BLV18 v Minister for Immigration

[2020] FCCA 1778

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLV18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1778

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant generally believed but his fears found not to be well-founded – whether the Authority properly considered an element or integer of the applicant’s claims or gave sufficient reasons for it decision considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 473DD

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 256 FCR 593

Applicant: BLV18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 797 of 2018

Judgment of: Judge Driver

Hearing date: 1 July 2020

Delivered at: Sydney

Delivered on: 13 August 2020

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges of Hodges Legal

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application as amended in the applicant’s submissions filed on 16 June 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 797 of 2018

BLV18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 26 February 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a male Tamil and a citizen of Sri Lanka born in 1989.[1] He first arrived in Australia on 10 September 2012 as an unauthorised maritime arrival.[2] On 4 February 2016, he applied for the visa.[3]

   [1] Court Book (CB) 14

   [2] CB 363

   [3] CB 36-75

4. In support of his application, the applicant raised, among other things, the following matters:[4]

   a)the applicant’s brother was a sniper in the LTTE[5] from 2008 until the end of the war, when he disappeared;

   b)between 2006 and 2009, the applicant and his family lived in a northern district of Sri Lanka (home district). At the end of the war, in 2009, the applicant and his family lived in a refugee camp for about nine months;

   c)the applicant later obtained a job with “DRC World Vision” and had to travel between two other locations and Colombo. There were Army checkpoints, and the applicant would be harassed on a regular basis. On one occasion in early 2012, the applicant was detained by the Army and interrogated about his and his brother’s LTTE links. On another occasion, he was asked about his Tamil friends and assaulted with a stick;

   d)in August 2012, the applicant was arrested, detained for four days and tortured. The applicant was released on condition that he reported to the local Army camp, but he was warned by an interpreter that if he returned, he would be killed. The applicant fled Sri Lanka soon after;

   e)the applicant fears harm on return to Sri Lanka because he is a young male Tamil, because of his imputed support of the LTTE, for having departed Sri Lanka illegally, and for being a failed asylum seeker.

   [4] CB 76-107

   [5] Liberation Tigers of Tamil Eelam

5. On 19 May 2017, the delegate refused to grant the applicant the visa.[6] On 22 May 2017, the delegate’s decision was referred to the Authority for review.[7] On 26 February 2018, the Authority affirmed the delegate’s decision.[8]

   [6] CB 360-384

   [7] CB 387-388

   [8] CB 602-626

The Authority’s decision

1. The Authority commenced its reasons by discussing submissions and a range of “new information” provided by the applicant’s representative, and why it determined that the “new information” did not meet the requirements in s.473DD of the Migration Act 1958 (Cth) (Migration Act).[9]  The applicant does not take issue with this part of the Authority’s decision.

   [9] CB 603-608 [3]-[24]

2. The Authority accepted that the applicant was of Tamil ethnicity, the Hindu religion, and from a named location in the northern province.[10] It also accepted that the applicant and his family had experienced several incidences of displacement after 1998 and, towards the end of the civil war in 2009, lived in a camp.[11]

   [10] CB 609 [28]

   [11] CB 610 [29]-[30]

3. The Authority accepted that the applicant’s brother, K, had been missing since November 2008, and that the applicant’s family did not know what happened to him. The Authority did not accept that K was a member of the LTTE, but it accepted that K may have been suspected of being an LTTE member and that this was a plausible reason for K’s disappearance.[12]  The Authority also did not accept that the applicant worked for the LTTE in any capacity from 2008-2009, but did accept that while at school he had done things like attending propaganda meetings and had received medical and self-defence training.[13]

   [12] CB 611 [36]-[37]

   [13] CB 612 [41]-[42]

4. The Authority found that the applicant worked for DRC World Vision in 2011, but was not satisfied that the applicant undertook frequent travel to Colombo in that time, or suffered frequent harassment.[14]  It accepted that the applicant lived in Colombo between June and August 2012 and that he was questioned and harassed by the Sri Lankan authorities while travelling through checkpoints.[15] It further accepted that the applicant had been detained, beaten and questioned about his links to the LTTE, and found that this incident occurred in early 2012. The Authority did not accept that this incident was the catalyst for the applicant leaving Sri Lanka, or that at the time he departed, he was of interest to the authorities.[16]  It also did not accept that the applicant’s father had been beaten on three or four occasions in connection with the applicant.[17]  

   [14] CB 613-614 [49]

   [15] CB 614 [52]

   [16] CB 615 [58]

   [17] CB 616 [61]

5. The Authority found that the applicant’s detention and beating in 2012 appeared to be a one-off incident, and observed that he had been released with no further repercussions. It was not satisfied that there was a real chance that the applicant would suffer serious harm on return to Sri Lanka for reason of his age, gender, ethnicity, his brother, his previous detention and beating, or the fact that he is from an area formerly under LTTE control.[18]

   [18] CB 618 [67]

