CDJ19 v Minister for Immigration
[2019] FCCA 3686
•16 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDJ19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3686 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | CDJ19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1311 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr D Clarke of Clayton Utz |
INTERLOCUTORY ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Pursuant to rule.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1311 of 2019
| CDJ19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 1 May 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed on 9 December 2019.
On 9 August 2017 the Authority affirmed the decision not to grant the applicant a SHEV.[1] On 26 March 2019 this Court by consent quashed the decision of the Authority and directed the Authority to determine the matter according to law.
[1] Safe Haven Enterprise Visa
Applicant’s claims
The applicant’s claims before the Authority were summarised in detail at Decision Record (DR) [19],[2] although briefly stated are that he fears harm in Sri Lanka as a Tamil originally from the north and because of his past association with the Liberation Tigers of Tamil Eelam (LTTE). He claims that he has scars from shelling and other incidents which may attract adverse attention. He fears harm as a failed asylum seeker who departed Sri Lanka illegally. He fears harm from the authorities and the Tamil Makkal Viduthali Pulikal (TMVP) who work with the Sri Lankan security forces.
[2] Court Book (CB) 177.
The applicant claimed to fear harm in Sri Lanka because of past association with the LTTE. The applicant claimed that he had told the LTTE in 1997 that he was leaving the organisation and was consequently subjected to punishment. The applicant also claimed that the Sri Lankan armed forces were searching for him, have an open arrest warrant on him, and that if he were returned to Sri Lanka he would be arrested, face torture and be in great danger.
The applicant provided submissions to the Authority through his agent, on 19 December 2016,[3] 24 January 2017[4] and 7 April 2019. These submissions were accompanied by country information, a photograph of the applicant and a court summons document.
Decision of the Authority
[3] CB 121.
[4] CB 126.
Information before the Authority
In addition to the material received under s.473CB of the Migration Act 1958 (Cth) (Migration Act), the Authority had regard to the submissions of the applicant and his representative on 19 December 2016, 24 January 2017 and 7 April 2019, as well as the most recent DFAT[5] country report on Sri Lanka published on 23 May 2018.[6]
[5] Department of Foreign Affairs and Trade.
[6] DR [4]-[7], CB 174. The Authority also had regard to a Freedom from Torture report, reports from the International Truth and Justice Project, as well as U.S. Department of State reporting of human rights violations.
The applicant provided new information with his 19 December 2016 submission to the Authority, being his LTTE fighter name and membership number and that he returned his cyanide capsule and metal piece. Further new information was the photograph of the applicant in what he claims is an LTTE uniform.[7] The Authority noted that it must not consider any new information from an applicant unless satisfied there are exceptional circumstances to justify considering the new information, and noted that in this case none had been advanced and none were apparent.[8]
[7] DR [8], CB 174.
[8] DR [9], CB 175.
The Authority separately noted that there were not exceptional circumstances to justify considering the photograph provided, and also noted that it had accepted the applicant’s claim that he joined the LTTE around 1986/1987, and that he was recruited as a fighter and trained in combat and weapons.[9]
[9] DR [11], CB 175.
The applicant sent an email to the Authority in which he stated he had attached a “certified copy” of a new document. The document purports to be a translation of a Summons/Notice to an Accused Person and is dated 19 January 2018. The Authority noted that:[10]
The Practice Direction for Applicants, Representatives and Authorised Recipients dated December 2018 (the Practice Direction) advises Applicants that all documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters and that both the documents and the translations should be provided. The original Tamil language version was not provided, either as a “certified copy”, original, or an uncertified copy. Nor is the identity or accreditation of the translator provided.
[10] DR [16], CB 176.
The Authority noted some concerns regarding the date that this document was produced,[11] and noted that it was not apparent how this incident related to the applicant’s claims.[12] Accordingly, the Authority was not satisfied that this document contained credible personal information, and the Authority did not consider it.[13]
[11] DR [17], CB 176-177.
[12] DR [18], CB 177.
[13] DR [18], CB 177.
