CBN17 v Minister for Immigration
[2017] FCCA 3123
•12 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CBN17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3123 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s reasons in respect of complementary protection failed to take into account the incidents the Authority had accepted occurred – the Authority made findings in respect of the totality of the applicant’s claims – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 473DE, 476 |
| Cases cited: Minister for Immigration v DDK16 [2017] FCAFC 188 |
| Applicant: | CBN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS AUTHORITY |
| File Number: | SYG 1477 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 12 December 2017 |
| Date of Last Submission: | 12 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges Hodges Legal |
| Solicitors for the Respondents: | Mr A Fisher HWL Ebsworth Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1477 of 2017
| CBN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 18 April 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 11 September 2012. The applicant claimed to fear harm by the Sri Lankan authorities because of his Tamil ethnicity and his association with the Liberian Tigers of Tamil Eelam (LTTE).
On 6 January 2017, the delegate found the applicant failed to meet the criteria for the grant of a visa. In the course of those findings, the delegate referred to particular incidents, including an incident in 2008 when the applicant worked as a three wheeler driver in a particular district and he was targeted by police, military, and people who spied for the government. The applicant claimed that he attended protests. The applicant claimed he was stopped and questioned many times by the CID officers who would ask if he recognised identities of persons in photos, if he was involved with the LTTE, or if he knew anyone involved in the LTTE. The applicant was asked about the protests and meetings he attended, and he responded they were union meetings. The applicant was asked whether he was a member of the union, the applicant said he was not. The delegate accepted that claim.
The applicant was also asked about an incident on 22 August 2008 when he alleged four people hit him on the head to use his three wheeler and that he was taken to hospital. The applicant alleged he was in hospital for five days until he was released. The applicant alleged he did not know what they did or if they took money and he did not report the incident to the police. The delegate recorded that the applicant said, although he is not certain who it was, he believes it was members of the Eelam Democratic People’s Party (EPDP), and that the applicant also submitted a copy of a hospital document which refers to an assault by several people and an escape from being abducted. The delegate accepted that claim.
The applicant also referred to an incident in May 2009. When he was returning back to an auto stand, he was stopped by members of the Special Task Force, who asked for his identification and if he was involved with the LTTE. The applicant alleged that the Special Task Force showed him photos and questioned him and poked him with a steel bar in his crotch, that nothing else happened and he was allowed to go. The delegate accepted that claim.
The applicant alleged that in June 2012, one of the drivers he knew was taken to the jungle and cut into pieces. The applicant also alleged another driver who he did not know was murdered and thrown down a well. The delegate accepted that claim.
The Authority’s decision
On 12 January 2017, the Authority wrote to the applicant identifying that the application for a protection visa had been referred to the Authority for review. The letter identified that there were limited circumstances in which the Authority could receive new information and identified an attached practice direction and fact sheet giving the applicant an opportunity to put on new information and put on submissions. The Authority in its reasons of 18 April 2017 identified the background to the visa application.
Information before the Authority
The Authority identified having regard to the material referred to under s 473CB of the Act. The Authority referred to receiving submissions on behalf of the applicant dated 1 February 2017 and identified why the Authority was satisfied that the requirements of s 473DD were not met in respect of a report dated October 2016.
The Authority also referred to a police report and was not satisfied that that was information that could not have been provided before the decision or that there were exceptional circumstances in which to consider the information. The Authority’s reasons on a fair reading, do not reflect any erroneously narrow construction of the meaning of exceptional circumstances, and on the face of the Authority’s reasons, the Authority has taken into account both limbs of s 473DD of the Act in respect of the new information referred to and the reasoning in respect of the submissions of 1 February 2017.
The Authority referred to further submissions dated 6 February 2017 and referred to an email which included a UN General Assembly Report dated 22 December 2016. The Authority was not satisfied that that was information that could not have been provided to the delegate prior to the decision and was not satisfied there were exceptional circumstances in existence to justify considering that new information.
The Authority also took into account a DFAT report dated 24 January 2017 consistent with s 473DE(3)(a) of the Act. On a fair reading of the Authority’s reasons in relation to the further submissions, no erroneously narrow construction of exceptional circumstances was taken into account by the Authority. Further, on a fair reading, the Authority’s reasons did not fail to take into account both limbs of s 473DD of the Act.
