CAP17 v Minister for Immigration

[2018] FCCA 1953

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1953

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority’s decision irrational, illogical or unreasonable.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 473CA, 473DD

Applicant: CAP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 436 of 2017

Judgment of: Judge Jarrett

Hearing date: 13 April 2018

Date of Last Submission: 13 April 2018

Delivered at: Brisbane

Delivered on: 19 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Barataraj, direct brief

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 21 November, 2017 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 436 of 2017

CAP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. For the purposes of the Migration Act 1958 (Cth) the applicant is an unauthorised maritime arrival.  He arrived in Australia by boat on 21 October, 2012.  On 7 January, 2016 he was invited by the first respondent to apply for either a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa.  On 18 May, 2016 he applied for a Safe Haven Enterprise visa.

2. On 20 September, 2016 a delegate of the Minister refused the visa application.  The delegate’s decision was a fast track decision. Accordingly, on 26 September, 2016 the Minister referred the delegate’s decision to the second respondent in accordance with s.473CA of the Act.

3. The delegate did not accept key elements of the applicant’s claims. In fact, the delegate found a number of the applicant’s claims to be implausible and also found that the applicant had exaggerated other elements of his cla

4. On 7 April, 2017, the second respondent affirmed the delegate’s decision.  On 10 May 2017, the applicant applied to this Court for orders quashing the second respondent’s decision and for the issue of a writ of mandamus, directed to the second respondent, requiring it to re-determine the matter according to law.  On 21 November, 2017 the applicant filed an amended application.  By his amended application he claims that the second respondent committed jurisdictional error because it did not consider all of the matters he raised “in totality” rather than “separately and individually”.  Further, he contends that the second respondent did not properly consider the applicant’s claims to complementary protection.  

5. The first respondent opposes the application.  The second respondent enters a submitting appearance.

The visa application

1. In his visa application and the documents accompanying it, the applicant claimed to fear harm in connection with his family’s historical and present connections with the Liberation Tigers of Tamil Eelam.  The applicant claimed that his father, grandfather, aunt and uncle were involved with the LTTE.  When the applicant was a baby his father was interrogated and killed by the Sri Lankan Army because they suspected that he was involved with the LTTE.

2. He claimed that his older sister was an LTTE member who was forcibly recruited.  She left the organisation in about 2007 when she was about 19 years old, but the LTTE went looking for her.  Members of the LTTE came to the applicant’s house looking for his sister and on one such occasion in 2008, the LTTE detained the applicant and interrogated him about his sister’s whereabouts.  As a result, the applicant fled to Qatar where he lived until the end of the war in Sri Lanka in 2009.  He returned to Sri Lanka.

3. The applicant also claimed that he had another sister, who had “problems” with the LTTE which resulted in her fleeing to France in 2008.

4. The applicant suggested that after returning from Qatar in 2009 he lived in Sri Lanka without difficulty until August, 2012.  On 6 August, 2012 the applicant’s grandfather died.  Soon after, on 17 August, 2012 the applicant’s grandfather’s death and stories calling him a hero were published on an internet site called “Tamil Wave”.

5. In September, 2012 the applicant was visited by the Criminal Investigation Department at his café and questioned about his involvement in causing the internet post.  The CID accused the applicant of trying to revive the LTTE and informed him that whenever they called him he had to come to them.  The applicant claimed that he became scared and closed his café and did not re-open it.  A few day later, the applicant says that he received a telephone call from the CID threatening to kill him.  A week later, the applicant went to stay at his friend’s house around 30km away as he felt it was not safe at home.  During this time, he says that his family received a lot of calls from the CID checking up on him.  The applicant stayed with his friend for a few weeks.

6. After that, the applicant’s mother arranged for him to stay with a local leader of the Tamil National Alliance.  This was during the lead up to the 8 September, 2012 election held in Si Lanka.  While living with the TNA leader, the applicant claimed that he worked on the leader’s election campaign in a low-level capacity.  During this time, supporters of a rival political party called the Tamil Makkal Viduthalai Pulikal  contacted the applicant’s mother and said that if the TMVP lost the election that she would lose her son.  He claimed that they also telephoned the applicant’s mother on a number of occasions threatening to kill the applicant if he continued working for the TNA.  He applicant claims that this issue escalated after the TMVP lost the September, 2012 election.  In consequence, the applicant said that he realised that he had to flee Sri Lanka.

7. However, because the CID were looking for the applicant using a photograph, the applicant says that could not leave using the airport.  Instead he fled Sri Lanka by boat.

8. The applicant also claimed to fear harm on the basis of his Tamil ethnicity and as a failed asylum seeker/illegal departee from Sri Lanka.

