CCP17 v Minister for Immigration

[2020] FCCA 588

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCP17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 588

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Immigration Assessment Authority (Authority) affirming decision not to grant a Safe Haven Enterprise visa – whether the Authority failed to consider relevant considerations – whether there was before the Authority new information which the Authority did not consider – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36(2)(aa), 473DC, 476

Applicant: CCP17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1516 of 2017

Judgment of: Judge Manousaridis

Hearing date: 12 March 2020

Date of Last Submission: 12 March 2020

Delivered at: Sydney

Delivered on: 20 March 2020

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Ms G Ng of Australian Government Solicitor

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1516 of 2017

CCP17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Sri Lanka, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).

Claims for protection

1. The applicant’s claims for protection, as stated in a statutory declaration that formed part of his application for SHEV, are as follows:[1]

   [1] CB79-85

   a)The applicant is a Tamil and a Catholic. He was born in India to parents who were Sri Lankan Tamil refugees in India.

   b)The applicant’s parents fled to India in 1989 because his father was suspected of being a member of a Tamil Terrorist group known as “TELO”. The Liberation Tigers of Tamil Eelam (LTTE) were after the applicant’s father.

   c)The applicant’s parents returned to Sri Lanka in 2002. The applicant’s parents remained in a particular district until a month in 2012 when they fled. They did so one month after the applicant fled Sri Lanka. The applicant’s parents reside in an Indian refugee camp.

   d)The applicant worked as a driver transporting seafood. He travelled daily to Jaffna district. He worked 7 days a week. The fish collected would be dropped off in Mannar district from which they were transported to Colombo.

   e)Whenever the applicant travelled by road with his load of fish he would be targeted by Sri Lankan authorities. They asked the applicant to do several favours for them, such as purchasing alcohol, cigarettes, and betel leaf. They often extorted money from the applicant. The authorities targeted the applicant in this way until he fled Sri Lanka.

   f)In June 2012 influential Muslim men who were connected to a local politician threatened to harm Tamil fishermen in the area. The Muslim men destroyed “our vehicle (cooler van) and the Vaadi (fishing hut)”. The Muslim men claimed the fishing area used by Tamil fishermen belonged to them. When the applicant reached the area the applicant saw several Muslim men destroying fishing huts belonging to Tamils. The applicant’s uncle’s fishing hut was completely destroyed.

   g)The applicant decided to flee Sri Lanka after this incident. The police did not interfere when the Muslim men were destroying the Tamil fishing huts.

   h)The applicant’s parents fled Sri Lanka because the CID (that is, the Criminal Investigation Division) came to the applicant’s parents’ home in search of the applicant and his brother. The applicant believed the CID went to his parents’ house because they would have learnt “that we departed Sri Lanka illegally”.

   i)The applicant fears he is at risk of being seriously harmed by the Muslims who are influential and politically connected because the applicant works in the coastal area and the Muslims claim the land belongs to them.

   j)The applicant believes he would be jailed for a long period because he fled Sri Lanka illegally; that while in prison he will be harmed by the authorities and Sinhalese inmates; and that the authorities will suspect the applicant is an LTTE member because he is a Tamil who originates from the north of Sri Lanka.

2. Before the delegate the applicant made a number of claims he did not make in his statutory declaration. I will note in passing some of these when I set out the Authority’s reasons. I mention here what the Authority refers to the applicant’s brother’s “grease man incident”.[2] As described by the Authority, the applicant’s claimed “they were trying to prevent the grease men coming into their village”, his brother was taken into the Sri Lankan Army (SLA) camp and beaten, and, for that reason, the applicant’s brother came to Australia. The applicant further claimed that, after his brother was released, the applicant’s parents arranged for the applicant’s brother to leave, after which the CID came to search for the applicant’s brother; and the CID looked for the applicant’s brother, even though he had been released, to show the SLA was not involved in the grease man incident. The applicant further said the CID had a list of people and they would go around and arrest them again, that this occurred five or six times, and, on one occasion, the applicant himself was arrested and held at his home for about half an hour by four people.[3]

   [2] CB150

   [3] CB150, [22]

