BLJ19 v Minister for Immigration - [2019] FCCA 3237

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLJ19 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3237

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well founded – whether the Authority gave lawful consideration to the 2012 UNHCR Guidelines considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 473CC, 476

Cases cited:

AFK16 v Minister for Immigration & Anor (No.2) [2017] FCCA 1827

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593

DCC17 v Minister for Immigration [2019] FCA 1403

DCH16 v Minister for Immigration & Anor [2017] FCCA 294

NAHI v Minister for Immigration [2004] FCAFC 10

SZLOP v Minister for Immigration [2008] FCA 1074

Applicant:

BLJ19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 866 of 2019

Judgment of:

Judge Driver

Hearing date:

11 November 2019

Delivered at:

Sydney

Delivered on:

11 November 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

DLA Piper

ORDERS

The application filed on 8 April 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 866 of 2019

BLJ19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 20 March 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are helpfully set out in the Minister’s outline of submissions.
The Authority’s decision was made pursuant to s.473CC of the Migration Act 1958 (Cth) (Migration Act). This Court has jurisdiction to hear the application under s.476(1) of the Migration Act because the decision is a “migration decision” within the meaning of s.5(1).[1]
[1] DCH16 v Minister for Immigration & Anor [2017] FCCA 294 at [70]; AFK16 v Minister for Immigration & Anor (No.2) [2017] FCCA 1827.
The applicant is a citizen of Sri Lanka who arrived in Australia on 13 November 2012 by boat as an unauthorised maritime arrival (UMA). It is not contentious that the applicant met the requirements of the definition of a “fast track applicant” in s.5(1)(a)(i)-(iii) of the Migration Act and therefore his application is governed by Part 7AA of the Migration Act.
On 14 January 2013, the applicant attended an entry interview. At that interview, he claimed that his life was threatened by the Karuna and Pilayan groups for reason of working and campaigning for the United National Party (UNP). The armed groups came to his home with rifles and threatened to kill him but he managed to escape.
Further, the applicant claimed that he was forcefully recruited as a member of the Liberation Tigers of Tamil Eelam (LTTE) and that he received basic but not war training. In 1999, he managed to escape and surrendered to the police; however, he was subsequently tortured until he was taken in by the International Committee of the Red Cross.[2]
[2] Court Book (CB) 14-15.
On 29 August 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV) on the basis of the following claims:[3]
a)the applicant is a Tamil Hindu from the east of Sri Lanka and in July 1998 was forcibly recruited by the LTTE as a 15 year old. After his three month training, he was ordered to fight but refused and so was sent to be a cook. In around July 2009, the applicant managed to escape and surrendered to the Criminal Investigation Department (CID). However, the CID thought he came as a spy and extensively tortured him. After realising that the applicant was in fact surrendering, the CID handed him over to the Red Cross but not before warning him that if he told anyone he had been tortured that he would be punished;
b)in March 2000, the applicant was released from rehabilitation and was asked to report to the Sri Lankan Army (SLA) each week. However, each time he would present himself he would be assaulted and so in April 2006, he fled to Qatar. The applicant returned to Sri Lanka in 2009 after the civil war but soon realised the Karuna and Pilayan groups were looking for former LTTE cadres to join. He was forced to flee again and this time, in August 2010, he went to Saudi Arabia. In December 2011, the applicant was required to return to Sri Lanka to obtain treatment for his severe back pain. He remained in hiding as the armed groups continued to attempt to recruit him; and
c)the applicant during the September 2012 provincial elections supported the UNP who were in conflict with the Karuna and Pilayan groups. After the UNP lost the election, the armed groups searched for the applicant to punish him and bombed his uncle’s home after seeing him there. Fortunately, no one was in the house at that time. Accordingly, the applicant made arrangements to flee Sri Lanka. He does not consider that the authorities would protect him or that he would be able to relocate to another part of Sri Lanka.
[3] CB 89-92.
On 5 December 2018, the delegate made a decision to refuse to grant the applicant the visa and so the matter was referred to the Authority for review.[4]
[4] CB 152-166.
On 22 December 2018, the applicant submitted to the Authority a statutory declaration,[5] written submissions[6] and various country information.[7] The applicant raised the following relevant new claims:
a)the applicant did not divulge the full extent of his LTTE involvement due to his fear of being deported, the information being made known to the Sri Lankan authorities and on the advice of fellow detainees. He was not in fact only a cook but also an LTTE cadre who assisted with defence line duties preventing the SLA encroaching on LTTE controlled areas; and
b)the applicant gave further detail in relation to his time with the LTTE, including a failed escape attempt, his training and commanders he served under and the fight he was involved in. He also elaborated on his surrender and the torture he was subject to from the CID, his subsequent release to the Red Cross and reporting to the Special Task Force (STF).
[5] CB 184-190.
[6] CB 191-195.
[7] CB 196-549.

