CDB17 v Minister for Immigration

[2018] FCCA 248

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDB17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 248

Catchwords:
MIGRATION – Immigration Assessment Authority – safe haven enterprise visa – whether the Authority misunderstood the nature of the evidence – whether the Authority made erroneous conclusions – no jurisdictional error identified – application dismissed.

Legislation:

Immigrants & Emigrants Act 1949 (Sri Lanka)

Migration Act 1958 (Cth), ss.5J, 5H, 36, 473CB, 476

Applicant: CDB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1525 of 2017

Judgment of: Judge Street

Hearing date: 5 February 2018

Date of Last Submission: 5 February 2018

Delivered at: Sydney

Delivered on: 5 February 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S Burnett
Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 16 January 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1525 of 2017

CDB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA of the Act on 20 April 2017 affirming the decision of the delegate not to grant the applicant a protection visa.

The delegate’s decision

1. 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 29 September 2016, the delegate found the applicant failed to meet the criteria for the grounds of a visa under the Act.

2. The applicant was found to be of Tamil ethnicity and feared harm by reason of imputed LTTE connections and/or from the Karuna Group and the Sri Lankan authorities and by reason of his illegal departure from Sri Lanka and being a failed asylum seeker.

3. The delegate found the applicant had no profile of interest to the Sri Lankan authorities prior to leaving Sri Lanka and did not find as plausible that the applicant’s siblings have been harassed and targeted on account of the applicant. The delegate did not accept the applicant was imputed with an LTTE political opinion on account of his familial links to his uncle, who was an LTTE member.

4. The delegate did not accept the applicant was targeted by the Karuna Group on suspicion of LTTE involvement. The delegate did not accept the applicant’s life was in danger on account of being a TNA supporter. The delegate did not accept the applicant was of interest to the Sri Lankan authorities prior to his departure from Sri Lanka. The delegate did not accept the applicant’s siblings had been targeted on account of him since he left Sri Lanka.

The Authority’s decision

1. On 7 October 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information. The Authority’s letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to provide new information and to provide submissions.

2. The Authority, in its reasons, referred to submissions that were provided to the Authority on 25 October 2016 referring to country information that was before the delegate and containing arguments responding to issues arising from the delegate’s assessment. The Authority found that the submissions did not constitute new information and had regard to the same.

3. The Authority, in its reasons, identified the background for the visa application and having regard to the material referred under s 473CB of the Act and to the applicant’s submissions dated 25 October 2016. The Authority summarised the applicant’s claims for protection and set out the relevant law.

Refugee assessment

1. The Authority accepted as plausible that the applicant came to the adverse attention of the Karuna Group and found this would have occurred in 2008 because the applicant advised in the safe haven enterprise visa (“SHEV”) interview, that this interaction occurred prior to his mother’s death in September 2008.

2. The Authority made reference to the applicant travelling to Singapore and Malaysia in 2009 because the Karuna Group had started to kidnap and recruit young people. The Authority referred to the applicant’s passport being issued in April 2009, and that, according to his SHEV application, he was outside Sri Lanka from September 2009 until January 2010. The Authority records that the applicant had no difficulty in returning to Sri Lanka via Colombo Airport and was not questioned by the Sri Lankan authorities on return.

3. The Authority accepted that the applicant worked as a personal driver for a distant relative who is a member of the Municipal Council in Kalmunia and accepted that person was associated with the Tamil National Alliance (“TNA”), and, on that basis, found it plausible that the applicant distributed flyers and posters in July 2012.

4. The Authority referred to the applicant’s claim that he came to adverse attention of armed men in July 2012. The Authority identified the interviewing officer raising inconsistencies with the applicant in respect of that his evidence concerning the number of men who had beaten the applicant.

5. The Authority found the applicant’s evidence surrounding his and his brother’s claimed interactions with armed men or the Karuna Group in July 2012 to be unconvincing. The Authority referred to the applicant changing evidence in relation to the harm he experienced, the number of people who were travelling with him, the number of armed men involved, and the inconsistencies surrounding the level of his brother’s interactions with the Karuna Group following this claimed event to indicate that the applicant was not recalling a genuine personal experience.

6. The Authority concluded the applicant had fabricated the claimed events of July 2012 in order to enhance his protection application. The Authority did not accept the applicant had come to the adverse attention of armed men in July 2012 as claimed. The Authority did not accept the applicant’s brother was stopped and/or threatened by the members of the Karuna Group as claimed. The Authority rejected the applicant’s associated claims that following these events, his friends who worked for the TNA, were beaten or that armed men visited his home at night. The Authority rejected the applicant’s claims that since he departed Sri Lanka, his brother and/or his sister had come to the adverse attention of the Karuna Group, or any other group or persons on account of the applicant’s involvement with a the distant relative as a driver or the TNA.