Factual findings
The Authority accepted the applicant’s claims of his involvement with the LTTE during the period of 1986 and 1987,[14] and that he fled the Northern Province of Sri Lanka during an attack that took place as part of fighting in that area between the LTTE and the Indian Peacekeeping Force. The Authority also accepted as plausible that the LTTE subsequently took him back, and relocated him to Jaffna where he undertook surveillance for the LTTE between 1986 and 1987.[15]
[14] DR [22], CB 179.
[15] DR [21]-[22], CB 178-179.
The Authority found some implausibility in the applicant’s account of travel to Colombo in 1987 in respect of his reasons for travelling, his activities in Colombo and how long he remained there. The Authority noted difficulty in accepting the applicant’s claim that he was relocated at 16 years of age to Colombo to undertake surveillance, based on the applicant’s lack of knowledge of, or links to, the city, as well as the impediment arising from the applicant’s Tamil language in the Sinhalese-dominated Colombo.[16] On that basis, the Authority did not accept that the applicant was sent by the LTTE to Colombo to conduct surveillance, and concluded that the applicant’s relocation was due to difficulties he had experienced in the north.[17]
[16] DR [24], CB 179.
[17] DR [24], CB 179.
The Authority expressed concerns with the applicant’s claim that while hiding in Colombo, an LTTE member identified him and told him to return. This concern was on the basis that such a claim was inconsistent with aspects of the applicant’s submissions including a lack of specificity surrounding addresses at the time, employment history and declared residence information.[18]
[18] DR [25], CB 179.
Regarding the applicant’s claim that he was relocated to Batticaloa with a new identity, the Authority did not accept that the applicant was a member of the LTTE after leaving the North in 1987, nor that he had an association with the organisation while in Colombo.[19]
[19] DR [26] - [27], CB 180.
The Authority accepted that the applicant married in 1997, and that the applicant was living in Batticaloa from this time while working for businesses operated by the LTTE. The Authority did not accept, however, that the applicant was a member of the LTTE during this time.[20]
[20] DR [28] - [29], CB 180.
The Authority accepted the applicant’s claim that he was threatened by members of the LTTE following the split in the LTTE and that he stayed with relatives after being spoken to by soldiers. The Authority did note, however, that the applicant was not arrested or charged with any offences.[21] The Authority also did not accept the applicant’s account of finding buried weapons in 2005/2006 while ploughing his wife’s cousin’s paddy field.[22]
[21] DR [30], CB 180.
[22] DR [31], CB 181.
The Authority was willing to accept that his cousin went missing around 2009,[23] and that around 2005/2006 the applicant and his family were displaced.[24]
[23] DR [32], CB 181.
[24] DR [33], CB 181.
The Authority did not accept the applicant’s account of difficulties experienced in Batticaloa from 1997, due to contradictions, implausibility as well as overly generalised statements made in respect of harm. The Authority also refused to accept the applicant’s account of being kidnapped, or that he had paid a member of the LTTE after being asked to do so while working in an LTTE-operated bar.[25]
[25] DR [34] - [35], CB 181-182.
The Authority found it plausible that the applicant attended a public meeting conducted by authorities in 2009 following the end of the civil war, however did not accept that the applicant was of any further interest to authorities, or that his recount of an incident where authorities came to his home/shop in 2009 was credible.[26] The Authority found the applicant’s evidence of subsequent visits by authorities, as well as being of ongoing interest to authorities, to be disjointed, inconsistent with country information and implausible. On this basis, the Authority did not accept this claim.[27]
[26] DR [36] - [38], CB 182.
[27] DR [39] - [41], CB 183.
The Authority accepted that the applicant departed Sri Lanka illegally, and that the applicant had scars.[28]
[28] DR [42] - [43], CB 183.
The current proceedings
These proceedings began with a show cause application filed on 29 May 2019. The applicant continues to rely upon that application. There are two grounds in it:
Ground One: Jurisdictional Error. The Immigration Assessment Authority fell into jurisdictional error in reaching its conclusion that the Applicant did not face harm from his [past] LTTE association by adopting an illogical process of reasoning in circumstances where the conclusion reached by the Authority was simply not open on the evidence. In the alternative, there is no logical connection between the evidence and the inference or conclusion drawn by the Authority.
