BWN17 v Minister for Immigration

[2020] FCCA 1383

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWN17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1383

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority gave proper consideration to the applicant’s claims and/or fear of harm – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5H, 5J, 36, 476

Applicant: BWN17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 236 of 2017

Judgment of: Judge Street

Hearing date: 29 May 2020

Date of Last Submission: 29 May 2020

Delivered at: Sydney

Delivered on: 9 June 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Mr A Gerrard, Australian Government Solicitor, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 236 of 2017

BWN17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. 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”), made on 5 April 2017, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Temporary Protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. 

3. The applicant arrived in Australia as an unauthorised maritime arrival on 14 November 2012. 

4. The applicant was found to be a Tamil from a particular location who moved, during the civil war, to Batticaloa in the Eastern Province, to live with his sister. The applicant’s parents died in his home region in 1996, and from 2004 to 2008 he worked in Dubai.

5. The applicant claimed that he and his brother-in-law supported the Tamil National Alliance (“TNA”) in the local elections in 2008.  In 2009, the applicant alleged that in 2009, the army conducted round up exercises and that he was assaulted by army soldiers and that he was stopped at an army checkpoint and had to wait all day.

6. The applicant alleged that in 2011, greasemen attacked women in the local area and the applicant was concerned for the safety of his sister and people in general. The applicant claimed that he did not actually witness the attack in the first incident, but came across a crowd of people who were attending to the victim.

7. The applicant alleged he saw a second incident in which it was alleged a cutting of abreast and that he did not try and stop the attack and that no one tried to stop the greasemen. The applicant alleged that he was questioned by the army after this and struck in the face. 

8. The applicant alleged that he assisted a TNA candidate in 2012 and was harassed by people from the opposing political parties, named the Pillayan and Karuna groups.

9. The applicant alleged that there was an incident in which people came to the home in which he lived with his sister and brother‑in‑law, and asked for him. The applicant alleged that the home was attacked, his brother‑in‑law was assaulted and they threatened to kill the applicant. The applicant alleged that he reported the incident to the police and the Human Rights Commission, but has not heard anything further.  The applicant alleged that he was fearful of his safety and went to stay with a friend until he left Sri Lanka in October 2012.

10. The applicant provided an undated letter in relation to him being a supporter since 2011 and involved in the 2012 election campaign. 

11. The applicant alleged that two weeks after he departed Sri Lanka people came to the house to ask about his whereabouts.

12. The applicant claimed to fear harm by reason of his support for the TNA and being imputed as aligned with the Liberation Tigers of Tamil Eelam (“the LTTE”). The applicant also claimed to fear harm by reason of being a failed asylum seeker who departed Sri Lanka illegally.

13. On 5 October 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Temporary Protection visa. On 7 October 2016, the Authority wrote to the applicant explaining that the application for the Temporary Protection visa had been referred to the Authority for review. The letter provided an attached factsheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions.

14. No further material was provided to the Authority and the Authority obtained updated Department of Foreign Affairs and Trade (“DFAT”) country information and was satisfied that there were exceptional circumstances to justify considering the same. 

15. The Authority summarised the applicant’s claims and set out the relevant law, including the applicable law incorporated by pagination in the Authority’s reasons.

16. The Authority accepted that the applicant moved to Batticaloa in 1996 and that his parents died at this time and his brother went missing. 

17. The Authority accepted that the applicant provided low level support to the TNA in the 2008 and 2012 elections. The Authority did not accept the applicant’s description of himself as a “fulltime” supporter or a member of the TNA, and found that the applicant had only provided support to the TNA at night and that the support that the applicant provided was limited to putting up posters and helping to set up the stage for events. The Authority found that the applicant was not campaigning or making public statements. The Authority was not satisfied that the applicant has a profile that would have attracted the level of targeted attention claimed by the applicant. The Authority was not satisfied that the applicant’s role in assisting the TNA would give rise to him being targeted by members of the opposing party, visiting his home to search for him, or apprehending and beating him on the way home from work and keeping him under surveillance.

18. The Authority found that the support provided by the applicant was similar to that of his brother‑in‑law and that his brother‑in‑law was not targeted by these people. It was in these circumstances that the Authority did not accept that there is any real distinction between the roles performed by the applicant and his brother‑in‑law and found they both performed the same function for the TNA.

19. The Authority was not satisfied that the applicant’s account was a genuine recount of events in relation to the claimed alleged threats to kill him and keep him under surveillance. Given the applicant’s low profile, the Authority found that there was no apparent reason why there would have been such a level of interest that someone was watching the applicant’s movements.

20. The Authority accepted as plausible that the applicant gave support to the TNA and while doing so may have been harassed. The Authority gave weight to the low level of support the applicant gave to the TNA in the elections and was not satisfied that, as a result of this, people came to his home and ransacked the house, assaulted his brother‑in‑law and that they threatened to harm the applicant, or that they later apprehended and beat the applicant and kept him under surveillance. The Authority did not accept that the applicant went into hiding by staying with a friend.  The Authority also did not accept that people came to the applicant’s home to inquire about the applicant after his departure from Sri Lanka.

