Cba17 v Minister for Immigration

[2020] FCCA 511

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBA17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 511

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application for leave to amend application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming a decision not to grant the applicant a safe haven enterprise visa – whether adequate explanation given for not having applied for leave to amend by time provided for by previous order – whether proposed ground has sufficient merit to warrant leave – application for leave to amend refused – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: CBA17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1451 of 2017

Judgment of: Judge Manousaridis

Hearing date: 6 March 2020

Date of Last Submission: 6 March 2020

Delivered at: Sydney

Delivered on: 13 March 2020

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges of Hodges Legal

Solicitors for the Respondents: Mr K Eskerie of Sparke Helmore Lawyers

ORDERS

1. The application to amend the application in the manner identified in the submissions filed by the applicant on 25 February 2020 is dismissed.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1451 of 2017

CBA17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The questions that arise on this application for remedies under s.476 of the Migration Act 1958 (Cth) is whether I should permit the applicant to amend his application to claim that the second respondent (Authority), in affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV), failed to consider what the applicant claims was an integer of his claims for protection; and, if that question is answered in the affirmative, to determine whether the Authority did fail to consider such claim.

2. To be in a position to identify what the applicant intends to claim is the integer of his claims for protection the Authority did not consider, it will be necessary to set out the applicant’s claims for protection, and the Authority’s reasons for not accepting them.

Claims for protection

1. The applicant stated his claims for protection on a number of occasions. It would be convenient to begin with the claims he made in a written statement dated 9 March 2016 (Statement), which formed part of his application for a SHEV. The applicant there stated as follows:[1]

   [1] CB77 - 81

   a)The applicant is a citizen of Sri Lanka, a Tamil, and a Catholic. The applicant was forced to flee Sri Lanka because of the harassment and fear of further persecution in the form of torture, and possibly death, by the Sri Lankan Army (SLA).

   b)The applicant’s only male cousin (cousin) was a prominent member of the Liberation Tigers of Tamil Eelam (LTTE). The applicant and the cousin grew up together, living in houses that were next to each other. The cousin was five years older than the applicant.

   c)The cousin was a soldier who, in 2006, left the applicant’s area to fight with the LTTE. The SLA was aware of the cousin’s involvement with the LTTE. Soon after the cousin went off to fight with the LTTE, the SLA started to question the applicant and the cousin’s friends about the cousin’s whereabouts, and where weapons were being stored.

   d)The applicant was rounded up weekly, and sometimes every three days. Each time “they” beat the applicant and demanded he answer all their questions. “They” often came to the applicant’s place of employment, and would take his photo. On some occasions the CID (that is, the Criminal Investigation Division) came, but most of the time it was the SLA who came.

   e)The applicant became fearful, and he stopped going to work. The applicant and his wife agreed to go to India. The applicant and his wife travelled to India by use of a smuggler where they stayed for approximately five months.

   f)The applicant and his wife returned to Sri Lanka because they believed it would be safe. The cousin had disappeared, and the applicant heard rumours the cousin had been taken by the Navy. “[A]s such”, the applicant believed the authorities would no longer question the applicant about the cousin’s whereabouts.

   g)Shortly after the applicant and his wife returned to Sri Lanka, however, the applicant’s wife’s cousin, who was a friend of the cousin, was abducted by the SLA, and he has not been seen again; and there is no information of his whereabouts, or of his fate.

   h)After the wife’s cousin had been abducted, the applicant again started receiving visits from the SLA. He was ordered to remain in the area, and be available whenever the SLA wanted to question him.

   i)After the war Tamils were being rounded up for questioning about the location of weapons, and for names of persons who were involved with the LTTE. Many people were used as spies for the SLA. The applicant believes the SLA discovered the cousin was more involved with the LTTE than they had originally thought, and that “his role actually involved storing weapons in different areas prior to attacks”.

   j)In April 2012 the SLA came to the applicant’s home and kidnapped him; they took him away in a white van. The applicant was beaten, blindfolded, and he was told he would be shot if he did not confess that he knew where weapons were being stored. The applicant was finally released, but he was warned “they” will come again, and that the applicant better be ready to answer their questions.

   k)As his fears further intensified, in October 2012 the applicant sought the assistance of a people smuggler, and he fled Sri Lanka. The applicant cannot go to the authorities and seek protection because the authorities are linked with the SLA, and they have the same fear and hate towards Tamil persons, and in particular, family members of former LTTE members.