Authority’s reasons

1. The Authority:

   a)accepted as plausible the applicant’s father was a member of the TELO and that, on the basis of country information, this brought him into conflict with the LTTE prompting the applicant’s parents to leave Sri Lanka;[4] but it did not accept the applicant’s father’s political involvement with the TELO places the applicant at risk;[5]

   [4] CB146-147, [12]

   [5] CB147, [12]

   b)did not accept the applicant experienced discrimination amounting to persecution because he was born in India, or because he would be suspected of LTTE affiliation due to where he was born;[6]

   [6] CB147, [13]

   c)was not satisfied that, whenever the applicant travelled, he would be targeted by authorities, asked to do favours, and money was extorted from him; and that is because the applicant had given inconsistent evidence about this;[7]

   [7] CB148, [15]

   d)accepted as plausible a claim the applicant made before the delegate, but not in his written statement, that, while he was driving his seafood van, the applicant was on occasion stopped at checkpoints, asked to hand over seafood, and that, on one occasion, he was slapped and was threatened with being shot; and that the applicant’s ethnicity played a part;[8]

   [8] CB148, [16]

   e)was satisfied the applicant is not at risk of serious harm from Muslim fishermen as a result of a fishing dispute between Tamils and Muslims; and that, when before the delegate, the applicant said he withdrew that claim;[9]

   [9] CB149, [19]

   f)did not accept the claim the applicant made before the delegate, but not in his written claim, that the SLA or the Sri Lankan navy (SLN) damaged the applicant’s vehicle and assaulted him; and that is because the Authority found the claim was first made before the delegate, the evidence the applicant gave to the delegate was repetitive and lacking in detail, and it is not supported by country information;[10]

   [10] CB149, [20]

   g)did not accept the applicant’s claim that police did not interfere when huts belonging to Tamil fishermen were destroyed by Muslim men who were said to be politically connected; and that is because there was country information relating to the incident which showed police received 17 complaints that they investigated;[11]

   [11] CB149, [20]

   h)accepted as plausible the applicant’s uncle was involved in a civil case for damages against the Muslim fishermen arising from the incident concerning the destruction of the huts of Tamil fishermen, but, for reasons the Authority gave later, it was not satisfied that gives rise to a real chance of harm for the applicant on his return to Sri Lanka;[12]

   [12] CB150, [21]

   i)did not accept the CID looked for the applicant or his brother, or that they were of any interest to the authorities at the time they left Sri Lanka, because the applicant’s evidence about why the CID was looking for him and his brother had changed from his written claim to what he claimed before the delegate, and there were a number of inconsistencies in the timing of the events the applicant referred to before the delegate;[13]

   [13] CB150, [23]

   j)was not satisfied the applicant’s brother was involved in a grease man incident;[14]

   [14] CB151, [24]

   k)did not accept that the applicant would be imputed to have LTTE affiliations only because he resided in a Tamil area formerly controlled by the LTTE;[15]

   [15] CB151, [25]

   l)was satisfied that country information indicates the situation in Sri Lanka has improved for Tamils, and continues to do so;[16]

   [16] CB152, [28]

   m)found there was no evidence that, on return to Sri Lanka, the applicant would be unable to resume working as a driver;[17]

   [17] CB152, [28]

   n)found there is not a real chance the applicant will be subjected to discrimination amounting to serious harm in the reasonably foreseeable future because he is a Tamil;[18]

   [18] CB152, [28

   o)found that, on his return to Sri Lanka:

   i)the applicant will be charged with the offence of illegally departing Sri Lanka;[19]

   ii)he will be detained pending an appearance before a magistrate;[20]

   iii)if he pleads guilty the applicant will be granted bail;[21]

   iv)there is not a real chance the applicant will be imprisoned for the offence of departing Sri Lanka illegally, but will instead be fined, and the imposition of a fine will not amount to serious harm;[22]

   v)it is possible the applicant could spend 24 hours in custody at the airport, and a further period on remand in prison pending bail if the applicant arrives on the weekend; and that prison conditions in Sri Lanka are poor because of overcrowding and a lack of sanitary and other facilities;[23]

   vi)the law under which the applicant will be charged and held is a law of general application, and is not applied in a discriminatory manner;[24]

   vii)considered speculative the submissions the applicant’s representative made that the applicant would be subject to repeat visits by the authorities, and, therefore, it is possible the applicant could be questioned or interrogated several times, and that such repeat visits could expose the applicant to convention-related persecutory treatment due to his medical condition;[25]

   viii)found that country information indicated that a returning asylum seeker from a western country will not in itself result in harm;[26] and

   p)did not accept that a number of the applicant’s attributes, when considered together, including the applicant’s uncle’s being named in a court document relating to a claim for damages arising out of the damage to the Tamil fisherman huts, give rise to a risk of serious harm.[27]

