Lankan army for imputed LTTE association and for his opposition to the army’s occupation and development of his land.

3. The Authority identified having regard to the material referred under s 473CB of the Act and also took into account an updated country information report consistent with s 473DE(3)(a) of the Act.

The applicant’s claims for protection

1. The Authority summarised the applicant’s claims for protection, including expressly referring to the fact that in September 1989 his father was shot and killed by unknown men for supporting the LTTE by doing favours such as taking members to safe places in Sri Lanka. The summary also included reference to the grandfather’s death and the applicant inheriting land, that during the civil conflict, the land has been under military control and the applicant has had no access to it. The Authority summarised that at the end of May 2012, the army started to build a house on the land and erect tents and the applicant and his uncle went to the property to protest against the development by sitting down and said they would not move until they pulled down the house. The Authority in the summary noted that the army threatened them and tried to chase them away. The applicant alleged that he and his uncle clashed with the army personnel and they went back to the land on two separate occasions to take photographs and video evidence to support a complaint to the Human Rights Commission in Mannar.

2. The applicant alleged that the army officers beat his uncle and when the applicant intervened he was also hit and his camera and video camera were broken. The applicant alleged in June 2012 the applicant’s story was published in a newspaper but that he was not named but able to be identified by the article’s description. The applicant alleged that following a complaint to the Human Rights Commission, the applicant was stopped and taken by three men to a half-constructed house, where he was assaulted for about 15 minutes before being slapped and hit, and the applicant believed the men were from the army because they were carrying weapons and said to him he had to stop talking about the issue, otherwise something bad would happen to him. The summary by the Authority also referred to the applicant’s uncle having been threatened and gone into hiding. The applicant also alleged that he was called for an interview by the army which he attended, that they questioned him about LTTE involvement, that he was detained for two days and the applicant believed this encounter was targeted at him so as to stop him going to his home.

Assessment of Refugee Convention criteria

1. The Authority identified the relevant law and summarised the applicant’s claims and evidence. The Authority accepted the applicant’s claim about the circumstances of his father’s death in 1989 and the Sri Lankan Army’s acquisition of the family’s land during the civil conflict. The Authority referred to the applicant’s claim that the family land had been occupied by the army as being consistent with country information and corroborated by the translated article from a particular newspaper provided by the applicant.

2. The Authority referred to the applicant travelling legally to India for three months in 2008 on a tourist visa and that he had not been previously targeted or harassed by authorities. It was in those circumstances, that the Authority found the applicant was not viewed by the authorities as having any connection with the LTTE, either actual or imputed at that time. The Authority was accordingly satisfied the applicant did not hold a profile that would attract adverse attention of the authorities.

3. The Authority then turned to the applicant’s claims in relation to the family land and the army’s construction of buildings at the end of April 2012. Given the country information and the newspaper article, the Authority accepted that account as plausible.

4. The Authority then turned to the applicant’s claims concerning his and his uncle’s protest. The Authority identified that while it accepted the newspaper article was published, the applicant’s claim about action taken through the Human Rights Commission was less clear. The Authority identified, having considerable doubt that the complaint to the Commission was formalised and that there is an ongoing case. The Authority found there was no credible material to corroborate the evidence of progress of the Commission’s proceedings. It was in these circumstances that the Authority did not accept the applicant has made a formal complaint or is involved in ongoing complaint proceedings against the army through the Human Rights Commission.

5. The Authority referred to the incident alleged by the applicant at the time of his statement of claims in which he was stopped by three men, slapped and told to stop talking about the issue as otherwise something would happen to him. The Authority noted that at the visa interview a different account depicted four men. The Authority found the applicant’s account provided at the visa interview to be an embellishment of the original claim and overstated the degree of mistreatment by the authorities and the level of threat. The Authority accepted that while the applicant and his uncle were harassed and mistreated by army personnel in response to the newspaper article, the Authority did not accept that the encounter with the army personnel involved serious harm to the applicant and found that he was released within a short period of time.

6. The Authority referred to the absence of information about the threats made to the applicant’s uncle and the circumstances of having gone into hiding. Accordingly, the Authority was not satisfied the uncle’s interaction with the army gives rise to a real chance of serious harm for the applicant.

