BKN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1454

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1454  

File number(s):	SYG 1015 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	18 June 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa (SHEV) – complementary protection – whether the Authority’s decision was legally unreasonable – whether a finding of fact was legally unreasonable – where the applicant has the responsibility to provide sufficient evidence – no jurisdictional error – amended application dismissed.
Legislation:	Migration Act1958 (Cth) pt 7AA; ss 5AAA, 5H(1), 36(2)(a), 36(2)(aa), 473CB, 473DD, 476
Number of paragraphs:	47
Date of hearing:	18 June 2021
Place:	Sydney
Solicitor for the applicant:	Mr S Hodges, Stephen Hodges Solicitor
Solicitor for the respondent:	Ms S Roberts, Mills Oakley

ORDERS

SYG 1015 of 2017

BETWEEN:

BKN17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFIARS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	18 JUNE 2021

THE COURT ORDERS THAT:

1.The amended application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $4,800.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional 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”) made on 9 March 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Safe Haven Enterprise Visa (“the Visa”).

   BACKGROUND AND APPLICANT’S CLAIMS

2. The applicant is a citizen of Sri Lanka and his claim was assessed against that country. The applicant arrived in Australia on 27 August 2012. The applicant was found to be a Hindu Tamil from Sri Lanka, and claimed to fear harm by reason of having connections to the Liberation Tigers of Tamil Elam (“the LTTE”), by reason of having been detained in a particular location as a displaced person in an Internally Displaced Persons (“IDP”) camp, and by reason of having undertaken some work for the LTTE for most of 2007 to December 2007.

3. The applicant also claimed he had a brother ‘X’, who was in the LTTE until the end of the war and underwent rehabilitation. The applicant alleged that when he left the IDP camp he was questioned about his brother X.

4. The applicant also alleged that an incident occurred in May 2011, that he was arrested in June 2012, and that Sri Lankan Army (“SLA”) members had come to his mother’s house looking for him. The applicant alleged that he feared he would be harmed because of being a Tamil and a Hindu by the Sinhalese. The applicant provided a statutory declaration in support of his Visa application in which he identified that, sometime in 2006 his brother X was forced to join the LTTE until the LTTE was temporarily defeated. Whilst the applicant’s brother was held at an army camp where he was tortured, the applicant and his family were detained at a different army camp until 26 February 2010.

5. The applicant alleged that he was fortunate not to have been tortured at a particular camp, as the authorities knew of his relationship to his brother, who was an LTTE member and he was interrogated by SLA. The applicant believed that he was not tortured because he did not divulge the role that he had played for a LTTE transport unit.

6. The applicant alleged that he had been interrogated in 2012. The applicant claimed that he was accused of being in the LTTE and asked to confess, as it was asserted that he must have been in the LTTE because his brother X was. The applicant claimed that he denied he was involved with the LTTE and was tortured. The applicant alleged that he was released and told to report to a particular officer, but that he did not do so.

7. In relation to the applicant’s fear of returning home, he asserted that he was at risk of harm and being killed by the SLA and other officials because his brother was an LTTE combatant who fought against the SLA towards the end of the war, amongst other reasons.

   DECISION BY THE DELEGATE

8. On 10 November 2016, the delegate found that the applicant failed to meet the criteria for the grant of the Visa. The delegate identified the applicant’s claims, including having a brother who was an LTTE combatant. The delegate recorded in their reasons that the applicant declared that his brother X, who now resides in Turkey, was forcibly recruited by the LTTE in 2006.

9. The delegate accepted that the applicant’s brother X was an LTTE member. The delegate also took into account that the applicant was questioned by the SLA and released from a particular IDP camp, despite having provided transport services for the LTTE and despite having a brother who had been recruited by the LTTE in 2006.

10. The delegate recorded that the representative for the applicant said that leaving Sri Lanka by plane could create adverse interest in the applicant, that all Sri Lankan authorities are connected, and that the movements of the applicant’s brother who went to the Netherlands could also attract adverse attention.

11. The delegate accepted that the applicant had had a brother who was an LTTE member, but found that the applicant failed to meet the criteria for the grant of the Visa.

    DECISION BY THE AUTHORITY

12. On 15 November 2016, the Authority wrote to the applicant, explaining that the application for the Visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did provide further submissions and did provide new information which, on a fair reading of the Authority’s reasons, was assessed against the whole of the criteria under s 473DD of the Act.