   [19] CB153, [34]

   [20] CB153, [34]

   [21] CB153, [35]

   [22] CB153-154, [35]

   [23] CB154, [36]

   [24] CB154, [37]

   [25] CB154,[38]

   [26] CB154, [39]

   [27] CB154-155, [40]

2. On the basis of these findings the Authority concluded the applicant was not a “refugee” within the meaning of s.5H of the Act.

3. The Authority then considered whether the applicant satisfied the complementary protection criterion provided for under s.36(2)(aa) of the Act. The Authority repeated many of the findings it had already made when considering whether the applicant was a “refugee”, and also referred to additional evidence about prison conditions in Sri Lanka. The Authority concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.[28]

   [28] CB155-156, [43]-[46]

Grounds of application

1. The application contains the following ground:

   1.Ground 1 – The IAA committed legal error as it failed to consider relevant considerations and new information that was provided to the authority.

   Particulars

   a.More details would be provided upon receipt of the court book.

2. A court book has been filed, but the applicant provided no further particulars.

3. At the hearing before me I invited the applicant, who is not legally represented, but was assisted by an interpreter, to make submissions about why the Authority’s decision should be set aside. The applicant said that everyone says that if he returns to Sri Lanka, nothing will happen to him; but if he returns to Sri Lanka he will be harmed. The applicant asked rhetorically how does the Authority know nothing will happen to him. The applicant also submitted that if the Authority wanted to understand the law prevailing in Sri Lanka, the Authority needed to go to Sri Lanka.

4. I take what the applicant said to convey two submissions. One is that the Authority found nothing will happen to the applicant if he returns to Sri Lanka; and the second is that it was not open to the Authority to find the applicant would not face a serious risk of harm because of the matters on which he relied for his claim for protection. I do not accept these submissions. The broad question the Authority addressed is whether the applicant would face a real chance of significant or serious harm now or in the reasonably foreseeable future if he were to return to Sri Lanka for any one or more of the grounds the Authority understood the applicant claimed he feared he would face harm if he were to return to Sri Lanka. The Authority considered that question by identifying the reasons for which the applicant claimed he feared harm; in relation to each of those reasons the Authority identified the relevant evidence, and gave reasons for not accepting the applicant faced a real chance of harm.

5. I directed the applicant to the ground contained in the application. I asked him whether he could identify the consideration the ground claims the Authority failed to take into account. The applicant said the Authority did not take into account he would have no protection in Sri Lanka. I do not accept that submission. As is apparent from my summary of its reasons, the Authority identified and considered each of the claims the applicant made.

6. I also asked the applicant whether he could identify the new information the ground claims was provided to the Authority but which the Authority did not consider. The applicant said that after his brother left Sri Lanka the applicant faced a lot of problems. That appears to be a reference to the information the Authority considered under the heading “Brother’s grease man incident”.[29] It is the case that the applicant’s representative provided to the Authority submissions.[30] The submissions did refer to information the Authority considered to be “new information” within the meaning of s.473DC, but the information consisted of what the representative described as the “more recent ICG report of May 2016”.[31] The submissions did not refer to information that relates or appears to relate to the applicant’s brother.

   [29] CB150

   [30] CB136

   [31] CB144, [3]

7. The ground in the application, therefore, discloses no jurisdictional error.

Disposition

1. The applicant has not succeeded on the ground and submissions on which he relies. I propose, therefore to order that the application be dismissed.

2. I heard submissions as to costs at the hearing. The Minister submitted that costs should follow the event, and that if the Minister succeeds he would seek an order that the applicant pay the Minister’s costs set in the amount of $5,000. The applicant made no submissions in relation to costs.

3. Costs should follow the event; and I am satisfied $5,000 is a reasonable assessment of the Minister’s costs. I therefore propose to order that the applicant pay the Minister’s costs set in the amount of $5,000.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  20 March 2020