7. The Authority referred to the new claim raised by the applicant that he had to attend an army camp. The Authority identified, having considerable doubt given the applicant’s profile, about the applicant, being questioned for LTTE activities over the course of two days. The Authority found that given the absence of any interference in the applicant’s LTTE-related activities by the authorities previously and his apparent ease of travel to India in 2008 on a tourist visa that the applicant did not have a profile of association with the LTTE that would prompt the adverse interest of the army. In those circumstances, taking into account that this claim was raised belatedly, the Authority was satisfied the applicant’s account was a recent invention to bolster his claims for protection and did not accept that the encounter, detention for two days and questioning about LTTE activities by the army occurred. The Authority also identified having difficulty about the applicant being in hiding for a number of months and that his passport was confiscated. The Authority referred to the applicant at his visa interview, confirming that he continued to work as a bus driver during this period and passed through military checkpoints.

8. The Authority found it implausible that passengers would accept timetabling that suited the applicant at odd times and that checkpoint personnel would never check the driver’s identification. The Authority considered the applicant’s continuing work in an occupation that exposed him to checkpoints clearly inconsistent with the person who was in hiding from the army. The Authority also referred to the applicant providing the department with a certified copy of his passport as part of his documents in relation to his identity. The Authority did not accept that the army personnel visited his home, confiscated his passport and national ID card in order to prevent him from leaving the country as claimed.

9. The Authority referred to accepting that the applicant’s family may have experienced some harassment from the army in connection with the land dispute and that this formed part of their decision to relocate. The Authority considered that the harassment was of a level that did not result in serious harm and that on the information before the Authority, found that that ceased upon the relocation to Jaffna. Taking into account the Authority’s earlier findings about the applicant’s profile, the Authority did not accept the claim that army personnel visited his home in November 2012 and again three months later to seek him out and threaten to kill him, and did not accept that they would do so should he return to Sri Lanka and resume living with his family.

10. The Authority referred to taking into account the claim in relation to the army continuing to occupy the land and took into account there was no information that indicated that the applicant explored other avenues of redress since his departure from Sri Lanka and had not indicated any intention to do so in the future as well as taking into account the adverse findings about the alleged complaint to the Human Rights Commission. It was in these circumstances given the relocation, that the Authority found that the applicant would not be within the same vicinity as the army personnel who occupied the land. The Authority referred to it being more than four years since the publication of the newspaper article, and in the absence of other public criticism of the army by the applicant, the Authority did not consider it credible that the army would target the applicant in retaliation for that purpose. It was in these circumstances, that the Authority was satisfied that the applicant would not face a real chance of serious harm on return to Sri Lanka due to any continued opposition to the army’s occupation of the family land. The Authority found that the army’s occupation of the land did not of itself engage any of the reasons identified in the s 5J(1)(a) of the Act.

11. The Authority found the applicant did not hold a profile that would attract the adverse attention of authorities on return to Sri Lanka. The Authority was not satisfied that the applicant would face a real chance of serious harm from authorities on the basis of his Tamil ethnicity and/or because he originates from Mannar in the Northern Province, or for imputed LTTE association. The Authority was not satisfied that the applicant will face a real chance of serious harm due to his opposition to the army’s occupation and development of his land.

12. The Authority referred to the applicant’s claim to fear of harm by reason of having departed Sri Lanka illegally and the LTTE association that will be imputed to him by the authorities. The Authority found that the fine that may be imposed under the Immigrants and Emigrants Act would be payable by instalments and did not give rise to serious harm. The Authority considered whether the detention of the applicant for a short period, or receipt of financial penalty upon a plea of guilty would amount to serious harm and, having taken the matters into account cumulatively, found that it would not amount to serious harm.

13. The Authority was not satisfied the applicant faces a real chance of serious harm on the basis of being a returned asylum seeker and/or illegal departee. The Authority, having considered the applicant’s claims cumulatively, in respect of his profile as a male Catholic Tamil from the Northern Province, with imputed LTTE association arising from his father’s support of the LTTE, his opposition to the army’s occupation of the land in Mannar and that the applicant will be a returned asylum seek departed the country illegally, found that they do not give rise to a real chance of serious harm.

14. The Authority found the applicant failed to meet the criteria in the definition of refugee in s 5H(1) of the Act and the applicant did not meet the criteria under s 36(2)(a) of the Act.

Assessment of complementary protection criteria

1. The Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant would suffer significant harm and found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the application are as follows:

   1. The IAA committed jurisdictional error by failing to consider an integer of the applicant's claim.

   PARTICULARS

   (a) At [5], the applicant claimed that, in 1989, his father was shot and killed by unknown men for supporting the LTTE.