6. The Authority accepted that the applicant had departed Australia illegally and that the Sri Lankan authorities would infer he had claimed asylum in Australia.[19]  It also accepted that the applicant was likely to be arrested and charged under the Immigrants and Emigrants Act (Immigrants and Emigrants Act).[20]  It did not accept that the applicant would be subject to a prison sentence and found that the imposition of a fine would not amount to serious harm.[21]  The Authority found that the treatment of the applicant under the Immigrants and Emigrants Act did not amount to serious harm and would occur as the result of a law of general application.[22]  The Authority thus found that the applicant did not face a real chance of serious harm on the basis of being a returned asylum seeker or for having departed Sri Lanka illegally.[23]

   [19] CB 618 [68]

   [20] CB 619 [71]

   [21] CB 619 [72]-[73]

   [22] CB 620 [75]

   [23] CB 620 [76]

7. The Authority thus found that the applicant did not meet s.36(2)(a) of the Migration Act.[24]  The Authority also considered the complementary protection criteria but was not satisfied that the applicant faced a real risk of suffering significant harm on return to Sri Lanka.[25]  The Authority thus affirmed the delegate’s decision.

   [24] CB 620 [78]

   [25] CB 621 [81]-[84]

The current proceedings

1. These proceedings began with a show cause application filed on 23 March 2018.  That application contained two grounds.  The applicant’s submissions filed on 16 June 2020 abandoned the first ground and amended the second.  I gave leave at the trial on 1 July 2020 for the applicant to rely upon the application thus amended.  The ground as amended is:

   The Authority committed jurisdictional error by failing to provide reasons for rejecting and or failing to adequately consider an integer or component of the applicant’s claims. 

   PARTICULARS

   a.It is noted at paragraph 25 [CB608 - 609],that the applicant claimed he was detained and interrogated by armed forces on three occasions in 2012. The IAA accepted that at on some of those occasions, the applicant claimed the he was questioned in relation to his brother.

   At paragraph 57, [CB615], the Authority accepted that the applicant had been detained and beaten on one occasion in 2012.

   d The evidence includes reference to a continuing risk to persons in Sri Lanka [see CB375]. The UNHCR material relied on by the delegate and the IAA includes risk to family members of those suspected of  LTTE involvement [CB375 and 610].

   eThe IAA did not adequately engage with or consider the risk to the applicant due to his family link to his brother whom the IAA accepted was suspected of LTTE membership.

2. The only evidence I have before me is the court book filed on 12 June 2018. 

3. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial.

Consideration

1. The applicant contends that the Authority failed to give proper consideration to his claim of a fear of harm arising from his brother, K, who disappeared in 2008.  The applicant acknowledges that the Authority, at various points in its reasons, referred to the applicant’s brother and the claim arising from his disappearance.  However, the applicant maintains that the Authority failed to engage in an active intellectual process in dealing with the issue.

2. I prefer the Minister’s submissions on the ground of review as advanced.

3. No failure by the Authority to consider the applicant’s risk of harm on account of his brother, K, is established. The Authority expressly rejected the applicant’s claim that K was a member of the LTTE, but did observe (on the basis of country information) that K “may, as a young Tamil male in 2008, have been suspected of being [an LTTE member]”, and accepted this was a “plausible reason” for K’s disappearance in 2008.[26] Importantly, however, the Authority “[did] not accept that [the Applicant] would be imputed with any such involvement [with the LTTE] including on the basis of his missing brother”,[27] and rejected that there was a real chance or real risk of harm on the basis of his “family connection” or “relationship” with K.[28]  The Authority expressly stated that it was not satisfied that there was a real chance of harm on the basis of, among other things, “his brother”. [29]  Further, at [58],[30] the Authority did not accept that the applicant had been questioned about his brother when detained in early 2012, and did not accept that the applicant was, at the time he left Sri Lanka, of any interest to the Sri Lankan authorities.[31]

   [26] CB 611 [36]-[37]

   [27] CB 619 [70]

   [28] CB 621 [81]

   [29] see also CB 618 [67]

   [30] CB 615

   [31] see also at CB 618 [67]

4. Accordingly, the Authority did expressly consider, and reject, the applicant’s risk of harm on account of his relationship with his brother, K. Its findings were sufficiently broad to reject there being any risk of harm arising from that relationship, and there was no obligation on the Authority, or need, to reject in more specific terms the matters raised by the applicant in this ground, those matters being subsumed by findings of greater generality.[32]

   [32] see Applicant WAEE v Minister for Immigration (2003) 256 FCR 593 at [46]-[47]

5. Finally, the Authority did not fail to give reasons for why it did not accept that the applicant had been questioned about his brother while he was detained in early 2012.  I refer in particular to the Authority’s decision at [54]-[58], where the Authority explained that the applicant had given “inconsistent” evidence about his alleged detention in 2012, including that in his interview with the delegate, he failed to mention that he had been questioned about his brother or his brother’s links to the LTTE. The Authority explained, at the end of [58], that given the “omissions” and “inconsistencies” in the Applicant’s evidence, it was satisfied that he had “exaggerated and embellished the nature of the questioning he underwent”.

Conclusion

1. The applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  13 August 2020