Bqi18 v Minister for Immigration
[2020] FCCA 370
•24 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQI18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 370 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a XD – 785 Temporary Protection visa – whether the Authority misapplied the relevant law – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476 |
| Applicant: | BQI18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 891 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 24 February 2020 |
| Date of Last Submission: | 24 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Oliver Richard Jones |
| Solicitors for the Applicant: | Direct Access |
| Solicitors for the Respondents: | Ms B Rayment Sparke Helmore |
ORDERS
The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
Leave is granted to the applicant to rely on the amended application filed 27 July 2018.
The amended application is dismissed.
The applicant pay the first respondent’s further costs fixed in the amount of $6,500.00.
DATE OF ORDER: 24 February 2020
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 891 of 2018
| BQI18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 8 March 2018 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a XD – 785 Temporary Protection visa (“Protection visa”).
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be of Tamil ethnicity. The applicant was found to be of the Catholic religion. The applicant was found to have come from a village in the Northern Province of Sri Lanka.
On 20 December 2016, the applicant applied for a Protection visa.
The applicant claimed that he had had spent times in refugee camps in India.
The applicant claimed that he had worked as a fisherman in a fishing business which employed approximately 30 people. The applicant claimed that he was regularly harassed by the Sri Lankan navy. The applicant claimed that he was not able to regularly go fishing due to permanent restrictions and delays and because of suspected Liberation Tigers of Tamil Eelam (“LTTE”) support. The applicant claimed that he then ran a business transporting fish to Colombo.
The applicant claimed that, in June 2006, there was an incident involving the Sri Lankan navy as a result of which the applicant alleged he was injured. The applicant claimed that, in January 2007, the applicant and his younger brother were stopped by the navy when they were fishing, accused of being LTTE supporters, allegedly beaten and thrown in the water and that the applicant’s brother drowned.
The applicant claimed that he stopped fishing and started a business transporting goods by boat between particular locations, which included goods in the nature of fuel, batteries, clothes, food and groceries for the LTTE. The applicant alleged that, in February 2007, two his cousins who were working for him were kidnapped by armed men in a white van. The applicant claimed that he believed his cousins were abducted by people looking for him. The applicant claimed that, between 2007 and 2013, a number of people went missing from his village.
The applicant claimed that he was actively involved in the Tamil National Alliance (“TNA”). The applicant claimed that he was treasurer of the Fisherman’s Union of a particular location. The applicant claimed that he supported candidates at local and national elections. The applicant claimed that, following local elections in 2011, six TNA supporters from his village were arrested and detained for two years by the Criminal Investigation Department (“CID”) accused of being supporters of the LTTE.
The applicant claimed that he was unable to carry on his livelihood as a driver and labourer transporting fish due to restrictions on fishing and discriminatory policies.
The applicant claimed that, in April 2012, he received a phone call which he believed was from Sri Lankan armed forces, threatening that if he did not pay a sum of money he would be accused of being an LTTE supporter, abducted and killed. The applicant claimed that he was targeted because of his Tamil ethnicity, his origin from the north and because of his support for the TNA. The applicant claimed that he received more calls and was again threatened.
The applicant claimed that, in July 2012, two armed men came to his home and threatened his wife and son. The applicant also claimed that, after he left to Australia, a white van had been parked near his house and armed men had inquired about him. The applicant claimed that, in August 2012, his younger brother was abducted by men in a white van.
The applicant claimed that he fears arrest, detention, harassment, torture and death at the hands of Sri Lankan authorities due to his ethnicity, area of origin and imputed profile as a supporter of the LTTE. The applicant also claimed to fear harm as a failed asylum seeker.
On 11 May 2017, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.
On 17 May 2017, the Authority wrote to the applicant explaining that his application for a Protection visa had been referred to the Authority for review. The Authority attached to that letter a fact sheet and practice direction which provided the applicant an opportunity to put on new information and submissions. The applicant put on submissions in a statutory declaration which were taken into account by the Authority in its reasons.
The Authority in its reasons identified the background to the applicant’s Protection visa application. The Authority referred to having regard to the material provided by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims.
The Authority referred to the applicant having a fishing license, which appeared to have been issued in the second half of 2009, and the applicant’s consistent claims to be a fisherman and to have owned his own business both fishing and transporting goods. The Authority accepted that the applicant worked as a fisherman in Sri Lanka. The Authority accepted that he held positions in the Fisherman’s Union.
The Authority referred to the applicant’s claims regarding restrictions on his ability to fish. The Authority referred to the applicant’s claims he had a business employing approximately 30 people and that, when he had problems fishing because of the navy, he then had a transport business. The Authority referred to the applicant’s claim to have been harassed by the navy and that he was unable to regularly go fishing due to permit restrictions and delays. The Authority referred to the applicant referring to his Protection visa interview and having referred to all fisherman in his home area being stopped for fishing in 2007 because the navy were unable to distinguish LTTE boats from fishing boats, so they would not always have permission to fish. The Authority referred to the applicant describing an incident that had occurred when he was intercepted in 2007. The Authority referred to the applicant claiming that Sinhalese fishermen had taken over the fishing rights of the local Tamil fishermen which caused loss to his livelihood.