Authority’s decision

The applicant’s sole ground of review is narrow and discrete: it takes issue with the Authority’s findings in relation to his claim to fear harm on the basis of his involvement with the LTTE and, specifically, with the consideration of the UNHCR 2012 Guidelines. It is therefore unnecessary to summarise most of the Authority’s decision, which is not challenged, save for the aspects of the Authority’s reasons relevant to the issue raised by the ground of review.
In relation to the additional detail in the applicant’s statutory declaration to the Authority regarding his involvement with the LTTE and surrender, the Authority was satisfied it was capable of being believed and may have affected the delegate’s consideration in circumstances where the nature of the applicant’s duties was important in assessing his profile. Further, it accepted he withheld information for fear of being viewed as a security concern. In those circumstances, the Authority was satisfied there were exceptional circumstances to consider the new information raised in the statutory declaration.[8]
[8] [5].
However, the Authority noted the applicant raised a new claim in his submissions, namely, that his family was associated with the LTTE. In circumstances where it had not been mentioned elsewhere, the Authority was not satisfied there were exceptional circumstances to consider it.[9]
[9] [12].
The Authority considered the applicant’s evidence regarding his experience of forced recruitment, training, and escape to be convincing and credible. Although it had concerns by the fact he only first mentioned the claim of being an LTTE cadre in his SHEV application only to retract it the SHEV interview and reinstate it upon review, the Authority was willing to accept that he was reluctant to admit his involvement due to his fear of being subject to an adverse security assessment and noted that it was not a claim which only arose “at the last minute”. The Authority accepted the applicant, on at least one occasion, engaged in combat as an LTTE cadre and that after he experienced the violence of war first hand he made efforts to escape and surrender.[10]
[10] [19].
On the basis of country information and the applicant's consistent account, the Authority was satisfied he was subject to torture by the police after his surrender.[11] Further, despite the discrepancies in the documentation, it was willing to accept he was sent to a rehabilitation centre in August 1999 and released in March 2000.[12] The Authority accepted the applicant was subject to weekly reporting requirements, and by reference to country information was satisfied he was mistreated by the SLA at those times.[13]
[11] [20].
[12] [26].
[13] [27].
However, it considered his reporting conditions ceased in October 2000 after he relocated to his aunt’s house on the basis that any breach would have come to the attention of the authorities.[14] Further, the Authority found that the applicant’s evidence of what occurred between October 2000 and April 2006 to be confusing and unconvincing.[15] Relevantly, it considered there was no evidence to show he had been approached by the LTTE after his surrender.[16]
[14] [27].
[15] [28].
[16] [29].
In consideration of the applicant’s claim that the person he escaped the LTTE with was now missing, the Authority accepted that there were a number of outstanding cases of enforced or involuntary disappearance in Sri Lanka. However, on the evidence before it, it was not satisfied that the person was such a missing person.[17]
[17] [41].
The Authority noted that country information had identified that those who are at risk of harm were individuals who are or are perceived to be a threat to the integrity of Sri Lanka or have a significant role in relation to post-conflict Tamil separatism. Further, it found that LTTE membership in and of itself did not necessarily warrant protection unless the person held a significant role. The Authority was satisfied that the applicant was not a high profile LTTE member and that there have been no consequences for him since his reporting requirements ceased in 2000. It was satisfied that the applicant had not engaged in any Tamil separatism or any other conduct which would be regarded as a threat to the state.[18]
[18] [46].
The Authority accepted that the applicant had been the subject of abuse from the LTTE and CID. However, it found that country information referring to these type of incidents reducing significantly over time and that there had been significant improvements in domestic security post the civil war. Further, it found that despite criticism regarding the current regime and the failure to repeal legislation which has a disproportionate impact on Tamils, the country information did report on a number of positive developments for Tamils and as well as government initiatives to address concerns.[19] In those circumstances, the Authority was not satisfied that the applicant would, as a Tamil male from the East with an LTTE history, face a real chance of any harm from the government or anyone else upon return to Sri Lanka.[20]
[19] [48].
[20] [49].