13. In its reasons, the Authority identified the background to the Visa application and had regard to the material referred by the secretary under s 473CB of the Act. The Authority summarised the applicant’s claims and identified the relevant law, including in an attachment on applicable law incorporated by pagination.

14. The Authority accepted that the applicant and his family were displaced during the war and detained at an IDP camp, and that they were detained until 26 February 2010. The Authority referred to the applicant’s claim that, while he was detained, he was questioned about his brother X, who was forced to join the LTTE some time in 2006 until the end of the war, and who was then was taken to a separate rehabilitation camp.

15. The Authority identified that the applicant had claimed at the interview that this connection made the authorities suspicious of him, and that the applicant was repeatedly questioned at the IDP camp about his brother X. The Authority also identified that the applicant was questioned about whether he himself was a member of the LTTE or if he had worked for the LTTE.

16. The applicant also stated that at an interview he was repeatedly questioned about a separate brother who had died in Chile, because the authorities thought their brother must have been in the LTTE. The Authority noted that the applicant was not questioned about, nor did he mention in his Irregular Maritime Arrival entry interview, whether his brother X or any other brother had been in the LTTE.

17. Notwithstanding the applicant’s failure to mention his brother X’s LTTE involvement at the earlier interview, the Authority took into consideration that, from the earliest part of the protection process, the applicant claimed that his brother X was separately detained following capture by the SLA. On that basis, the Authority was prepared to accept as plausible that his brother X was forcibly recruited into the LTTE from 2006 and that, at the end of the war, X was detained and sent to a rehabilitation camp. The Authority also accepted as plausible that the applicant was questioned about his brother X while he was in the IDP camp. 

18. The Authority referred to the applicant’s claim that he was not harmed because he did not divulge the role he played for the LTTE’s transport unit in 2007.  The Authority referred to the Department of Foreign Affairs and Trade (“DFAT”) country information from the limited detail the applicant was able to provide about the work, but accepted it as plausible that the applicant did some work from the LTTE. The Authority found that the applicant provided some transport services for the LTTE from March 2007 to December 2007. 

19. The Authority referred to the frequency of questioning of the applicant while at the IDP camp. The applicant stated that he was never harmed because the police were there, and that he never disclosed that he worked for the LTTE. The Authority accepted that, over the course of the period that he was held at the IDP camp, he was questioned on more than one occasion but not harmed.

20. The Authority referred to the applicant’s evidence regarding his interactions with the authorities following his release from the IDP camp, and found them to be confusing, relatively vague and hesitant.

21. The Authority referred to the applicant having claimed that he was detained in a camp at a particular location for 17 days. The Authority found that the evidence of the applicant as to what had occurred, what had happened and what preceded it, changed in significant respects. In considering the applicant’s evidence overall, the Authority identified concern as to his reliability as a witness and was not persuaded that, at the time he left Sri Lanka, he was a person of interest to the authorities. The Authority referred to the applicant’s willingness to change his evidence and referred to the implausibility of an incident claimed by the applicant, and did not accept that the incident occurred in the way described at the interview.

22. The Authority did accept it as plausible that, in May 2011 and because he had failed to bring some equipment to a camp as requested, the SLA came to the applicant’s house looking for him and grabbed him, intending to take him away, and that a crowd gathered, and that the SLA then decided to let him go. The Authority did not accept that the applicant was required to report the next day, or that he went into hiding after this incident, or that the CRD came to his house and searched for him several times. The Authority did not accept the applicant’s claims in that regard to be plausible. The Authority did not accept that the authorities made approximately 20 inquiries at the applicant’s home and among the community as to his whereabouts. The Authority found this to be an exaggeration designed to enhance his protection profile.

23. The Authority identified that the applicant had not been consistent in relation to the claim of a 17-day detention at a SLA camp, and that the applicant’s evidence had been vague and inconsistent with his arrival interview. The Authority did not accept it as plausible that the applicant would fail to mention something as serious as being tortured, and the allegations concerned events six months before, in his arrival interview. The Authority did not accept that there was an incident in June 2012 in which he was detained, beaten and tortured. 

24. The Authority was not satisfied that the applicant was detained in June 2012 or that he was tortured over a 17-day period, and before being released, was told to report every fortnight.  The Authority found that the applicant had exaggerated what had occurred in order to give currency to his claims and bolster his claims for protection. The Authority was not satisfied that the applicant was required to report to a civil office following his alleged release on 10 July 2012, and that he then did not do so, and that he was required to report every fortnight.