   (b) The applicant further claims that his father provided support to the LTTE by transporting members to safe places in Sri Lanka and in respect of the land dispute.

   (c) At [11], the IAA accepts the applicant's claim about 'the circumstances of his father's death'.

   (d) However, the IAA does not make further findings on the this. In particular, the IAA does not make a finding on whether the applicant's father was involved in LTTE activities.

   2. The IAA failed to consider whether the applicant faced a real chance of suffering harm because the applicant fits into UNCHR's risk profile criteria described in the evidence.

   PARTICULARS

   (a) The risk categories outlined in the 2012 UNCHR guildelines include:

   i. Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE… persons with family links or who are dependent on or otherwise closely related to persons with the above profile”

   (b) At [5], the applicant claimed that his father provided support to the LTTE by transporting members to safe locations in Sri Lanka.

   i. Accordingly, the applicant's father fits squarely into one of the categories outlined above.

   ii. As a result, the circumstances of the applicant, as a person 'with family links to persons with the above profile' are within the risk profiles outlined by the UNCHR and in respect of the land dispute.

Amendment of the grounds in the application

1. In the course of submissions, Mr Hodges, the solicitor for the applicant, developed an oral argument in relation to an alleged failure by the Authority to properly consider the applicant’s risk by referring to the army’s occupation of the land. When invited by the Court to indicate whether an amendment was sought, Mr Hodges identified that he sought to amend the application in relation to the army’s occupation of the land. The Court raised with Mr Hodges whether he wished to have added at the end of ground 1(b) and 2(b)(ii) the words “and in respect of the land dispute” and Mr Hodges made an application to amend in that regard. The Court granted that amendment.

2. The first respondent was given an opportunity to seek instructions in relation to that amendment and confirmed that no adjournment application was pressed. The grounds in the reasons will have added the words referred to.

Consideration

Ground 1

1. In relation to ground 1, Mr Hodges took the Court to the acceptance in the Authority’s reasons of the father’s death and contended that there should have been a further finding in relation to the father’s involvement in the LTTE activities.

1. On a fair reading of the Authority’s reasons, the Authority made dispositive findings in respect of the applicant’s claims. There is no integer of the applicant’s claims that the Authority failed to address. The Authority took into account the land dispute and made dispositive findings summarised above. The Authority expressly took into account the applicant’s potential LTTE association by reference to his father in its cumulative consideration. Further, the Authority correctly summarised the background in relation to the applicant’s father and the use of the term association is not one to be read with a keen eye for error.

2. On the face of the Authority’s reasons, the Authority meaningfully engaged with the applicant’s claims and evidence and made adverse findings dispositive to the applicant’s claims that were open to it for the reasons summarised above. Those reasons were rational and logical. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, Mr Hodges took the Court to the UNHCR guidelines and, in particular, the categories of persons identified as having profiles in that report. It was submitted that the applicant was one who had family links with a person, being his father, that fell within the profile identified under paragraph 4, being a former LTTE supporter involved in transporting LTTE personnel.

2. The Authority’s reasons expressly referred to the UNHCR guidelines. Mr Hodges, notwithstanding the amendment, properly conceded that the land dispute was a separate matter and was not one which fell within any of the categories within the profiles. That was a proper concession.

3. On the face of the material before the court, the Authority took into account, in its refugee assessment of the applicant, the applicant’s father’s death identified and accepted by the Authority. The Authority’s reasons are not to be read with a keen eye for error.

4. The fact that the father might have fallen within one of the categories did not, in the circumstances, give rise to the Authority being required to find that the applicant met the profile. This was a case where the applicant had travelled to India in 2008 and the Authority had made a finding that the applicant did not then have a profile with the authorities. It was, in those circumstances, both logical and open to the Authority to make such a finding. It cannot be said to be unreasonable, illogical or irrational to find that the applicant’s association with his father did not give rise to the applicant facing a real chance of suffering harm in the future.

5. On the face of the material before the Court, the Authority correctly identified the relevant law. On the face of the material before the Court, the Authority correctly applied the relevant test in relation to the chance of harm to the applicant upon return to Sri Lanka and made findings that were open to it. No jurisdictional error as alleged in ground 2 is made out.

6. For these reasons, the application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 January 2018