   l)The applicant’s wife informed him that the SLA have been to their house, and questioned her about the applicant’s whereabouts. The applicant’s wife informed the SLA the applicant no longer lived in Sri Lanka, but the SLA demanded the applicant return and provide them with information “as to location of the weapons”.[2]

   [2] CB79, [40]

Authority’s reasons

1. The Authority accepted the applicant is a Tamil male from the Eastern Province. The Authority rejected the applicant’s written and documentary evidence relating to the circumstances in which and the reasons for which the applicant went to India in 2006; it preferred the later oral evidence the applicant gave before the delegate that he went to India with his then girlfriend (now wife) for personal reasons, and that they returned to Sri Lanka five months later for personal and economic reasons.[3] The Authority, therefore, did not accept the applicant had been subjected to any questioning, interrogations, beatings, harassment, or any other harm at his home or place of employment because of the cousin’s LTTE involvement before the applicant’s departure to India; and the Authority did not accept such things occurred after he returned from India.[4]

   [3] CB178-179, [24]

   [4] CB178-179, [24]

2. The Authority, however, was prepared to accept the applicant had a cousin who was involved with the LTTE who has been missing since 2006, and who the Authority presumed was dead.[5] The Authority accepted the applicant had a close relationship with the cousin; and it found it plausible that the cousin may have borrowed the applicant’s vehicle during 2002 to 2006.[6] The Authority was prepared to accept that, as a Tamil growing up in a former conflict area, the applicant may have faced questioning, monitoring, and harassment during his life in the Eastern Province; and it accepted the applicant is likely to have encountered such treatment in the years before and after the war, and that he may have been questioned about the cousin’s past involvement with the LTTE, although the Authority was not satisfied he was seriously considered as having links to the LTTE, whether directly or through the cousin in or around 2006, as the applicant claimed.[7]

   [5] CB179, [26]

   [6] CB179, [27]. In the delegate’s reasons for decision, the applicant is recorded as having stated that he “had lent his three-wheeler to his cousin on occasion, during the period from 2000 to 2006” – see CB106

   [7] CB179, [25]

3. The Authority also accepted the applicant’s claim that soon after he returned to Sri Lanka from India in 2006 the SLA abducted the applicant’s wife’s cousin.[8] The Authority accepted it was likely the applicant was monitored and harassed during the period after he returned from India, and that the applicant may have been questioned about the cousin’s past involvement with the LTTE.[9] The Authority had significant doubts the applicant was ever seriously considered as having links to the LTTE, whether directly, or through the cousin. Here the Authority referred to the contrast afforded by the applicant’s wife’s cousin, who had been abducted. The Authority noted the applicant was not detained or abducted by the SLA or the authorities before 2012.[10]

   [8] CB179, [28]

   [9] CB179, [29]

   [10] CB179, [29]

4. The Authority was prepared to accept that the applicant’s wife may have been visited by the authorities on several occasions after the applicant departed Sri Lanka; but it was not satisfied this was due to any ongoing interest or investigation by the authorities. The inquiries were consistent with country information about the regular monitoring of Tamils in the years after the end of the civil war, particularly in the east and north of the country.[11]

   [11] CB180, [30]

5. The Authority then addressed what it described as the applicant’s “profile”. The Authority began by describing in detail the applicant’s claims about his arrest and detention in April 2012, these being that:[12] in April 2012 the SLA detained the applicant for three hours and, in that period, he was put in a van, questioned, threatened, and harmed; during “this period” many Tamils were being arrested for questioning about LTTE members “and the location of weapons”, the applicant believed the authorities may have received more information about the cousin and his involvement with the LTTE, and that is why the SLA came to the applicant’s home, took him away, and detained him for three hours; during the time he was detained the applicant was beaten, and threatened that he would be shot if he did not confess where the weapons were; when the applicant was released, he was warned the SLA would come again and that he better be ready to confess to them where the weapons were; and the applicant remained in his town, but, because he feared he would again be detained and beaten or killed, in October 2012 he finally left his home.

   [12] CB180, [31]

6. Having described these claims, the Authority said:[13]

   I am prepared to accept the April 2012 detention occurred, and that he was threatened and mistreated during this time, prior to being released 3 hours later. I also find it plausible that information about his cousin, their family relationship and the past . . . use of his vehicle may have been a catalyst for this detention.