7. The Authority was not satisfied the applicant faced a real chance of serious harm due to his father’s prior LTTE links, now or in the foreseeable future. The Authority was not satisfied the applicant faces a real chance of harm, due to his interactions with the Karuna Group in mid-2008 or at any other time now or in the reasonably foreseeable future.

8. The Authority referred to the applicant’s ethnicity and, whilst finding the applicant may encounter a degree of social societal discrimination, was not satisfied this would constitute serious harm. The Authority found the applicant is not a person that faces a real chance of serious harm by virtue of his Tamil ethnicity or on account of any actual or imputed LTTE connections, including familial connections.

9. The Authority was not satisfied the applicant faced a real chance of serious harm due to his Tamil ethnicity, his imputed LTTE profile, or for any other reason upon his return to Sri Lanka now or it the reasonably foreseeable future.

10. The Authority referred to the applicant’s illegal departure. It was not satisfied there was a real chance the applicant would be harmed by Sri Lankan authorities by virtue of his return as a Tamil asylum seeker.

11. The Authority was not satisfied that the imposition of a fine, surety or guarantee would, of itself, constituted serious harm. The Authority referred to the Immigrants & Emigrants Act 1949 (Sri Lanka) being laws of general application that applied to all Sri Lankans equally and are not discriminatory on their terms and were not applied in a discriminatory manner or selectively enforced. The Authority was satisfied that any process or penalty the applicant may face a return to Sri Lanka because of his illegal departure would not constitute persecution for the purpose of the Act, and the Authority found the applicant does not face a real chance of serious harm from the Sri Lankan authorities due to his illegal departure, travel to Australia, or for any other reason.

12. The Authority, having considered the applicant’s claims individually and cumulatively found the applicant does not have a well-founded fear of persecution under the meaning of s 5J. The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1). The Authority then found that the applicant failed to meet the criteria under s 36(2)(a).

Complementary protection assessment

1. The Authority was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia there is a real risk the applicant would suffer significant harm. The Authority found the applicant does not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. A Registrar of the Court on 24 August 2017 made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The only document filed was an amended application. The Court granted leave to the applicant to rely upon the amended application at the commencement of the hearing.

Nature of the hearing

1. At the commencement of the hearing the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision is affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that if satisfied that the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the amended application would be dismissed with costs.

2. The Court explained it would have identified the evidence and then hear submissions from the applicant and then hear submission from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Submissions from the bar table

1. From the bar table the applicant asserted that the Authority had failed to address his claim in respect of fear of harm from the Karuna Group. As the reasons of the Authority referred to above clearly identify, the Authority considered and made adverse findings in relation to the applicant’s claims concerning the Karuna Group and involvement with the LTTE. Those adverse findings by the Authority were open, for the reasons given by the authority, and cannot be said to be unreasonable or illogical. The Authority made adverse findings dispositive of the applicant’s claims. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds of the application

1. The grounds of the amended application are as follows:

   1. The IAA erred in finding the Applicant does not meet S 5H (1) or 36 (2) (a) or 36 (2) (aa) of the Migration Act;

   2. The IAA erred in not being satisfied that the applicant faces a real chance of serious harm due to his father's imputed links with the LTTE now or in the foreseeable future;

   3. The IAA erred in not being satisfied that the applicant faces a real chance of serious harm due to his Tamil ethnicity, his imputed LTTE profile, or for any reason upon his return to Sri Lanka now or in the foreseeable future;

   4. The IAA erred in finding the Applicant does not have a well-founded fear of persecution within the meaning of S 5J;

   5. The IAA erred in finding the Applicant is not of interest to the Sri Lankan authorities, the Kamna Group or any other group or persons due to his imputed links to the LTTE (including familial links);

   6. The IAA erred in finding the Applicant does not face a real chance of harm in connection with his interaction on the basis that finding the Applicant is not of interest to the Sri Lankan authorities, the Karuna Group or any other group or persons due to his imputed links to the LTTE (including familial links);

   7. The IAA erred in concluding the applicant does not face a real chance of harm in connection with his interactions with the Karuna Group in mid-2008, his involvement with Amirthalingam or the TNA, or for any reason including in connection with him being a returning asylum seeker;

   8. The IAA erred in misunderstanding the nature of the evidence upon which the IAA based its conclusions rendering the conclusions erroneous and unsupported by the evidence as follows:

   a. The IAA found the applicant changed his evidence about the number of people he was travelling with and the number of armed men involved (para 18), when such a finding was incorrect in that the applicant did not give conflicting evidence in respect of these points;

   b. The IAA concluded (para 18) that the applicant fabricated the claimed events of July 2012 in order to enhance his application. The IAA recounted as a basis for that conclusion that the applicant had claimed he was taken by the LTTE and there was an attempt by the LTTE to recruit or conscript him but that the applicant later stated there had never been an attempt by the LTTE to recruit or conscript him; however the applicant had referred to the Karuna group and not the LTTE;

   c. The IAA stated (para 21) 'There is no information before me that indicates that indicates that the applicant had any further interactions with the Karuna group following that incident [mid-2008] and I have rejected the applicant's claims that he and his family came to the adverse attention of the Karuna group between July 2012 and September 2012.', when such rejection was not in accordance with the evidence and / or was invalid in light of the invalid conclusion in b above.