Consideration of Refugee Convention Criteria
The Authority set out the applicant’s claims. The Authority accepted that in 2008 in order to support rickshaw workers, the applicant attended protests that occurred in a particular district and he was occasionally stopped and questioned in the streets by Sri Lankan officials during that time. The Authority found it plausible that the applicant may have been stopped and questioned as a result of his Tamil ethnicity and possible imputed association with the LTTE, and it was also plausible that plain clothed CID would stop and question him regarding his knowledge of persons that they wanted information about.
The Authority referred to an allegation that around 22 August 2008 he was assaulted while driving. The Authority accepted that he was assaulted and that that required hospitalisation. The Authority identified that there was no evidence apart from the applicant’s assertions to suggestion the perpetrators of the attack were members of the EPDP. The Authority concluded that on the evidence before the Authority, the applicant was the victim of an unfortunate assault that of which there could have been a number of reasons, and identified that the Authority could not speculate as to what the exact reason was.
The Authority referred to an incident in 2009 when the applicant was approached by the State Task Force and considered it plausible that the applicant was so approached. The Authority however, was of the view that this was an isolated incident and the applicant was able to leave. The applicant was not fined nor was there any action taken which indicated to the Authority that the applicant was of further interest to the State Task Force.
The Authority referred to the death of one of the auto drivers that the applicant knew around June 2012 and accepted that the incidents may have contributed to the applicant’s decision to leave Sri Lanka, but found there was no credible evidence as to the circumstances of those deaths or the perpetrators.
The Authority was not satisfied the applicant has or is now perceived to have any links with the LTTE. The Authority found the first incident that occurred in 1997, approximately 20 years ago was minor, isolated, and did not amount to the applicant suffering any serious harm.
The Authority referred to what occurred in the 2008 incident, over a decade later, and found there was no evidence to indicate that these incidents were linked in any way and did not accept the applicant would have been imputed with having any LTTE affiliations arising from these incidents.
The Authority found the applicant did not have an adverse profile or any significant history with the Sri Lankan authorities, the CID, the SLA, or other Sri Lankan authority or paramilitary organisations, and did not accept that the applicant has any actual or imputed connection with the LTTE.
The Authority was not satisfied that the attack in August or September 2012 had any impact on the applicant and did not accept that the applicant was involved in that in any way. The Authority referred to gatherings in large vacant lots next to the auto stand where the applicant transported people, but was not satisfied on the evidence before the Authority that anything had occurred to the applicant personally as a result of this.
The Authority did not accept that the applicant faces a real chance of harm as a Tamil male from the Northern province, or on account of his previous experiences and encounters in Sri Lanka.
The Authority accepted the applicant departed Sri Lanka illegally in 2012 and found there had been considerable changes in the security and political situation since in Sri Lanka. The Authority found the applicant did not have a profile that would warrant any attention from the authorities.
The Authority made reference to accepting that the applicant may be detained and questioned based on the evidence regarding the improved situation for Tamils and the reduction of questioning and detention of ordinary Tamils in former LTTE areas and taking into account the applicant’s low profile, the Authority was not satisfied there is a real chance that the applicant would suffer serious harm by the Sri Lankan authorities, the CID, the SLA or any other group or person on the basis of his ethnicity as a Tamil from the Northern province of Sri Lanka, a failed asylum seeker, for having departed Sri Lanka illegally or perceived as having connections with the LTTE.
The Authority referred to country information and accepted that the applicant may be detained, the Authority was not satisfied that the brief detention that the applicant may face constituted serious harm. The Authority made express reference to having considered the applicant’s evidence in totality. It was in those circumstances the Authority found that it was not satisfied that the applicant has a real chance of being seriously harmed as a returnee, voluntary or otherwise, former asylum seeker, a person returning on a temporary travel document, or for any of the reasons claimed.
It was in those circumstances the Authority found the applicant did not meet the definition of refugee in s 5H(1) of the Act and did not meet the criteria under s 36(2)(a) of the Act.
