CCK18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 998
•10 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCK18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 998
File number(s): SYG 1170 of 2018 Judgment of: JUDGE LAING Date of judgment: 10 October 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA constructively failed to exercise its jurisdiction by failing to consider and determine a claim – application dismissed Legislation: Immigrants and Emigrants Act 1949
Migration Act 1958 (Cth) ss 36, 473DD and 473FB
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 27 September 2024 Place: Sydney Counsel for the Applicant: Mr G Foster Solicitor for the Applicant: Sentil Solicitor Solicitor for the First Respondent: Mr M Gao of HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1170 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCK18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
10 OCTOBER 2024
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a Sri Lankan national who arrived in Australia as an unauthorised maritime arrival in 2012.
On 16 January 2017, the applicant applied for a protection visa.
On 21 June 2017, the Delegate refused the application. The matter was then referred to the IAA for review.
On 12 April 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA found that media articles, extracts and links to other media articles provided by the applicant after the Delegate’s decision did not meet the requirements for consideration under s 473DD of the Migration Act 1958 (Cth) (Act). The IAA declined to accept new information comprising printed links to articles, by reference to s 473FB(5) of the Act (at [4]-[6]).
The IAA accepted that:
(a)the applicant was a Hindu Tamil from an area in the Western Province of Sri Lanka (at [10]);
(b)the applicant’s family suffered hardship as a result of the civil war, including the destruction of property and the disruption of the applicant’s education (at [11]);
(c)in 2006, the applicant was involved in an altercation with the police. He and his friend were taken into custody and beaten, before being released after payment of a bribe (at [12]);
(d)in 2006, the applicant’s wife’s cousin was killed on suspicion of affiliation with the Liberation Tigers of Tamil Eelam (LTTE) (at [12]);
(e)the applicant and his wife were, on occasion, subjected to round-ups and questioned by the authorities (at [17]);
(f)the applicant worked for a Tamil newspaper as a ‘machine minder’ and newspaper deliverer (at [20]);
(g)the applicant and his colleagues were occasionally interrogated and verbally abused, including at checkpoints and when delivering papers, and they would be beaten if they argued back (at [20]); and
(h)the applicant had a strong subjective fear of being detained, questioned and harmed by the authorities as a result of his experiences (at [25]).
The IAA did not accept that:
(a)the applicant was at risk of harm on the basis of events that had occurred 12 years previously (at [12]);
(b)the applicant’s wife was a member of the LTTE, that he and his wife were forced to move to avoid the suspicion of the authorities, that his wife was in hiding, that he and other family members were questioned about his wife, or that he and his wife were beaten when they were interrogated by the authorities about her suspected LTTE involvement (at [16]);
(c)the fact that the applicant and his wife were occasionally subjected to “round-ups” and questioned indicated that either of them were personally of interest to the authorities or had an adverse profile (at [17]);
(d)the applicant was singled out by the authorities during a newspaper delivery two days before he departed for Australia and that, as a result, he was detained at the police station, beaten, questioned and threatened (at [21]);
(e)the applicant would be at risk of harm now or in the reasonably foreseeable future, either because of his work in the past or if he were to resume work for the paper (at [22]);
(f)the applicant would be unable to obtain employment in a similar role because of his ethnicity (at [23]);
(g)the applicant could be said to have been employed in journalism, and accordingly imputed with the qualities of a journalist or someone who could report on sensitive topics (at [22]);
(h)the applicant’s wife was often interrogated by the authorities about the applicant’s whereabouts after his departure and this raised suspicions about their involvement with the LTTE (at [24]);
(i)the applicant would face a real chance of serious harm on the basis of his Hindu religion (at [26]-[27]); or
(j)the applicant was at risk of harm if he returns to Sri Lanka for reasons of his Tamil ethnicity, gender or imputed political opinion (at [28]-[32]).
The IAA accepted that the applicant was affected by the disclosure of his personal information on a website by the Department in 2014. However, the IAA did not accept that he would face an increased risk of harm on this account (at [33]).