9. After the application was referred to the second respondent, on 26 October, 2016 the applicant, by his advisers, sent a submission to the second respondent attaching information and documents in relation to the following matters:

   a)the status of the applicants sister as a recruited member of the LTTE and having escaped the group fled to France for asylum;

   b)a “certificate of insecurity” of the applicant in Sri Lanka given by the MP Yogeswaran on his close association with his family who were involved with LTTE and his campaigning against the TMVP controlled by Pillayan a former member of LTTE becoming the Chief Minister (in the Northern District) and that he faced threat to his life;

   c)a letter from the Government of France confirming that his sister was in France and being processed for residence as a refugee;

   d)a letter from Good Shepard Convent stating that the applicant’s sister was forcibly recruited by the LTTE movement, escaped to their convent and fled overseas;

   e)a report of the death of Nullathamby, the grandfather of the applicant who was a confirmed member of the LTTE. His two sons died in support for the organisation, by the LTTE Media Sector;

   f)a report dated 11 June, 2016 in the Guardian of a refugee granted protection in UK returning to Sri Lanka to get married, who was released on arrival at the airport but was arrested later, detained and tortured in Sri Lanka, despite DFAT reports that returning asylum seekers faced only a fine for contravening the emigration laws;

   g)Website of wsws.org on 11 May, 2016 containing reports of Sri Lanka “unleashing major crackdown against Tamil youth under the PTA on a justification that ‘terrorism was thriving.’ ”;

   h)Columbo Telegraph dated 8 May, 2016 reports of the use of brutal forms of torture under the PTA and “for the act to be abolished”;

   i)Tamil.net reports of people being detained under the PTA and giving a chronology of other activities of the Sri Lankan Army and the government;

   j)The Hindu on 7 May, 2016 reporting the concern by the UN representative about ex LTTE members arrests;

   k)a BBC news report of 7 January, 2016 “of Tamils still being tortured as complained by the victims but still denied by the Sri Lankan government”;

   l)a TamilNet report of 8 January, 2016 that genocide still continues under the present government;

   m)a TamilNet report of 5 March, 2016 that Sri Lanka is still precarious for returning asylum seekers;

   n)a World News USA edition report of 13 August, 2015 that torture of Tamil still persists despite the end of war;

   o)a The Diplomat report of 28 July, 2015  of torture continuing even after Sirisena was elected president;

   p)a report by MP Yogeswaran on attacks on TNA candidate in Batticaloa;

   q)a report on details of torture as experienced by victims.

10. On 21 March, 2017 the second respondent invited the applicant to provide comments on certain country information, namely a report by the Department of Foreign Affairs and Trade published on 24 January, 2017. The applicant submitted his comments along with further country information on 4 April, 2017.

11. The second respondent considered the submissions and other material provided by the applicant’s agent on 26 October, 2016.  It found that it was new information but determined that there were no exceptional circumstances to authorise its reception and consideration for the purposes of s.473DD of the Act.

12. The second respondent accepted that the applicant’s father, aunt and uncle were involved with the LTTE and that, when the applicant was a baby, his father was shot because of this.  However, because the applicant had not asserted that such matters had resulted in any adverse interest in him, the second respondent did not consider that the applicant attracted any risk profile by reason of his father’s, aunt’s or uncle’s historical involvement in the LTTE.

13. The second respondent also accepted that the applicant’s grandfather was an LTTE member who, on his death, was hailed as a hero.  It accepted that there was an internet posting about him.  It also accepted that, after his death, the CID visited the applicant at his café to query whether he was the cause of the internet posting about his grandfather.

14. However, the second respondent did not accept that the CID continued to visit the applicant at his home after they visited his café.  The second respondent considered that the CID had no further interest in the applicant.  It reached that conclusion because:

    a)the second respondent considered that a number of assertions made by the applicant:

    i)were not made in his written statement of claims (and were first raised at the visa interview); or

    ii)were not raised with the delegate at the visa interview despite being the subject of the applicant’s written claims; and

    b)the applicant’s claims and evidence were vague, implausible and inconsistent in a large number of respects.

15. As to the claim connected with the applicant’s older sister, the second respondent did not accept any material aspect of this claim.  It considered the claim to be fabricated because:

    a)the applicant’s evidence about this claim lacked detail;

    b)the evidence the applicant gave at the visa interview failed to mention a critical aspect of this claim namely, that one of the reasons he was detained was because his sister left the LTTE.  That was not mentioned until the applicant was specifically reminded of such a matter by the delegate;

    c)the applicant’s claim that he was targeted by the LTTE on account of his sister’s involvement with them in 2008 was contrary to country information that indicated that LTTE control of the relevant region where the applicant resided ended in 2007; and

    d)at his arrival interview the applicant failed to refer to his sister’s forced recruitment.