Particulars
a)The Applicant claimed to fear harm as a Tamil from the north and because of his past association with the LTTE. [Paragraph 19]
b)The Applicant further claimed that in 1997, he told the LTTE that he was leaving the organisation and was consequently subjected to punishment. [Paragraph 19]
c)The Authority accepted that the Applicant was an LTTE member between 1986 and 1987 but rejected that he had sought to leave the LTTE as claimed. [Paragraph 22]
d)There was no evidence before the Authority from which it could be reasonably inferred that the Applicant ceased to be an LTTE member. The Authority’s conclusions proceeded on the erroneous assumption that the Applicant ceased to be an LTTE member after 1989.
e)The Sri Lankan Arm Forces also searching for me and they have open arrest warrant on me.
(f)If I been send back they will arrest me in the Airport itself and I may face all kind of torture. My life will be in great danger.
I have given the Warrant issued by the Court, certified copy to the Immigration Assessment Authority.
Ground Two: Jurisdictional error. The Authority fell into jurisdictional error by an erroneous construction of s473DD in that it adopted an unduly narrow construction of s473DD. In doing so, it constructively failed to exercise its jurisdiction under s473DD
Particulars
a)In his submission dated 19 December 2016, the Applicant provided new information including a photograph of the Applicant in an LTTE uniform. [Paragraph 8]
b)The Authority accepted that the new information was credible personal information. [Paragraph 9]
c)The Authority concluded that the new information was not of significant value in supporting the Applicant’s claims in circumstances where the issue of whether the Applicant remained an LTTE member was critical and subsequently, became fatal to his claims. [Paragraph 11]
(errors in original)
The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book which was augmented and corrected on 5 December 2019. Exhibit R1, which I also received, is a document inadvertently omitted from the court book.
Only the Minister filed pre-hearing written submissions in accordance with orders made by the Registrar. I invited oral submissions from the applicant this afternoon. He told that he had been in immigration detention for one and a half years, and upon release, was in receipt of Centrelink benefits. He stated that once he obtained the right to work, he commenced working and has not claimed any further Centrelink benefits. This was, as I understand it, intended to prove that he is a productive member of society.
The applicant told me that he has made tentative arrangements with a female barrister, apparently with the name of Fisher. The applicant has paid her $1,500, but is required to pay an additional $3,500 in order for her to act for him. I indicated that it was a pity Ms Fisher had not attended today’s show cause hearing. The applicant submitted that Ms Fisher had told him that he has a good case and that she would attend next time. Unfortunately, the perceived strength of the applicant’s case is not reflected well in the show cause application.
In his submissions in reply, the applicant referred to the photograph reproduced at page 128 of the court book. He told me that the picture was taken in or around 1992 when he was about 20 years old. He told me that the photograph was taken as a record of his involvement with the LTTE which could be displayed in the event of his death.
The applicant also told me that a person he described as a lawyer had assisted him before the Authority. The applicant stated that the lawyer had not told him about the Authority decision, and he only came to know of it months later when dealing with his Medicare card, and found out about the cessation of his bridging visa. As I explained to the applicant, that makes no sense. The show cause application to the Court and the supporting affidavit attaching the Authority decision were filed on 29 May 2019, only 28 days after the Authority decision.
There is no substance to the first ground of review advanced. The Authority engaged in a rational consideration of the applicant’s claims and evidence. I agree in that regard with the Minister’s submissions.
The Authority had regard to a number of sources of information, including the relevant country information, as well as the UNHCR[29] Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, released in 2012. Relevantly, the Authority noted at DR [53][30] that the security situation has eased since the release of this report, and more recent guidance from the UK Home Office demonstrates an improved security situation more broadly. Both of these reports were said to highlight more conciliatory and cooperative political attitudes in post-conflict Sri Lanka.[31]
[29] United Nations High Commissioner for Refugees.
[30] CB 186-187.
[31] DR [53], CB 186.