The Authority accepted that the applicant faced restrictions on his ability to engage in fishing. The Authority, after referring to the applicant’s evidence that he had a transport business up until the time he left Sri Lanka, did not accept that the restrictions had resulted in the applicant losing his livelihood in a broader sense or been unable to support his family. The Authority also took into account that the applicant had transported goods for the LTTE as claimed.
The Authority referred to the alleged incident involving the applicant in January 2007. The Authority accepted that the applicant and his brother were thrown into the sea and that his brother drowned. The Authority did not accept that the applicant was taken onto the boat and interrogated and beaten. The Authority was not satisfied that the navy targeted the applicant and his brother because of any particular interest in them personally or that this incident has led to any sort of ongoing interest in the applicant.
The Authority referred to the applicant’s claims concerning his cousins. The Authority referred to the different claims by the applicant in that regard. The Authority found it implausible that, if this incident were connected to the applicant, the persons responsible would wait a further five years to take action against him. The Authority was not satisfied that the abduction of the applicant’s cousins had any connection to the applicant or that applicant’s the cousins worked for the applicant.
The Authority was willing to accept that a third cousin of the applicant disappeared in his village. The Authority did not accept, however, that any of these abductions related to the applicant or led to any harm or interest in the applicant.
The Authority accepted that the applicant supported the TNA as claimed. The Authority was willing to accept that some TNA supporters were arrested. The Authority was not satisfied, however, that the applicant was harmed or faced any sort of adverse interest because of his support for the TNA.
The Authority referred to the applicant’s claim concerning threatening phone calls in 2012. The Authority identified logical and rational reasons for finding the applicant’s claims to be problematic in this regard. The Authority found there to be significant inconsistencies and omissions in the applicant’s evidence. The Authority found the applicant’s claims to be implausible in this regard.
The Authority was willing to accept that the applicant may have received demands for money but did not accept that this had any connection with the applicant’s political activities or support for the LTTE or that the applicant was denied protection by the police. The Authority also referred to the period of time lapsing between phone calls and the applicant’s departure from Sri Lanka. The Authority did not accept that the persons making the demands had any serious intention to harm the applicant or that they had any other interest in him besides an intention to obtain money. The Authority did not accept that the applicant was being searched for by the authorities, armed persons or anyone else at the time of or following his departure from Sri Lanka.
The Authority referred to the applicant’s claims concerning his brother being detained in August 2012. The Authority was not satisfied that this had any connection to the applicant.
The Authority identified documents provided by the applicant in respect of alleged complaints. The Authority identified that they concerned different incidents which the applicant had not mentioned. The Authority was not satisfied that such events had occurred.
The Authority took into account that the applicant consistently claimed that he departed Sri Lanka on his own passport. The Authority was not satisfied that the applicant was a person of any adverse interest to the Sri Lankan authorities or any other persons at the time of his departure from Sri Lanka, whether in relation to the events he had experienced in the past, his assistance to the LTTE, support for the TNA or any other reason.
The Authority found the applicant’s support for the LTTE to have been at a very low level. The Authority did not accept that the applicant’s support for the LTTE had led to any adverse attention in the applicant. The Authority found it remote that the applicant would be identified as being of adverse interest and harmed in the reasonably foreseeable future because of the low level support that he provided to the LTTE between 2007 and 2008.
The Authority did not accept that the applicant had experienced any harm in the past because of his involvement with the TNA. The Authority was not satisfied that supporters of the TNA are generally imputed as supporting the LTTE or being against the government. The Authority found the chance of the applicant being harmed in the future because of his past or any future activities in support of the TNA to be remote.
The Authority was not satisfied that there is a risk of the applicant being harmed because of his actual or suspected LTTE connections or support or because of his involvement with the TNA.
The Authority considered whether the applicant faced a real chance of harm because of his Catholic religion, Tamil ethnicity and as a Tamil fisherman from the north. The Authority referred to country information in that regard.
The Authority referred to having accepted that the applicant had previously faced limitations or restrictions on his ability to fish. The Authority referred to this being largely during the war. The Authority also referred to the applicant’s claims of a settlement of fisherman from the south taking over fish rights in his home village.
The Authority referred to country information that there continue to be challenges affecting local fishermen in the applicant’s home region, both related to poaching by Indian fisherman but also conflict with fishermen from the south who are advantaged in terms of their resources. The Authority also referred to country information referring to an alleged attack by the navy on fisherman that had occurred.