16. Nor did the second respondent accept the factual assertions about the applicant’s other sister having issues with the LTTE or needing to flee to France in 2008.

17. While the second respondent accepted that the applicant did some low level work for the TNA in connection with the 2012 elections, the second respondent did not accept any other material aspects of the applicant’s claims about these matters.

18. The second respondent rejected that the applicant’s Tamil ethnicity, the fact of his illegal departure, and that he might be a failed asylum seeker, gave rise to a real risk of harm should he return to Sri Lanka. 

19. The second respondent did not consider that the applicant met the refugee criteria.  Nor did the second respondent consider that the applicant met the complementary protection criteria.  The second respondent affirmed the delegate’s decision.

The grounds of review

1. The applicant advances two grounds of review.  I will deal with each separately.

2. The first ground of review is in the following terms:

   1.  The 2nd Respondent erred in law by failing to consider all the facts given by the Applicant in totality, rather than separately and individually to come to a decision.

3. Although it is not expressly stated, the applicant’s written submissions complain that the second respondent determined not to take into account the submissions and other material provided by his agent on 26 October, 2016.  He argues that “The documents listed and described above [set out by me above] are those the applicant expected the IAA to take into consideration in its totality in making the decision.” 

4. The second respondent determined that most of the submission made by the applicant’s agent on 26 October, 2016 was new information which the second respondent was proscribed from considering unless it was satisfied that the requirements of s.473DD of the Act.

5. The second respondent gave specific consideration to the reception each facet of new information identified by the second respondent in the applicant’s written submission.  It explained why it did not consider that the circumstances justified its consideration.  So too the documents and other materials attached to the applicant’s written submission. For example, in respect of the media articles, the second respondent considered (footnotes omitted):

   13.    All of the country information listed above and included with the submission pre-dates the delegate’s decision.  The submission states that, on that basis, the applicant would have made it available to the delegate.  He was, however, unrepresented and the submission urges the IAA to consider the information as it supports the applicant’s fear of returning to Sri Lanka in the foreseeable future. The information all appears to be general country information and is not specific to the applicant. The applicant was advised in his SHEV interview of the limits on the IAA’s ability to consider new information and that he may not have another opportunity to provide further information. During the interview he was offered the opportunity to comment on country information about the changed country conditions for Tamils in Sri Lanka since the change of government and the treatment of returnees to Sri Lanka. In response, the applicant referred to the continuing operation of the Prevention of Terrorism Act (PTA) and how that had been used against Tamils, and at other times referred to the difficulties for Tamils as an ethnic minority which in my view, indicated that he was aware that many of the matters covered by the country information set out above were in issue. Although he was unrepresented, he provided other country information which was before the delegate and which I consider demonstrated his ability to obtain and provide relevant country information which went to the issues in his case and I do not accept his lack of representation prevented him from doing so earlier. Further, there is already a range of country information before me including a report on torture,1 an Amnesty International report on human rights in Sri Lanka2 and information about the situation regarding the treatment of Tamils under the new government information including with reference to those in custody and the general security situation.  Taking all of these matters into consideration, I am not satisfied there are exceptional circumstances to justify considering the new information.

6. There is no specific assertion by the applicant that the second respondent fell into any error in determining that the necessary criteria for the reception of the new information was not present.

7. The applicant argues that the second respondent did not consider the facts and material before it “in their totality”.  To the extent that this is an argument that the second respondent did not consider the material within and enclosed with the submission of 26 October, 2016 in conjunction with all of the other material before the second respondent, the argument cannot succeed because as set out above, the second respondent was precluded from receiving that material.

8. The applicant’s written submission before me are a mixture of assertion of illogicality on the part of the second respondent, unreasonableness in the result and assertion about the way in which the second respondent failed to afford particular weight to particular aspects of the material before it.

9. Further, the applicant appears to argue that, because the second respondent made individual factual findings on the way to its ultimate conclusion, that it somehow did not consider all the evidence in its “totality” when coming to such a conclusion.  However, I reject that argument.

10. The second respondent’s reasons make it clear that it considered all of the evidence before it, that it was permitted to consider.  It made findings about each aspect of the applicant’s claims – that was its task.  As the first respondent submits, the error underpinning the applicant’s approach seems to be to assume that, because the second respondent made subsidiary findings of fact on the way to its ultimate conclusion, the second respondent did not reach its ultimate conclusion on all of the evidence before it.  But, the second respondent could not take into account claims and evidence that it had expressly rejected or found to be unreliable. 