The Authority also had regard to reports of human rights violations in Sri Lanka, and the arrest or questioning of Tamils on return to Sri Lanka.[32] In doing so, the Authority gave weight to the 2016 UK Home Office report, which noted that individuals of interest to authorities are generally those who have a significant role in relation to post-conflict Tamil separatism or renewal of hostilities. Relevantly, the Authority was not satisfied that the applicant had been so involved as to be of interest in the manner claimed.[33]
[32] DR [55], CB 186-187.
[33] DR [55], CB 186-187.
The Authority also considered the fact that the applicant had left Sri Lanka illegally and would thus be subject to the Immigrants and Emigrants Act 1949 on return. The Authority gave weight to the DFAT reports, which noted that such returnees would be subject to a fine, rather than any custodial sentence or other mistreatment.[34]
[34] DR [57]-[60], CB 188.
It is apparent that the Authority took into account various sources of country profile information, and applied this information to the applicant’s claims. I accept that the Authority engaged in a reasonable engagement with the claims and the material available, and came to the rational, intelligible conclusion, based on the evidence, that the applicant did not meet the requirements of the definition of refugee under the s.5H(1) of the Migration Act, and was not of sufficient interest as to face a real chance of harm in accordance with s.36(2)(a).
The second ground concerns an alleged erroneous construction of s.473DD of the Migration Act. The issue is the photograph of the applicant appearing in the court book. The applicant contends that the Authority adopted an unduly narrow construction of s.473DD in considering the photograph. The Authority’s reasons in relation to the rejection of the photograph are set out at [11] and [12] of its reasons:
The delegate did not accept that the applicant was recruited by the LTTE and his representative requests that the photograph provided to the IAA be taken into account as evidence in support of his claim. I have considered the corroborative value of the photograph. The photograph is of low quality; it is a head shot only against a static background. While it depicts the wearer in camouflage clothing apart from this clothing there is no contextual information such as banners or insignia in the photograph which evidences the applicant as an LTTE member/fighter. It is important to acknowledge the difficulty assessing the age of a person from a photograph, but the applicant claims to have been an LTTE fighter (although he did not fight) at the age of 14/15 years, possibly up to 16 years, yet the photograph provided would appear to be of a youth or young man of more advanced years than 14 to 16 years. The claimed LTTE association after that age was in a surveillance role and as this was covert it appears unlikely he would wear distinctive camouflage uniform. I consider the photograph to be of low value in corroborating the applicant’s claim to have been an LTTE member and to have been recruited as a fighter. I have similarly considered the corroborative value of the information regarding the applicant’s LTTE fighter name and membership number and the return of his cyanide capsule and metal piece and I am not persuaded that this adds significant value in supporting the claims the applicant advanced to the Minister. It is also relevant to note that I have accepted that the applicant was a member of the LTTE in 1986/1987 and that he was recruited as a fighter and trained in combat and weapons.
As noted I accept that this new information may be regarded as credible personal information and I am cognisant that exceptional circumstances must not be narrowly interpreted but in the absence of any discernible exceptional circumstances, and noting that I have accepted the claim to have been recruited as an LTTE fighter, I am not satisfied that exceptional circumstances exist in this case that justify considering this new information regarding his LTTE identity.
The Authority noted the low quality of the photograph, the lack of contextual information, difficulty in establishing the age of the person in the photograph, as well as the inherent inconsistency between the applicant’s claimed surveillance role and the need to wear distinctive camouflage, as depicted in the photograph.
Bearing in mind those difficulties, the Authority was somewhat generous at [12], in accepting that the photograph may be regarded as credible personal information. Ultimately, however, the Authority reasoned that there were no exceptional circumstances requiring the consideration of the photograph, as the Authority had accepted the applicant’s involvement with the LTTE. I see no error in the Authority’s approach to that issue. I agree with the Minister that the Authority’s consideration of s.473DD is free from an arguable case of error.
Conclusion
Given that the applicant is self-represented today, I have considered for myself whether there is any arguable case of jurisdictional error by the Authority. I can perceive no such argument. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant requested a further hearing opportunity. As I explained to him, that was not possible, consequent upon the dismissal of his application.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 December 2019
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