25. The Authority was not satisfied that SLA officers came to the applicant’s mother’s house looking for him, or that they continued to search for him and his brothers. The Authority referred to having accepted that there was an incident in May 2011. Having rejected the applicant’s claimed detention in June 2012, the Authority found that the applicant was not a person of interest to the authorities after the May 2011 incident. The Authority noted that the applicant had not claimed that his brother X was, after rehabilitation, the subject of reporting and monitoring, or that he received any visits from the Sri Lankan authorities after his release from rehabilitation. 

26. The Authority considered it implausible that approximately 18 months after the May incident, and in the absence of any other interest in the applicant or his brother X, that either the SLA or the Criminal Investigation Department (“CID”) would come to his mother’s home inquiring after his or his brothers  whereabouts. The Authority found the applicant had fabricated these claims.

27. The Authority found that the applicant wasn’t detained or tortured in 2012 and that there were no further encounters with the authorities after May 2011. In those circumstances, the Authority was not satisfied that, since the applicant’s departure, the applicant’s wife had moved to her brother’s location because it was not safe for her to remain at a particular location.

28. The Authority was not satisfied that, at the time the applicant left Sri Lanka, the applicant was a person of interest to the authorities on the basis of his actual or imputed political opinions.  The Authority identified that the applicant came from the Northern Province, where he spent the majority of his life, and that this was an area formerly held by the LTTE. The Authority referred to the United Nations Commission for Refugees Guidelines of 2012, concluding that there was the potential for a need for protection for persons identified as having certain LTTE links, referring to family links and being involved in the supply and transport of goods for the LTTE. 

29. The Authority was not satisfied that the applicant is at risk on the basis of either his brother’s membership of the LTTE, or because he transported goods and people for the LTTE from March 2007 to December 2007. The Authority identified that it accepted that the brother was a member of the LTTE and underwent rehabilitation. The Authority also accepted that, whilst the applicant was at the IDP camp, he was questioned about his brother. 

30. The Authority referred to the applicant’s evidence that his brother now lives in another country. The Authority also referred to the applicant’s representative whom submitted that, on return, the fact that the brother X is no longer in the country may raise alarm bells. The Authority referred to the intensive screening programs that were conducted at IDP camps and that the details of all IDPs, including their family members, are on Government intelligence systems and available to any authorities. It was in these circumstances that the Authority accepted it was likely that the fact that the applicant has a brother who was in the LTTE and underwent rehabilitation will come to light upon his return. 

31. The Authority referred to DFAT country information as to the risks for those suspected of having a link with the LTTE. The Authority referred to having accepted that there have been such reports, but was not satisfied that the risk of harm to the applicant on this basis is more than remote. The Authority referred to the applicant’s brother X, having gone to another country in December 2012. The Authority noted that the applicant had not claimed that, after the IDP camp, he was ever questioned again about his brother X, nor did the applicant claim that his brother X left Sri Lanka unlawfully, or that he did so while under reporting conditions. It was in this context that the Authority found that the brother X left Sri Lanka lawfully. 

32. The Authority noted that, given this finding and the applicant’s own lack of profile on the evidence before the Authority, it was not satisfied that there was a real chance of serious harm to the applicant by the Sri Lankan authorities on the basis that his brother X was a former LTTE member. The Authority was not satisfied that, at the time the applicant left Sri Lanka, the applicant was of any interest to the authorities on the basis of his actual imputed links to the LTTE. The Authority was not satisfied the applicant is at risk of serious harm on the basis of his Tamil ethnicity. 

33. The Authority made reference to having accepted that the applicant’s brother was a member of the LTTE, and referred to DAFT country information and the possibility of monitoring. Taking into account the applicant’s circumstances overall and dealing with the available country information, the Authority was not satisfied the applicant is at risk of harm if he returned to Sri Lanka.

34. However, the Authority did accept that, on the basis of the country information, the applicant may be subject to monitoring. The Authority found that the applicant’s brother was not a high profile member of the LTTE and was not subject to reporting or monitoring at the time he left Sri Lanka. They found that the risk of the applicant being monitored on return was remote. The Authority did not accept that the authorities would otherwise have any ongoing interest in the applicant.