The IAA accepted that the applicant may be questioned and charged under the Immigrants and Emigrants Act 1949 on account of his illegal departure. This may result in him being detained for a limited period in unpleasant conditions, as well as a fine. The IAA found that this would be pursuant to a law of general application. The IAA did not accept that this would result in a real chance of serious or significant harm (at [34]-[42] and [47]-[48]).
On the basis of the above, the IAA was not satisfied that ss 36(2)(a) or 36(2)(aa) of the Act had been met. The IAA accordingly affirmed the Delegate’s decision (at [43]-[50]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 26 April 2018. The matter remained in the central migration docket for some time and was initially docketed to another Judge, before being docketed to me and listed for hearing. By the time that the matter was listed for hearing, the applicant relied on an amended application containing the following ground:
1.The IAA erred when it did not accept the Applicant is at risk of harm now or in the immediately foreseeable future on the basis of his work for the [redacted] newspaper.
Particulars
i.[25]
ii.The IAA considered, but did not accept, the Applicant is at risk of harm because of his work for the [redacted] newspaper in the past [22];
iii.The IAA considered the new Sirisena government’s position regarding *journalists being free to be critical of the government,
*the government granting access to a number of news sites,
*recent incidents in 2016 where journalists were subjected to arrest harassment physical violence and intimidation [22], but the IAA did not consider if the Applicant could face a real chance of serious harm within the newspaper office should he return and work there;
iv. The Applicant made the claim at CB232.3;
v.Support for the Claim was at DFAT “DFAT Country Information Report – Sri Lanka” footnoted at CB254 para [3.68];
vi. Accordingly, the IAA constructively failed to exercise its jurisdiction.
(As per the original)
The applicant observed that he had claimed to have left Sri Lanka because of his workplace in a statutory declaration made in support of his protection visa application. He had claimed that his “job in journalism has put [him] at greater risk”. In submissions made to the IAA (that the IAA had not found to be excluded under s 473DD of the Act), the applicant had stated:
Although I am not a [j]ournalist I was imputed with the qualities of a journalist and was seen working with journalists.
Added to this is also the element of Tamil race and the publication of stories by the newspaper highlighting security force atrocities. The suspicion of LTTE is also an element albeit a minor one. Not just journalists, people who worked for [name redacted] have been attacked in the past.
The applicant observed that the “DFAT Country Information Report Sri Lanka” (24 January 2017), which was before the IAA, stated:
3.68According to the Committee to Protect Journalists, there have been no journalists known to have been killed in Sri Lanka since the end of the conflict in 2009. However, DFAT is aware of a number of historical attacks against particular media outlets, including police raids against the offices of media organisations, attacks against individual journalists and editors and arson and other attacks against media organisations. DFAT is not aware of any recent reports of this kind of violence.
By reference to the above, the applicant submitted he had claimed that it was not just journalists who had been attacked and that working associates of the same newspaper were also at risk. The applicant submitted that his claim to face harm was not limited to harm from the Sri Lankan authorities. He submitted that the IAA, in its reasoning, focussed on the (then) new government’s treatment of journalists and journalistic freedoms. He submitted that the IAA did not consider the alternative claim that the applicant could be at risk of attack from persons not part of, or connected with, the Sri Lankan authorities.
The IAA reasoned as follows at [18]-[20] regarding the applicant’s claims in relation to the newspaper (footnotes omitted):
18. The applicant claimed in his written statement that because he worked for the Tamil newspaper, [name redacted], he was interrogated and verbally abused for this work on occasions when he and colleagues passed through checkpoints. He claimed, for the first time in his SHEV interview that he was taken by the authorities one day when he was delivering the paper, questioned at the police station, beaten and threatened because of what the newspaper was printing; he said the police told him [name redacted] was publishing things against the government.