   [13] CB180, [32]

7. The Authority referred to “the UNHCR Guidelines”, and acknowledged that those guidelines “suggest that a close family relationship to a person who was an LTTE combatant or cadre may itself be a risk profile”.[14] The Authority, however, was satisfied there are a range of factors that indicate the applicant either does not have such a risk profile, or, if he did at some point in 2012, he would not now face a real chance or risk of harm on that basis. The Authority relied on three matters.

   [14] CB180, [33]

8. First, the Authority found it significant that between 2006 and 2012 the applicant was not abducted or detained for interrogation by the SLA or the authorities in connection with the cousin’s claimed LTTE involvement;[15] that, when he was detained in April 2012 he was released after three hours;[16] that, while he was subject to severe mistreatment, and warned he may be questioned again, during the five or six months the applicant remained in his home area he had not been detained, harmed, or questioned “about his cousin’s claimed involvement”.[17] After acknowledging the applicant believed the authorities did not pursue him further because they were continuing to build a case against him, the country information to which the Authority had referred earlier in its reasons indicated that the SLA and Sri Lankan authorities “were not nuanced in such investigations and acted with impunity towards those suspected of LTTE involvement or connection”. The Authority then made the following findings:[18]

   Instead, the evidence before me strongly suggests that while the authorities may have had intelligence or other information that they relied on to question the applicant, they did not seriously consider that he was involved with the LTTE, that he had knowledge of his cousin’s involvement, or that he held a political opinion in favour of the LTTE. Were it otherwise, I am satisfied that the Army or other authorities would have either continued his detention, or sought to detain him on more than one occasion, and/or subject him to further and more severe ill treatment to obtain further information.

   [15] CB180, [34]

   [16] CB180-181, [34]

   [17] CB181, [34]

   [18] CB181, [35]

9. The second matter on which the Authority relied as indicating the applicant either does not have a risk profile of the sort identified by the 2012 UNHCR Guidelines, or, if he did at some point in 2012, he would not now face a real chance or risk of harm on that basis, is that the applicant was able to travel freely to Negombo in 2012 and, on the evidence he gave before the delegate, he was able to clear ten army or police checkpoints, and that the authorities checked his identification documents and asked him questions.[19] The third matter is that, although the 2012 UNHCR Guidelines indicate that a person with family links to an LTTE combatant or cadre may be at risk of harm, the Authority found there “have been significant shifts in the country information since then”, and that “recent reports no longer indicate that a person with the applicant’s profile or family connection to an LTTE member would put him at risk of harm”.[20] The Authority referred to those “recent reports”.

   [19] CB181, [35]

   [20] CB181, [37]

10. On the basis of these findings, the Authority concluded as follows:[21]

    I accept that [the applicant] does potentially fall into the UNHCR risk profile of persons who were family members of former LTTE members or combatants, however having regard to the limited (albeit serious) interest shown towards the applicant in the past, and more recent country information about the reduced risks to persons with such profiles, I find there is not a real chance of the applicant being seriously harmed for these reasons if he were to return to Sri Lanka in the reasonable [sic] foreseeable future.

    [21] CB182, [40]

11. The Authority considered other claims the applicant had made, but, for reasons it is unnecessary to set out, it was satisfied that none of those claims exposed the applicant to a real chance of persecution in the reasonably foreseeable future. Also for reasons it is not necessary to set out, the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.

Proposed amendment

1. The application, as currently filed, contains two grounds. The proposed amended application removes the second ground, and ground 1 is sought to be amended as follows (references omitted):

   The IAA committed jurisdictional error by failing to consider an integer of the applicant’s claim.

   PARTICULARS

   (a)The applicant claimed that his cousin was a member of the LTTE and that he feared serious harm due to the familial connection.

   (b)The IAA accepted that the applicant potentially falls into the UNHCR risk profile published in the UNHCR Eligibility Guidelines 2012 of persons who were family members of former LTTE members or combatants.

   (c)The guidelines note people with the following profiles of persons with family links . . . . . . . or otherwise closely related to persons with profiles of former LTTE members or combatants. It is submitted that these profiles are disjunctive and should be considered separately.