35. The Authority also rejected the applicant’s claim to have been detained and tortured in 2012 and found that the 2011 incident had no further repercussions for the applicant. 

36. Taking into account those matters and the lack of interest in the applicant since then, the Authority found that this indicates that the applicant was not, at the time he left, a person of interest to the authorities. The Authority was not satisfied that there was a real chance of serious harm to the applicant on the basis of his Tamil ethnicity, his coming from the Northern Province or his imputed political opinion. Further, the Authority was not satisfied that the applicant faces a real chance of harm on the basis of his Hindu religion. 

37. The Authority referred to the applicant’s illegal departure and being an asylum seeker. The Authority was not satisfied that the applicant faced a real chance of harm on return to Sri Lanka for reasons of being an illegal departee, a returned asylum seeker from a western country or due to his Tamil ethnicity.

38. The Authority found that the applicant did not meet the definition of refugee in s 5H(1) of the Act, and did not satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Act. Consequently, the Authority affirmed the decision under review. 

    BEFORE THE COURT

39. These proceedings were commenced on 3 April 2017.

40. Mr Hodges, the solicitor for the applicant, identified that he wished to rely on a single ground identified in his submissions filed on 3 June 2021. The Court granted leave for the applicant to rely upon that ground and to file an amended application on or before 23 June 2021 in respect of that ground. 

41. The kernel of Mr Hodges’ argument was that the finding by the Authority that the applicant’s brother X had left Sri Lanka lawfully was legally unreasonable, and that this was a critical factor underpinning the adverse findings made by the Authority in respect of the convention criteria and in relation to complementary protection.

42. The written submissions and oral submissions identified the significance of the brother X and the role that he had played and the applicant’s claims in relation to the brother X. The submissions focused in particular on the finding that the brother had left lawfully, made at paragraph 39 of the Authority’s decision. The submissions contended that it was not open to the Authority to infer that the brother had departed lawfully, that there was no probative evidence that he departed lawfully, and that this was, accordingly, a legally unreasonable finding. Mr Hodges also advanced submissions as to the materiality of the finding. 

1. Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person in need of protection and to provide sufficient evidence to establish the claim. In the circumstances where the applicant was aware of the location of his brother X, it was for the applicant to advance evidence supporting his claims in respect of an alleged fear arising from the role of his brother. In the absence of evidence from the applicant contending that his brother had been subjected to reporting conditions following his release from an IDP camp, it was clearly open to the Authority to make the finding that it did in that regard. The other relevant consideration on the evidence by the Authority was the fact that the applicant was not questioned ever again about S after the IDP camp. This was a logical and rational basis together with the absence of any claim that the brother was subject to reporting conditions when the brother left to support the adverse finding that the brother left lawfully. The absence of evidence that the brother left unlawfully was a further logic and rational basis to support the adverse finding made by the Tribunal.

2. In the absence of evidence from the applicant as to his brother’s unlawful departure from Sri Lanka, it was logical, rational and open to the Authority to make an adverse finding that the brother X had departed lawfully. In its reasons, the Authority referred to the applicant being of no interest after his release from the IDP camp, the absence of ongoing interest in him after the incident in 2011, the absence of claims after his release from the IDP camp about his brother X, and the absence of evidence asserting that his brother was the subject of reporting conditions at the time he left Sri Lanka or had left illegally. In these circumstances, the adverse finding that the brother X had left Sri Lanka lawfully was open to the Authority.

3. The Court does not accept that the finding, that the brother departed Sri Lanka lawfully, lacks an evident and intelligible justification. The applicant, being in a position to identify the country where his brother resided, was patently in a position to identify any other facts or circumstances that might advance his claim. This includes any other evidence concerning his fear to harm arising from what had happened to his brother X, or his brother’s ongoing reporting at the time of departure, or his brother’s departure. The absence of such evidence from the applicant together with the absence of ongoing questioning of the applicant about his brother were relevant probative basis for the Authority to take into account in making the adverse finding. Taken together with the absence of evidence that the brother left illegally the adverse finding had a rational probative basis on the material before the Authority and was open to the Authority.

4. The Court does not accept that the adverse finding that the brother left lawfully was legally unreasonable. The Court would otherwise have accepted Mr Hodges’ submission that the finding in that regard was material if it had, in fact, been legally unreasonable. 

5. For these reasons, the amended application must be dismissed.  

I certify that the preceding forty-seven (47) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 June 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       22 September 2021