19. The applicant claimed that the media is not free to report and there is ample credible information from a range of authoritative sources about attacks on media outlets and organisations in Sri Lanka under the previous government5 which systematically suppressed freedom of expression.6 Critics of government, including human rights activists, were subjected to harassment, intimidation, violence, imprisonment, enforced disappearances and killings7 because of the topics they covered such as government accountability and human rights.8 The media was subject to registration requirements, guidelines about what could be published and a code of conduct which placed media workers at risk if not adhered to.9 Opposition-oriented print media occasionally faced problems with printing and circulation.10
20. In his written statement the applicant said [name redacted] was not allowed to print anything that worked against the government but it frequently reported arguments between Sinhalese political parties as there was often a lot of fighting. The evidence he gave in his SHEV interview was broadly consistent with that although in contrast to the claim in his statement that he and colleagues were harassed at checkpoints he said in his interview that they were harassed when delivering the paper at night. I do not consider these claims incompatible. The applicant worked for the paper in Colombo both during and after the war; security was tight in the city and many checkpoints remained in place even after the war11 which I consider would have had to be negotiated in the process of distributing the paper. I find this claim overall consistent with the country information although I have some reservations as to whether the applicant, who described his job as ‘machine minder’ and newspaper deliverer, could be said to have a job in journalism as claimed in his written statement or that on that basis he would have attracted the attention of the authorities. Nonetheless, I consider it plausible that the general suspicion that attached to the media may have attached to anybody seen to be involved with a media outlet, particularly one that may have been perceived to be publishing material unfavourable to the government and I accept his claims that he and colleagues were interrogated and verbally abused for this work on occasions including at checkpoints and when delivering papers, and that if they argued back they were beaten.
At [21]-[22], the IAA reasoned (footnotes omitted):
21. I do not, however, accept that he was singled out for attention when out delivering the newspaper two days before he left for Australia as claimed in his SHEV interview and that he was detained at the police station, beaten, questioned about his work and what the paper published and threatened. The applicant’s SHEV application form indicates that he worked for [name redacted] for extended periods of time ([details redacted]). The authorities therefore had ample opportunity over the years, including at checkpoints, to detain and interrogate the applicant because of his work and I do not consider it coincidental that the sole time he claims he was singled out for this treatment happened two days before leaving for Australia. Further, the applicant did not refer to being beaten by the police and interrogated about his work in his previous interview with the Department. As the delegate noted, in that interview (4 September 2012) the applicant referred only to being harassed by the police because of his wife’s ethnicity. The applicant stated in his SHEV interview that he’d forgotten a lot of things and when he arrived from the boat he was in fear. Even if I accept that is the case, I do not consider it plausible that if he had, in fact, been detained at a police station, beaten and interrogated only about a month earlier, he would have been unable to recall such a recent, serious incident when interviewed by the Department. In view of these factors, and my general view about his overall credibility, I am not satisfied that in August 2012 he was taken by the authorities one day when he was delivering the paper, questioned at the police station, beaten and threatened because of what the newspaper was printing.
22. Nor do I accept that if he returns, he is at risk of harm either because of his work for the paper in the past or if he resumes working for the paper. I have accepted that there were incidents in the past when he and colleagues were harassed and verbally abused in connection with their distribution work. However, country information indicates that since the election of the Sirisena government, the situation for the media in Sri Lanka has undergone significant improvements. The government has publicly stated that journalists are free to be as critical of the government as they wish12 and independent media are active in Sri Lanka and express a wide variety of views without restriction.13 The government granted access to a number of news sites which had been blocked under the previous government including TamilNet.14 There were, however, some incidents in 2016 in which journalists reporting on sensitive topics were sometimes subject to arrest, physical violence, harassment, and intimidation, particularly by local police authorities.15 Although I accept that, working for a newspaper, he may have been associated in a broad sense as working with journalists, the applicant is not a journalist and I do not accept his submission that he was imputed with the qualities of a journalist or that he would be in a position to report on sensitive topics which country information indicates may still be problematic. Taking into consideration his role, the period of time that has elapsed since he left Sri Lanka, country information that the new government takes a different view to dissenting voices in the media than did the previous Rajapaksa government and the abolition of surveillance and censorship of media and civil society groups,16 I am not satisfied that the applicant is at risk of harm now or in the immediately foreseeable future on the basis of his work for the [name redacted] newspaper.