11. Moreover, as the first respondent submits, the second respondent had an obligation to express all the material findings of fact that it reached in support of its decision.  The second respondent’s reasons do not reveal anything unusual in the way the second respondent went about that task.  Having rejected many of the applicant’s claims, there was no obligation to assess those rejected claims cumulatively with the claims accepted by the second respondent. 

12. The applicant’s outline of submissions in this court complains about the second respondent’s conclusion that the Sri Lankan Army had no interest in the applicant.  He suggests that such a finding goes against all evidence provided to the second respondent.  But given the rejection of the applicant’s claims about the visits following his detention and questioning about his sister, this was a finding that was plainly open to the second respondent.

13. The applicant also argues that the second respondent’s finding about the Sri Lankan Army’s lack of interest in him was one which “breaches the UNHCR guidelines”.  The applicant does not suggest how that is so, but as the first respondent submits, that appears to be linked to the assertion in the applicant’s outline that the “benefit of the doubt” in respect of any factual finding ought to be given to an applicant in accordance with the UNHCR guidelines.

1. However, this argument cannot succeed because:

   a)the UNHCR guidelines are not binding on the second respondent;

   b)the “benefit of the doubt” principle only applies once a decision-maker is satisfied with the general credibility of a claim;

   c)the second respondent was not satisfied of the general credibility of the applicant’s claims in this case; and

   d)the approach has no application in a case like the present where, the second respondent’s reasons do not disclose any real doubt about the findings of fact made.

2. Finally, the applicant’s written submissions in support of this ground tend to a suggestion of actual bias on the part of the second respondent in that it is asserted that the second respondent had a “pre-planned decision to refuse the visa”.  However, there is not a shred of material that would support such a submission.  There is nothing in the second respondent’s reasons for decision that would support the submission. 

3. Ground one does not reveal any jurisdictional error.

4. Ground 2 is in the following terms:

   2. The 2nd Respondent failed to give adequate consideration under the Complementary Protection Provision of the Migration Act, in assessing that the applicant’s fear to be returned to his homeland, for fear of arrest, detention and torture if he is returned home. The applicant’s own personal experiences he had undergone, associated with the country information, leads to but one conclusion that the applicant’s fear is genuine and real.

5. It is difficult to paraphrase the applicant’s written submission on this point.  I set them out in full:

   20. S5J(1) of the Migration Act specifies the meaning of well-founded fear of persecution. ss(a) refers to being persecuted as a result of membership of a particular political group (S5K) or political opinion (LTTE) and ss(c) a real chance that he would be persecuted for this political affiliation. The question here is whether the chance is real and not perceived. The identification depends upon the experiences suffered by the applicant which is accepted by the IAA. The experiences must be identified as in the mind of the applicant not that of the IAA. It is abundantly clear and established that the applicant was a member of a particular political group through family association, that each and every family member had been subjected to arrest, detention, torture and death. While the applicant may not really able understand the significance of the grandfather’s plight being too young, he certainly witnessed all other tragedies which would have impregnated the fear of arrest, detention and torture from the experiences he heard and what he had personally suffered. The applicant made on overseas travel without fear but unlike his sister, he was afraid to take the flight because he was on a watch list. He had been arrested, interrogated (certainly with the affliction of immense pain as all interrogation techniques are in Sri Lanka) and know well by experience what torture meant. All the events must be considered together to form the conclusion, whether the fear was real or perceived. Seeing the information, he had provided, there is no doubt that they are real and not perceived.

   21. Even if the IAA was unable to justify that the applicant was not eligible for the protection visa under s5(1) of the Migration Act, it should consider all the events and the experience suffered by the applicant under s36(2) (aa) the Complementary Protection Provisions. The IAA had not justified why the applicant will not suffer any significant harm if returned to his homeland. In order to arrive at a fair conclusion, the IAA should put itself into the applicant’s own mind and not make judgments on the interviewer’s own lack of experience.

6. This is an impermissible attempt to review the merits of the second respondent’s decision. It misconceives the second respondent’s reasons for decision. The task for the second respondent was to determine if it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that the applicant will suffer significant harm. Whilst the applicant’s past experiences (as accepted by the second respondent) would assist the applicant’s case for complementary protection, the case was not to be assessed against his subjective beliefs about a real risk of harm should he be returned. The assessment to be conducted by the second respondent for the purposes of s.36(2)(aa) of the Act was an objective assessment based upon the material and findings on that material by the second respondent. That is what the second respondent did.

7. This ground does not reveal any jurisdictional error.

Conclusion

1. The application must be dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:  

Date:  19 July 2018