CDW18 v Minister for Home Affairs

[2018] FCCA 2334

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDW18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2334

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider the applicant’s circumstances in the reasonably foreseeable future – whether the Authority failed to exercise its powers under s 473DC of the Act – no jurisdictional error made out – amended application dismissed.  

Legislation:

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

Cases cited:

CPE15 v Minister for Immigration and Border Protection [2017] FCA 591

Applicant: CDW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1207 of 2018

Judgment of: Judge Street

Hearing date: 22 August 2018

Date of Last Submission: 22 August 2018

Delivered at: Sydney

Delivered on: 22 August 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser
Direct access basis

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. Grant leave to the applicant to rely upon the amended application annexed to the submissions filed on 10 August 2018 and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

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

DATE OF ORDER: 22 August 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1207 of 2018

CDW18

Applicant

And

MINISTER FOR HOME AFFAIRS

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”) under Part 7AA of the Act made on 27 March 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. 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 8 September 2012. The applicant was found to be a Catholic Tamil from the Northern Province and lived in a small town under the Liberation Tigers of Tamil Eelam (“LTTE”) control. The LTTE tried to recruit the applicant but he refused. The applicant fears that he will be captured and locked away or shot on being required to attend a Sri Lankan Army (“SLA”) camp for questioning.

3. The applicant claims to fear harm because of his Tamil ethnicity and/or perceived links to the LTTE and by reason of being a failed asylum seeker who departed Sri Lanka illegally. The applicant also claimed to fear harm by reason of having attended LTTE Martyrs commemoration days in Auburn and Silverwater, and the applicant feared that the information would have been passed to the authorities and he will be imprisoned and harmed because he will be linked with the LTTE having participated in Martyrs' Day.

4. On 29 August 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The delegate found the applicant had attended only one Martyrs' Day ceremony in Australia and referred to the applicant identifying that he had no active role in this event except paying tribute to dead people and that he was not involved in making speeches, logistical arrangements or giving media interviews. It was in that context that the delegate found the chance of the applicant's participation coming to the attention of the Sri Lankan authorities, and being of interest to them, to be remote.

5. On 4 September 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did so on 26 September 2017 and the material was referred to in the Authority's reasons.

6. The Authority identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority had regard to the submissions to the extent that they engaged with the delegate's decision and identified new information and considered the same in accordance with the criteria under s 473DC and s 473DD of the Act.

7. The Authority summarised the applicant's claims and evidence, including the applicant's assertion that he attended the Martyrs' Day commemoration days in Auburn and Silverwater, and that he feared he would be imprisoned and harmed because he will be linked to the LTTE. The Authority accepted the applicant's brother-in-law was a member of the LTTE and left Sri Lanka via the airport in 2005. The Authority accepted the applicant's mother's brother did assist the LTTE with transport, which the Authority found was consistent with most fisherman in the village.

8. The Authority referred to the applicant being asked about details of harassment and questioning and found the applicant gave vague and general answers. The Authority referred to the applicant saying that he would be called now and then and asked about relatives in the LTTE and sometimes locked up. The Authority referred to the applicant saying that he had been detained and that he was locked up in a particular police station for two days, and asked about his brother-in-law and the connections his brother-in-law had in Sri Lanka. The Authority found it implausible that if the applicant had been locked up in the police station for one or two days he would fail to mention this in his statement of claims or supplementary statement of claims. It was in that context that the Authority found the applicant had fabricated the claim of being locked up in the police station in response to the delegate's direct question. The Authority found this raised serious questions about the applicant's credibility.

9. The Authority did not accept the applicant's name would result in adverse interest from Sri Lankan authorities. The Authority referred to the delegate raising with the applicant why he did not put being kidnapped two or three times in his statement of claims and the applicant's responded that he did not go into the detail but just identified the issues. The Authority referred to the applicant being pressed on this issue and repeating the substance of that response. The applicant then asserted that he had forgotten. The Authority did not accept that the applicant would fail to mention those events at his arrival interview or in his statement of claims because he forgot. The Authority found the applicant's response to details about the kidnapping were vague and general. The Authority found the applicant had fabricated the claims of being kidnapped two or three times by the Tamil Eelam Liberation Organisation (“TELO”) and/or the People’s Liberation Organisation of Tamil Eelam (“PLOT”). The Authority did not accept the applicant was ever kidnapped. The Authority found the applicant had fabricated this claim and was not satisfied the applicant's mother’s younger brother was taken by PLOT and threatened.

10. The Authority referred to the applicant's claim concerning the last time he was kidnapped, being in 2011, and going into hiding. The Authority had credibility concerns that if the applicant was forced to go into hiding, moving from place to place and living at his sister's home for seven months before he left Sri Lanka to avoid being kidnapped were true, he would fail to mention this in his statement of claim, fail to mention the last address he lived at in Sri Lanka during his arrival interview and fail to mention it is a place that he lived in his Safe Haven Enterprise visa application. It was in these circumstances the Authority found the applicant had fabricated his claim of going into hiding. The Authority found that the applicant lived from 1992 to 2012 at the same place with his wife and children.

11. The Authority identified having serious doubts about the applicant's credibility and did not accept the applicant was ever interrogated, beaten or threatened by the Criminal Investigation Department (“CID”) or PLOT. The Authority did accept that the SLA would have monitored and harassed the applicant because he was a Tamil male on a regular basis. The Authority did not accept that the last time the applicant was asked to attend an SLA camp that he did not go. The Authority did not accept that the applicant would be released because he took his wife and children. The Authority referred to country information to the effect that high profile former LTTE members who remained wanted by the Sri Lankan authorities may be subject to monitoring.