21. The Authority did not accept that, on return to Sri Lanka, the applicant would be harmed because he would be identified as a TNA supporter and, by association, an LTTE supporter. The Authority did not accept that the applicant would face harm should he become involved with the TNA, or politics in general, on return to Sri Lanka.

22. The Authority was not satisfied that there is a real chance the applicant would face serious harm on the basis of his role in the 2008 and 2012 elections or if he were to become politically active on return to Sri Lanka.

23. The Authority was not satisfied the applicant witnessed any attack by the greasemen. The Authority was not convinced that the applicant was providing information from his own personal experiences of witnessing greasemen attacks. The Authority did not accept the applicant’s claims in relation to having witnessed greasemen attacks.

24. The Authority was not satisfied that there is a real chance the applicant would experience harm on return to Sri Lanka for reasons of his Tamil ethnicity. 

25. The Authority referred to discrimination feared by the applicant, as well as arrest and detention. The Authority found that the applicant does not have a well-founded fear of persecution should he return to Sri Lanka.

26. The Authority did not accept that the applicant’s TNA association would impute him as being an LTTE supporter, and noted that the applicant had not been involved in any other activities that, upon country information, indicates that he would be the cause of concern for the Sri Lankan authorities or result in discrimination or harm from the authorities. The Authority did not accept the applicant would be imputed with an LTTE profile. 

27. The Authority accepted that the applicant would be identified as a failed asylum seeker who departed Sri Lanka illegally. The Authority found that the applicant may be detained and questioned at the airport for up to 24 hours, and be fined for breaching the Sri Lankan Immigrants and Emigrants Act 1949, and may be held in prison for a period of time.  The Authority did not consider the brief period of detention would constitute the necessary level of threat to the applicant’s life or liberty, or to significant physical harassment, or ill treatment, so as to otherwise amount to serious harm for the applicant.

28. The Authority did not accept the likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine under the Immigrants and Emigrants Act, would amount to serious harm or meet the requirements of s 5J(5) of the Act. The Authority found the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act would be the result of a law of general application and does not amount to persecution for the purposes of ss 5H(1) and 5J(1) of the Act.

29. The Authority was not satisfied that there is a real chance the applicant would face any harm as a returning failed asylum seeker. 

30. The Authority found that the applicant did not meet the definition of “refugee” in s 5H(1) of the Act and found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

31. 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 that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

32. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 1 May 2017.  On 5 July 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that he could not go back to Sri Lanka and that what he had told the Authority was what had occurred.

4. The Authority, on the face of its reasons, had a genuine intellectual engagement with the applicant’s claims and the evidence, and made dispositive findings in respect of the whole of the applicant’s claims. Those findings were open for the reasons given by the Authority, as summarised above. 

5. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error. In substance, the applicant’s submissions from the bar table invite impermissible merits review.

6. The grounds in the application are as follows:

   1. The delegate has refused to accept the incidents, as outlined by me, that have led me to have a "well-founder fear of persecution" if I return to Sri Lanka - without accepting that this fear is real to me.

   2. She has not provided evidence that the incidents "did not occur" other than what she "believes" did not take place.

   3. Her decision is based on country and other general information rather than my specific circumstances that leads me to have a "well-founder fear of persecution" if I return to Sri Lanka.

7. The Court explained to the applicant that it would treat the grounds as referring to the Authority, and not the Delegate, and this is consistent with para 5 of the applicant’s affidavit that referred to an alleged jurisdictional error particularising the three grounds found in the application. The Court explained to the applicant that an error by the Delegate could not give rise to jurisdictional error by the Authority.

Ground 1

1. Insofar as ground 1 reflects a disagreement with the Authority’s findings in respect of the incidents the applicant claims occurred, the Authority gave logical and rational reasons, as summarised above, for the adverse findings. Those reasons included the low level of the support involved by the applicant in the elections, and the absence of information to suggest that the applicant was recounting his own personal experiences in relation to the greasemen, and the overlap of functions performed in the election support by the applicant’s brother‑in‑law who continued to live in Sri Lanka openly, and the implausibility of the alleged threats advanced by the applicant.

2. Further, the Authority was not required to accept, uncritically, the applicant’s claims and was entitled to evaluate the same and it was for the applicant, pursuant to s 5AAA of the Act, to provide sufficient evidence to establish his claims. 

3. Accordingly, no jurisdictional error arises by reason of ground 1.

Ground 2

1. Ground 2 is, in substance, again a disagreement with the adverse credibility findings and, for the reasons already given, those adverse findings were open. For the reasons summarised above, those adverse findings cannot be said to lack an evident and intelligible justification. 

2. No jurisdictional error arises by reason of the ground 2.

Ground 3

1. In relation to ground 3, this appears to be disagreement with the country information accepted by the Authority.

2. It was a matter for the Authority what country information to accept and what weight to give to country information. The reliance upon the DFAT country information was the most recent information available and was a logical, probative and cogent matter for the Authority to take into account. In substance, ground 3, similar to ground 1 and ground 2, invites impermissible merits review. 

3. No jurisdictional error is made out by ground 3.

4. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 9 June 2020