   9. The IAA erred in finding the Applicant does not face a real risk of suffering significant harm;

   10. The IAA failed to give the applicant the benefit of the doubt where the IAA found evidence otherwise unconvincing;

   11. The IAA erred in affirming the Delegate's decision not to grant the applicant a protection visa;

   12. The IAA erred in not granting the applicant a protection visa.

   I am the Applicant. I am self-represented at this stage. I have not retained a lawyer and barrister to represent me in this court yet. I propose to seek further legal advice once I have received the transcript of my protection visa and entry interview CDs.

Consideration

Ground 1

1. In relation to Ground 1, the adverse finding by the Authority in respect of the applicant’s claims were open for the reasons given by the Authority as summarised above. The disagreement with the adverse finding does not identify any jurisdictional error. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. On the face of the material before the Court by the sending of the letter and giving the applicant the opportunity to put on new information and submissions the Authority complied with its obligations of procedural fairness in the conduct of the review.

2. There is no basis to find that the Authority erred in its adverse findings as to the applicant’s credit and those adverse findings were open for the reasons given by the Authority. The reasons referred to the inconsistencies which were logical and cannot be said to be trivial or insignificant in the assessment of the applicant’s credit. No jurisdictional error is made out by Ground 1.

Ground 2

1. Ground 2, in substance, reflects a disagreement with the adverse findings by the Authority and does not identify any jurisdictional error.

Ground 3

1. Ground 3 reflects a disagreement with the adverse findings by the Authority and does not identify any jurisdictional error.

Ground 4

1. Ground 4 reflects a disagreement with the adverse findings by the Authority and does not identify any jurisdictional error.

Ground 5

1. Ground 5 also reflects a disagreement with the adverse findings by the Authority. Those adverse findings were open for the reasons given by the Authority as summarised above. Ground 5 fails to make out any jurisdictional error.

Ground 6

1. Ground 6 reflects a disagreement with the adverse findings made by the Authority. Those adverse findings were open for the reasons given by the Authority as summarised above. Ground 6 fails to make out any jurisdictional error.

Ground 7

1. Ground 7 reflects a disagreement with the adverse findings made by the Authority. Those adverse findings were open to the Authority for the reasons given by the Authority as summarised above. Ground 7 fails to make out any jurisdictional error.

Ground 8

1. Ground 8 reflects a disagreement with the adverse credibility findings made by the Authority. The Authority provided logical and reasonable reasons in support of its adverse credibility findings as summarised above. In particular, the Authority referred to the change of the applicant’s evidence in relation to the alleged incident in July 2012 and summarised the relevant inconsistencies. In that regard the adverse findings by the Authority were open for the reasons given by the Authority as summarised above and cannot be said to be unreasonable or illogical. No jurisdictional error is made out by Ground 8.

Ground 9

1. Ground 9 reflects a disagreement with the adverse findings made by the Authority. Those adverse findings were open for the reasons given by the Authority as summarised above. Ground 9 fails to make out any jurisdictional error.

Ground 10

1. Ground 10 takes issue with the adverse findings by the Authority. The adverse findings were open for the reasons given by the Authority. No jurisdictional error is made out by Ground 10.

Ground 11

1. Ground 11 reflects a disagreement with the adverse outcome in respect of his application for a protection visa. The adverse findings were open for the reasons given by the Authority. Ground 11 fails to make out any jurisdictional error.

Ground 12

1. Ground 12 also reflects a disagreement with the adverse findings. The reasons given for the adverse findings were open and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by Ground 12.

Final paragraph

1. In the final paragraph of the amended application an application for an adjournment was advanced by the applicant. The last paragraph of the applicant’s application was not supported by any evidence and does not identify any basis upon which a jurisdictional error could be made out. The applicant has had a fair opportunity to put on material by reason of the orders made by the Registrar, and the only material put on was the amended application.

2. In those circumstances the last paragraph is not a proper basis upon which any adjournment could be said to be warranted, and the Court was not satisfied an adjournment was warranted in the interests of the administration of justice.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  12 March 2018