   (d)The UNHCR Guidelines also state:

   “More specifically, the possible risks facing individuals with the profiles below require careful examination. The UNHCR considers that individuals with these profiles – though this list is not exhaustive - may be and in some cases [is] likely to be in need of international refugee protection”

   (e)The IAA accepted that the applicant had a close relationship with his cousin but did not consider the claim that the applicant’s cousin was a close relative.

   (f)The IAA did not deal with the integer of the claim that is described as follows:

   (i)The applicant had a close relationship to his cousin;

   (ii)The two lived next door to each other;

   (iii)The cousin was in the LTTE;

   (iv)As part of his role with the LTTE the cousin stored and secreted weapons;

   (v)The cousin disappeared, and

   (vi)The applicant was kidnapped beaten and threatened. He was questioned as to the whereabouts of the cousin’s weapons,

   (vii)The risk so identified does not result from the applicant’s LTTE links per se but as a result of the applicant’s perceived knowledge of the cousin’s weapons storage.

   (viii)The IAA did not engage with the applicant’s claims to be at risk because he has knowledge of the location of the cousin’s weapons.

2. At the hearing before me, Mr Hodges, who appeared for the applicant, said that paragraph (viii) of the particulars should be read as including the words “is perceived” between the words “because he” and “knowledge of”. Although the addition of “is perceived” in this manner is not grammatical, it is clear that the ground the applicant desires to advance by the amendment he seeks is that there was before the Authority a claim that the applicant was at risk of harm because he is perceived to have knowledge of the location of the cousin’s weapons, but the Authority failed to consider that claim.

Course of hearing

1. Mr Eskerie, who appeared for the Minister, opposed the Court granting leave to file an amended application. The applicant first gave notice of his intention to apply for leave to amend his application on 25 February 2020, some two weeks before the hearing; and Mr Eskerie submitted the applicant has given no explanation for not having filed an amended application by 9 November 2017, being the date by which, under orders I made on 16 August 2017, the applicant was required to file an amended application.

2. I indicated to the parties that I would treat what is before me as an application for leave to amend the application. I invited the parties to make submissions on the merits of the proposed amendment, and I indicated that in my reasons for judgment I would either dismiss the application for leave to file an amended application, or grant the applicant leave to file the amended application but dismiss the application, or grant leave and allow the application. I further indicated that I would proceed on the basis that the applicant abandons ground 2. The parties agreed with my proposal.

Application for leave – absence of explanation

1. The applicant did not in his written submissions give any explanation for not having filed an amended application by 9 November 2017. Mr Hodges gave some explanation which related to difficulties in obtaining instructions. It is unnecessary to set out the explanation in any further detail because the absence of an adequate explanation is not, in the circumstances of this case, a matter to which I propose to attach any weight.

2. Mr Eskerie informed me that the late amendment has resulted in the Minister incurring costs he otherwise would not have incurred. The additional costs do not appear to relate to anything the Minister has done in the proceeding. The applicant had given notice of his intention to amend the application before the Minister was required to file his submissions; and the submissions the Minister did file addresses the proposed ground, not the grounds contained in the application as currently filed.

3. I infer the additional costs to which Mr Eskerie referred are costs the Minister may have incurred in relation to a practice which it is reasonable to assume exists under which the Minister receives advice from its lawyers about an application at or around near the time a court book is prepared, and after which an applicant has been given an opportunity to file an amended application. Even if that were so, however, it would be difficult to imagine that an amendment of the sort the applicant seeks, if allowed, could result in the identification of any tangible costs thrown away.

4. Whether I should permit the amendment, therefore, turns on the merits of the proposed ground.

Proposed amendment - merits

1. In his written submissions the applicant submits the Authority did not make a finding in relation to the claim that the cousin, who was also the applicant’s neighbour, “was a person who stored weapons for the LTTE”. In particular, the applicant submits, the Authority made no findings “as to the applicant’s knowledge, actual or perceived, of the cousin’s role”; and, most important of all, the Authority did not consider the “applicant’s claim that on return to Sri Lanka at the time of the IAA decision he would be at risk because of the perception or reality that he knew the location of the cousin’s weapons”.[22]

   [22] Applicant’s outline of submissions [15]

2. It is apparent from these submissions that the applicant submits there was before the Authority claims that the cousin had stored weapons, that the applicant knew the cousin stored weapons, and that the applicant was perceived to have knowledge of the location of weapons stored by the cousin. At the hearing before me, however, I understood Mr Hodges to submit that the claim the proposed amendment seeks to allege was before the Authority, and which the Authority did not consider, is a claim that the applicant faced a risk of harm because he would be perceived to have knowledge of the location of weapons the cousin stored.