The present proceedings

These proceedings began with a show cause application filed on 8 April 2019. There is one particularised ground in it:
The IAA failed to consider the UNHCR Report 2012 when it found it was not satisfied that the Applicant as a Tamil male from the East with his LTTE history faces a real chance of any harm from the Sri Lankan government or anyone else in Sri Lanka in the reasonably foreseeable future, such report being a relevant matter to the finding, thereby committing a jurisdictional error. (paragraph 49)
Particulars
a.The IAA referred to the UNHCR report 2012 at page 6 f/n 2;
b.The IAA was willing to accept that the applicant did, on at least one occasion, engage in combat as a LTTE cadre. (para 19) This categorisation falls within the UNHCR category 2 of people (above) who may have a need for international refugee protection.
c.The UNHCR report 2012 report at page 27 noted Former LTTE combatants or "cadres" may need international refugee protection;
d.The IAA referred to the most recent DFAT [2018], UK Home Office and the US Department of State reports (at paragraph 46) and stated they: 'indicate that those who are at risk of serious or significant harm on return are individuals who have been participating in post-conflict separatism or renewal of hostilities within Sri Lanka or would be regarded as a threat to the state. The Applicant has not engaged in any Tamil separatism since the end of the civil war in Sri Lanka or Australia, nor has committed any criminal or terrorist acts or any other conduct that would be regarded as a threat to the state. The evidence does not suggest that the applicant's profile as a former forced LTTE child recruit who has received rehabilitation and monitoring almost 2 years ago suggests that he will be perceived as a person who is at risk of harm in Sri Lanka.'
e.The reports referred to did not indicate that the only people who are at risk of serious or significant harm on return are individuals who have been participating in post conflict separatism or renewal of hostilities within Sri Lanka or would be regarded as a threat to the state, and indeed the reports do not rule out the Applicant as a former combatant.
i. The DFAT report at 3.50 to 3.58;
ii. UK Home Office 2017 at 2.3.9 - 2.3.13
These are the grounds and particulars of my Court Application at this stage. I will provide further grounds and/or further particulars when the SHEV interview's transcript, Court book and Counsel Opinion have become available.
The application is supported by an affidavit filed with it, which I received. In that affidavit, the applicant explains his reasons for coming to court. It is apparent that the applicant wanted to obtain legal advice.
I also received into evidence the affidavit of Senthil Rajan Sinnarajah made on 15 October 2019. Mr Sinnarajah states that he was at that time acting for the applicant, although it does not appear that he filed a notice of appearance. In response to a query from my Associate, Mr Sinnarajah confirmed by email on 9 November 2019 that he was not, in fact, acting for the applicant. Attached to Mr Sinnarajah’s affidavit are written submissions he had prepared on behalf of the applicant and a copy of the UNHCR 2012 Guidelines.
I also have before me as evidence the court book filed on 5 July 2019.
I invited oral submissions from the applicant this morning. He referred to his problems in the past and particularly his fears of encountering harm at the hands of paramilitary groups. He places himself in a high-risk group of former LTTE combatants and cadres. He referred to the fact that he has a wife and child, who he has never seen, in Sri Lanka and asked rhetorically why he would not return home if his concerns were not genuine. He commented that his fears were exacerbated by the 2014 data breach. The thrust of his submissions was that conditions for persons in his position are not as benign as may have appeared to the Authority. His submissions went to the merits of the Authority’s decision. As I explained to him, however, those merits are beyond the scope of this proceeding.
To my mind, the Authority’s decision is a carefully reasoned one. Notwithstanding significant inconsistencies in accounts given by the applicant at various points, the Authority accepted the applicant’s explanation for those inconsistencies and accepted that his involvement with the LTTE was more extensive than he had originally claimed. Importantly, the Authority referred to the UNHCR 2012 Guidelines at [20] of its reasons,[21] and in that regard accepted that there were reports of widespread use of torture and ill treatment of Tamils in custody.
[21] CB 560.
The Authority considered the impact of events since the UNHCR 2012 Guidelines. I refer, in particular, to the Authority’s reasoning at [46] – [49]. In my view, it was open to the Authority to conclude, notwithstanding the UNHCR 2012 Guidelines, that more recent developments in Sri Lanka had reduced the risk to a point where the applicant did not face a well-founded fear of persecution or significant harm there.
I otherwise agree with the Minister’s submissions concerning the ground of review raised.
It is not in dispute that the UNHCR 2012 Guidelines (referred to by the applicant as the “UNHCR Report 2012”) was before the delegate and before the Authority. The Authority plainly considered the terms of the report as [20] indicates. It is also clear that the Authority had access to, and considered, a wide range of country information including much more recent information about the situation in Sri Lanka (by comparison with the UNHCR 2012 Guidelines). In that context, the applicant’s ground, and the alleged error that it identifies, is misconceived for a number of reasons.
First, it is important to note certain features of the UNHCR 2012 Guidelines. They set out the position as at 21 December 2012 and should be read accordingly, particularly bearing in mind the later country information available to a decision-maker. The UNHCR 2012 Guidelines also do not purport to set out a definitive position; rather they identify links (as at 2012) which may give rise to a need for protection depending on the specifics of the individual case.[22] The identified links are also not definitive and the report notes that they “may include people with the following profiles”.[23] In other words, the matters relied on by the applicant are in the nature of conceptual guidance concerning factual matters that might assist a decision-maker, in each particular case, in his or her assessment of certain protection claims. These matters are not to be read as hard, inflexible, categories to be applied as a form of checklist or requirement. It is notable in that context that the Authority had regard to the UNHCR 2012 Guidelines in assessing, and accepting, the applicant’s historical claims about his treatment in 2000 and 2001 when he had self-evident links to the LTTE (the Authority having accepted that the applicant was, at least to a limited extent, an LTTE cadre).
[22] At page 27.
[23] At page 27, emphasis added.
Secondly, as a matter of principle the essence of the applicant’s challenge is to a finding of fact and an assessment of evidence made by the Authority and, in the present context, misplaced. It is uncontentious that a decision-maker’s assessment of evidence and conclusions drawn from such evidence is not readily or lightly disturbed given this Court’s limited role on judicial review. In that regard, the absence of reference to particular material or evidence does not, of itself, suggest error or form an appropriate basis for a finding of jurisdictional error, particularly where that material may lead simply to a different finding of fact.[24] More specifically, it is also well-established that the weight to be given to, and the assessment to be made of, country information (and whether to consider to such information) is a matter within the purview of the fact-finding functions of the decision-maker.[25] The Authority was not obliged to identify why it disregarded certain country information.[26]
[24] Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at 604.
[25] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]; DCC17 v Minister for Immigration [2019] FCA 1403 at [19].
[26] SZLOP v Minister for Immigration [2008] FCA 1074 at [29]-[31].