The IAA then reasoned as follows at [23]-[25] (footnotes omitted):
23. I consider his claim that there is a low likelihood of a Tamil being employed again in journalism, speculative. Apart from the fact that I do not accept that as a machine minder and deliverer of papers the applicant could be said to have been employed in journalism, the applicant was employed by [name redacted] for around nine years and there is no information before me that he would be unable because of his ethnicity to again be employed in a similar role.
24. The applicant claimed that his wife is often interrogated about his whereabouts by police and government which has raised suspicion about their involvement with the LTTE. I do not accept this claim. I have accepted that the applicant (and his wife) was subjected to routine monitoring and harassment during which I consider the authorities had a more than adequate opportunity to scrutinise the applicant for any possible links to the LTTE. As the delegate noted, if they had had any suspicion about of them, the authorities had (and have) extensive powers under the Prevention of Terrorism Act (PTA) to detain for extended periods of time without charge.17 The applicant was questioned but not detained on suspicion of LTTE activities or mistreated on such occasions. Nor, on my findings, was he ever detained on those occasions when he and colleagues were out delivering the paper. He has had no LTTE involvement and I have not accepted his claims that his wife was a member of the LTTE. He obtained a passport which he used to travel to [redacted] and did not claim to have experienced any problems leaving or re-entering Sri Lanka. The applicant has no LTTE profile and I do not consider it plausible that the authorities would be coming to his home after he left in 2012 and asking questions about his whereabouts. I find the applicant has fabricated this claim.
25. I accept that due to his experiences, including what happened in 2006, the applicant has a strong subjective fear of again being detained and questioned, including by the Criminal Investigation Department (the fourth floor), or perhaps detained and killed. However, I do not accept that at the time he left Sri Lanka he was a person of interest and I am satisfied that the applicant is not at risk of harm if he is returned on the basis of his previous experiences with the authorities.
The Minister submitted that the applicant did not claim that he feared harm from entities or people other than the Sri Lankan authorities and that such a claim did not arise squarely on the materials. In this regard, the Minister drew attention to various parts of the materials in which the applicant’s claims were made, indicating that the focus of the applicant’s claims had involved fear of the authorities.
I accept that this was the focus of the applicant’s claims. However, on balance, I am not persuaded that the applicant’s claims were limited in this manner. At least parts of the applicant’s claims expressed more generally a fear of harm by reference to his “workplace” and “old job”. Parts of the applicant’s submissions to the IAA, which the IAA did not find were precluded from consideration under s 473DD of the Act, referred more generally to people working for the paper having been “attacked in the past”.
I do, however, accept the Minister’s alternative submission, which was that an inference ought not to be drawn that the IAA failed to consider and deal with the applicant’s claims in this regard.
Although a focus of the IAA’s reasoning was the treatment of journalists by the government and the authorities, this was also a focus of the applicant’s submissions and the country information before the IAA. The language used by the IAA suggests that the IAA was considering “the situation for the media” and their associates more broadly, however. In making that assessment, the IAA considered the impact of the change of government. It has not been demonstrated that it was closed to the IAA to have done so, nor that this approach meant that the IAA was confining its analysis to risk from the authorities.
At [22], the IAA concluded that it was “not satisfied that the applicant is at risk of harm now or in the immediately foreseeable future on the basis of his work for the… newspaper”. The generality of this conclusion reflected the generality of the claims that were made by the applicant. Although I have accepted that the applicant’s claims were not limited to risk from the authorities, the applicant accepted that he had not identified with any specificity other actors from whom he would face risk on account of his employment. To the extent that the broader claim was made, therefore, it was made somewhat amorphously. In these circumstances, I have not been persuaded that it was not considered and dealt with in the generality of the conclusion reached by the IAA at [22]: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47].
It follows that the sole ground relied upon by the applicant is unable to succeed.
CONCLUSION
For the reasons given above, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 10 October 2024
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