3. In any event, there would be no arguable case that the applicant had claimed the cousin stored weapons, or that the applicant knew the cousin stored weapons. In the Statement the applicant stated he was questioned about the cousin’s whereabouts, and about where weapons were being stored, and the applicant said the SLA “did not believe me when I said I did not know”.[23] The applicant further stated that he believed the SLA “discovered that my cousin was more involved than they originally thought”, and that “his role actually involved storing weapons in different areas prior to attacks”.[24] The applicant did not say he knew the cousin stored weapons. The clear effect of this part of the applicant’s claims, therefore, is that the SLA asked the applicant questions about weapons because of information the SLA had gathered about the cousin, and the applicant denied to the SLA he knew anything about that. The claim, therefore, that was before the Authority is that the applicant was or would be perceived to have knowledge of the location of weapons the cousin had stored.

   [23] CB78, [13]

   [24] CB78, [24]

4. As submitted by the Minister, it is beyond argument the Authority was aware that a claim to that effect was before it. When describing the applicant’s claims the Authority referred to the applicant having claimed he was asked about the cousin’s whereabouts, and was “also asked . . . where his cousin’s weapons were being stored”;[25] that the applicant believes the SLA discovered the cousin was more involved with the LTTE than they had originally thought, “such as in storing weapons in different areas prior to attacks”;[26] and, when he was kidnapped and ill-treated in April 2012, the applicant was told “he would be shot if he did not confess that he knows where the weapons were stored”.[27]

   [25] CB175, [11], fifth dot point

   [26] CB176, [11], seventh dot point

   [27] CB176, [11], ninth dot point

5. Consistently with the Minister’s submissions, it is also beyond argument that the Authority considered that particular claim:

   a)The Authority accepted the applicant’s claim that he was kidnapped in April 2012, and that he was threatened and mistreated before being released three hours later.[28] The Authority also accepted the applicant was questioned about the cousin’s “whereabouts or the whereabouts of any arms cache he may have left behind”.[29]

   b)The Authority found plausible that “a catalyst for this detention” was “information about his cousin, their family relationship and the past of [sic] use of [the applicant’s] vehicle”.[30] The Authority’s use of “information about his cousin”, particularly when read next to “their family relationship”, was intended to refer to the information the applicant claimed he believed the SLA had obtained about the cousin, including the cousin’s storing weapons. Thus, the Authority found plausible that one of the catalysts for the applicant’s detention in April 2012 was information the SLA obtained about the cousin, including the cousin’s storing weapons.

   c)Finally, the Authority found that, while the authorities may have had intelligence or other information on which they relied to question the applicant, “they did not seriously consider that he was involved with the LTTE, that he had knowledge of his cousin’s involvement, or that he held a political opinion in favour of the LTTE”.[31] It is true the Authority did in not terms state that the authorities did not seriously consider the applicant did not have knowledge about the cousin’s holding weapons; but the Authority did not have to. The Authority found the authorities did not seriously consider the applicant had “had knowledge of his cousin’s involvement” which necessarily covers knowledge of the nature of the cousin’s involvement with the LTTE, including storing weapons.

   [28] CB180, [32]

   [29] CB180, [34]

   [30] CB180, [32]

   [31] CB181, [35]

6. In short, the Authority accepted the authorities kidnapped and detained the applicant; during his detention the applicant was interrogated about, among other things, the cousin’s having stored weapons; and the applicant was so detained for reasons that included the authorities’ having obtained information that the cousin may have stored weapons. But the Authority found that, on the applicant’s release, the authorities did not seriously consider, among other things, that the applicant had knowledge of the cousin’s involvement with the LTTE, including the cousin’s having stored any weapons.

Conclusion and disposition

1. For these reasons, there is insufficient merit in the proposed amended ground on which the applicant wishes to rely. I propose, therefore, to order that the application to amend the application be dismissed, and that the application be dismissed.

2. Mr Eskerie and Mr Hodges agreed that costs should follow the event. Mr Eskerie said that if the Minister were to succeed, he would seek an order that the costs be set in the amount of $5,000. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $5,000.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 March 2020