Thirdly, a precise examination of the Authority’s reasons indicates that it properly considered the applicant’s claim, the evidence relating to that claim and the country information applicable to the claim. As noted above, it is not in dispute that the Authority accepted that the applicant was an LTTE cadre. In that regard, the applicant’s factual claims in respect of the LTTE were limited to a period around 2000 and 2001 and the applicant’s subsequent time spent in a rehabilitation camp (which the Authority also accepted). The applicant’s later claims focused on alleged adverse attention from militia groups, notably the Karuna group. The Authority made a series of factual findings none of which are challenged by the applicant, including in respect of the LTTE’s interest in the applicant (the Authority declining to accept that the applicant was of any interest to the LTTE or that he would have a profile with others as a result).
It was in that context that the reasons at [45]-[49] of the decision need to be considered (and, in particular, [49] upon which the applicant places reliance). The Authority accepted that the applicant had had an historical involvement with the LTTE but was not satisfied that the applicant had any sort of profile that would lead him to be the subject of adverse interest now or in the reasonably foreseeable future. Given the Authority’s factual findings, it is implicit in the Authority’s analysis that the Authority considered that, despite the applicant having been an LTTE cadre, the subsequent events were such that the applicant was not at risk should he return to Sri Lanka. That reasoning is consistent with the way in which the UNHCR 2012 Guidelines are framed. Relevantly, subsequent events, and reliance on more recent country information, were such that the Authority was not satisfied the LTTE links, of themselves (or, indeed Tamil ethnicity) were such as to support a finding that the applicant was at risk of serious harm. Later country information suggested that it was high profile individuals perceived to be advocating for Tamil separatism that were at risk. In that context, the Authority’s conclusion at [49] was entirely explicable without the need for any reference to the UNHCR 2012 Guidelines. The Authority did what it was supposed to do: assess the totality of information against the applicant’s actual claims.
The applicant’s appeal to “relevance” is, in reality, a plea for merits review. The Authority was entitled to focus on the country information that it found to be probative. It assessed the applicant by reference to its factual finding that the applicant was, albeit for a short period, an LTTE cadre. Nothing turns on lack of express reference to the UNHCR 2012 Guidelines in its reasons in this context. No jurisdictional error arises.

Conclusion

I conclude that the applicant is unable to establish any jurisdictional error in the decision of the Authority. The decision is therefore a privative clause decision and the application must be dismissed and I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs. The amount sought by the Minister is $7,000, which is below scale. The applicant asked about the possibility of time to pay, but did not oppose a costs order in principle.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 13 November 2019