Complementary protection criteria
The Authority referred to the requirements of significant harm in s 36(2A) of the Act and accepted that there is still societal discrimination with respect to Tamils, but did not accept that the discrimination would constitute significant harm. The Authority referred to the applicant being detained and questioned and a penalty or fine being imposed, and was not satisfied that would constitute significant harm. The Authority then identified having found there to be no real chance of the applicant facing serious harm on the basis of his brother-in-law having disappeared, participating in protests, transporting members of the TNA, being a failed asylum seeker, or any perceived connection with the LTTE. The Authority then stated that for the same reasons, the Authority is not satisfied there is a real risk of significant harm.
The Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, that there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
Ground 1 of the application is as follows:
1. The IAA committed jurisdictional error by failing properly consider whether the applicant faced a real chance of serious harm in accordance with the “complementary protection criteria" in section 36(2A) of the Migration Act 1958.
PARTICULARS
a. The IAA committed jurisdictional error by viewing each of the applicant's claims in isolation rather than considering them cumulatively when concluding whether the applicant faced a real chance of serious or significant harm.
b. At [10], the applicant claimed that he was physically assaulted and subsequently detained for two days by the Sri Lankan Police (SLP) in 1997.
i. At [16], the IAA accepted this claim.
ii. However, the IAA later, at [22], considered that this was an 'isolated incident'.
c. The applicant also claimed that, in 2008, his brother in law disappeared after he had attempted to hire his three-wheeler for passenger service.
i. At [17], the IAA accepted this claim.
ii. However, the IAA considered that it did not have evidence before it to indicate that his event caused or would cause the applicant serious harm.
d. The applicant claimed that, during the course of his employment as an auto rickshaw driver, the applicant participated in several protests. As a result, he claimed that he was stopped and questioned by the CID on several occasions and was accused of having LTTE connections.
i. At [18], the IAA accepted that it was plausible that the applicant was questioned as a result of his Tamil ethnicity and possible imputed association with the LTTE.
ii. Furthermore, the IAA accepted, at [19], that the applicant was assaulted around 22 August 2008. However, the IAA considered that this was an “unfortunate accident”.
e. The applicant further claimed that he was assaulted and questioned by members of the Special Task Force (STF), in 2009, when he was returning his auto rickshaw.
i. At [20], the IAA accepted this claim however it considered that this was an 'isolated incident'
f. Having accepted all of the claims above, the IAA erred in viewing them in isolation when considering the real chance the applicant faced in suffering serious harm.
g. Rather, the IAA should have considered the claims cumulatively to highlight that serious harm suffered in the past was significant enough to warrant a risk that harm may be suffered in the future if he is to return to Sri Lanka.
Mr Hodges, the solicitor for the applicant, confirmed that ground 2 is not pressed.
Consideration
In relation to ground 1, Mr Hodges took the Court to the incidents that the applicant alleged occurred and in particular, the acceptance of part of those incidents in the Authority’s reasons. Mr Hodges accepted that the Authority had effectively referred to considering the applicant’s claims cumulatively by reference to the consideration of the applicant’s evidence in totality under the Refugee Convention but submitted that the Authority’s reasons in relation to complementary protection had failed to take into account the incidents that the Authority had accepted had occurred, beyond the limited references identified on one reading of paragraph 43.
The Authority’s reasons are not to be read with a keen eye for error. On a fair reading, the Authority in paragraph 43, picked up the findings that the Authority had made in relation to the considerations under the Refugee Convention claims. It is apparent that that was an assessment in respect of the totality of those claims. For these reasons, no jurisdictional error as alleged in ground 1 is made out.
I note that the first respondent submitted that the decision in Minister for Immigration v DDK16 [2017] FCAFC 188, gave rise to a principle to the effect that there was no obligation in relation to complementary protection to make a cumulative assessment of the applicant’s claims and evidence. I do not read the reasons of the Full Court as supporting that proposition. The Full Court’s reasons were dealing with a particular case before it, and the particular findings that had been made by the Authority, and the particular observations that had been made by the trial judge that was found to be in error.
The assessment of whether or not there is a significant risk of harm is one that must take into account the applicant’s claims and evidence, just as must the Refugee Convention claims must take into account the applicant’s claims and evidence, in the determination of whether there is a real risk of harm under the Refugee Convention. No jurisdictional error as alleged in ground 1 is made out.
The application is dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 29 January 2018
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