The Authority accepted that the applicant may experience some difficulty communicating with officials, societal discrimination and that the applicant would be subject to occasional monitoring and may face limitations on fishing. The Authority was not satisfied, however, that the applicant has faced a level of discrimination or restrictions in the past that would amount to persecution.
The Authority noted that the applicant had not described any significant level of discrimination or monitoring. The Authority referred in summary to the fact that the applicant was able to adapt to the difficulties in fishing by expanding his business to other activities such as transportation and, on the applicant’s evidence, that he transported fish to Colombo despite not being able to speak Sinhalese. The Authority also referred to the applicant working in Australia.
The Authority did not accept that there was anything other than a remote prospect of the applicant experiencing discrimination, monitoring restrictions on his ability to earn a livelihood and/or other harm either on account of his ethnicity or as a fisherman at a level that would amount to persecution.
The Authority was not satisfied that the chance of the applicant being harmed in the reasonably foreseeable future on account of his religion is anything but remote.
The Authority was not satisfied that there is anything but a remote chance that the applicant would face any harm because of his failure to meet past demands in respect of the request for money or that he would again experience demands in the future, even if he were perceived to have money.
The Authority was not satisfied on the evidence that the applicant has been involved in any activities in either India or Australia that would have been of any interest or considered adverse.
The Authority found that any screening or investigation conducted on the applicant’s return would quickly identify him as a person of no interest. The Authority was not satisfied that there is any real chance that the applicant would be harmed during that process, further detained or subsequently harmed in the reasonably foreseeable future.
The Authority did not accept that the applicant would be accused of having departed Sri Lanka illegally in circumstances where the applicant’s evidence was he departed Sri Lanka via the airport on his own passport.
The Authority found that there was not a real chance of the applicant experiencing harm in the reasonably foreseeable future beyond the discrimination, monitoring and limitations on his ability to fish which the Authority referred to. The Authority did not accept, however, that this harm amounts to persecution.
The Authority found that the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act. The Authority found that the applicant did not meet the requirements of the definition of refugee in 5H of the Act. The Authority found that the applicant did not meet the criteria in sub-s 36(a) of the Act.
The Authority found that 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. The Authority found that the applicant did not meet the criteria in sub-s 36(aa) of the Act.
Accordingly, the Authority affirmed the decision under review.
Ground in the Amended Application
The ground in the amended application is as follows:
1. The Immigration Assessment Authority (IAA) made jurisdictional error by contrary to Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) (2002) 216 CLR 473; 78 ALJR 180; 203 ALR 112 insisting or requiring the appellant to modify his conduct by refraining from engaging in his occupation as a fisherman (see para 13 of the Authority’s decision).
Mr Jones of counsel on behalf of the applicant referred to the Authority’s reasons at paragraph 13 and, in particular, paragraph 52. Mr Jones contended that there had been a finding falling within s 5J(3) of the Act concerning the applicant being able to modify his behaviour so as to avoid a real chance of persecution on return to Sri Lanka. Mr Jones also referred to what was said by the Authority at paragraph 51 of its reasons and what was said by the Delegate at page 260 of the Court Book that the applicant came from a fishing family. Mr Jones also referred to the findings made by the Authority at paragraphs 19 and 20 of its reasons.
Mr Jones submitted that, given the reference to the navy attacks, the Authority should have assessed whether the applicant being a fisherman was a characteristic fundamental to his identity, which he should not be required to renounce within sub-s 5J(c)(a) of the Act.
Mr Jones referred to the history of the applicant’s family as being fishermen and the applicant being active in a fishing organisation. Mr Jones submitted that the Authority had erred in its application of sub-s 5J(3)(a) of the Act. Mr Jones submitted that the applicant’s fishing background was fundamental to his identity within the meaning of sub-s 5J(3)(a) of the Act. Mr Jones also submitted that sub-s 5J(3)(c) of the Act did not limit the scope of sub-s 5J(3)(a) of the Act.
It is unnecessary to deal with the second submission as to the scope of sub-s 5J(3)(a) of the Act as the Court finds that this is not a case where the Authority made a finding that the applicant could not modify his behaviour so as to avoid a real chance of persecution. The Authority clearly identified the history in which the applicant identified experiencing difficulty from others as well as the earlier problems from the navy during the war. The reference in the Authority’s reasons at paragraph 52 to the applicant being able to adapt to difficulty should not be read with a keen eye for error. That is not a finding by the Authority that the applicant was able to modify his behaviour so as to avoid a real chance of persecution. Rather, it was a historical account of what had occurred in relation to the applicant’s activities moving from fishing to transportation.
No jurisdictional error of the kind alleged in ground 1 of the amended application is made out.
Accordingly, the amended application is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 24 February 2020 and the parties were provided sealed copies of the Court’s orders.
Associate:
Date: 10 March 2020
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