12. The Authority referred to the applicant's claim that he attended the Heroes Day in Auburn in 2016 and the assertion that videos are taken of the events and published on the news. The Authority noted in the applicant's statement of claims that he said he attended in both Auburn and Silverwater. The Authority found the applicant provided no independent evidence to substantiate his claims of attending the Martyrs' Day celebrations. Taking into account the earlier findings referred to above made by the Authority that the applicant had fabricated his claims, as well as taking into account the applicant's evidence about attending Martyrs' Day celebrations being inconsistent, the Authority was not satisfied the applicant has ever attended Martyrs' Day celebrations or that there were photographs of the applicant's relatives at these events.

13. The Authority identified the relevant law. The Authority did not accept the applicant was detained by the Sri Lankan police, that the applicant was ever kidnapped by TELO and/or PLOT, that the applicant was ever questioned and interrogated by the CID and/or PLOT, that the applicant was required to go into hiding six or seven months before he departed Sri Lanka for Australia, that the applicant's uncle was kidnapped by PLOT, that the applicant attended Martyrs' Day celebrations or that there were photographs of the applicant's relatives at the Martyrs' Day celebrations. The Authority referred to there being no credible evidence to indicate that the applicant would now be perceived as having a role in the LTTE or in post-conflict Tamil separation. The Authority was not satisfied the applicant's profile would give rise to any adverse interest in him upon return to Sri Lanka. The Authority was satisfied if the applicant were to return to Sri Lanka he would not face a real chance of any harm by the Sri Lankan military or any of the Sri Lankan authorities for these reasons.

14. The Authority referred to the applicant being a failed asylum seeker returning in circumstances where he had departed illegally. The Authority was satisfied the applicant would not be at risk of serious harm or as a consequence of the routine investigation. The Authority did not accept, having regard to the applicant's profile, that he faces a real chance of any harm as a returning Tamil asylum seeker. The Authority found there is no chance the applicant will be given a custodial sentence. The Authority found there is not a real chance the applicant would be required to report regularly to the local police.

15. The Authority accepted the applicant may be detained for a short period during the investigation and while waiting to be taken before a Court. The Authority found this treatment of the applicant under the Immigrants and Emigrants Act (1948) Sri Lanka is not discriminatory conduct but rather, the application of a law which applies to all Sri Lankans. The Authority found a generally applicable law will not ordinarily constitute persecution.

16. The Authority referred to the evidence not suggesting that the Immigrants and Emigrants Act (1948) Sri Lanka is selectively enforced to apply in a discriminatory manner. The Authority found the investigation, prosecution and punishment for illegal departure under the Immigrants and Emigrants Act (1948) Sri Lanka would be pursuant to a non‑discriminatory law of general application and does not amount to persecution within the meaning of s 5J(4) of the Act.

17. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant failed to meet the criteria in s 36(2)(a) of the Act.

18. The Authority turned to the issue of complementary protection and referred to the criterion and as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

19. The Authority referred to having considered the applicant's claims individually and cumulatively under the Refugees Convention and having found the applicant does not face a real chance of serious harm if he returned to Sri Lanka by reason of his ethnicity, relatives, previous monitoring, harassment and questioning by the Sri Lankan authorities or having sought asylum in Australia.

20. The Authority referred to the real risk and real chance test applicable to the assessment of a well-founded fear substantially being the same standard. The Authority accepted that the applicant will be subject to a series of administrative processes. The Authority is not satisfied that the acts or omissions of the Sri Lankan authorities during this administrative process are intended to cause pain or suffering, severe pain or suffering, or to cause to extreme humiliation so as to amount to cruel, inhumane or degrading treatment or punishment. The Authority was not satisfied there is a real risk that the applicant will suffer significant harm within the meaning of s 5J(1) of the Act.

21. 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, there is a real risk that 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

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

   1. Whether an applicant has a well-founded fear of persecution on return to their receiving country requires the decision-maker to consider the situation into the reasonably foreseeable future. The Immigration Assessment Authority (“the IAA”) failed to consider the situation for the applicant, if he is required to return to Sri Lanka, into the reasonably foreseeable future. This involves an error in application of the real-chance test and jurisdictional error.

   2. The applicant claimed that in 2016 he attended a Martyrs Day commemoration in Sydney and he feared persecution if required to return to Sri Lanka as a result of this event. This Minister’s delegate accepted the applicant attended the 2016 commemoration. In contract, the IAA did not accept that the applicant attended the 2016 commemoration. The IAA, in reversing the finding by the Minister’s delegate in the applicant’s favour concerning this matter, without exercising its power in s 473DC to give the applicant an opportunity to comment, involved conduct by the IAA which was legally unreasonable.

Ground 1

1. In relation to ground 1, Mr Zipser of counsel on behalf of the applicant submitted that the Authority had failed to correctly apply the forward looking test in relation to the reasonably foreseeable future. Mr Zipser took the Court to authorities in that regard, including CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60]. Mr Zipser also focused on the applicant's claims in relation to having been a Tamil and the fear of being imputed with an LTTE connection and fear of the Sri Lankan authorities.

2. Mr Zipser referred to the absence of express reference in paragraphs 25 to 27 of the Authority’s reasons as to the reasonably foreseeable future and its reasons in those paragraphs. Mr Zipser pointed out that there was no reference to that test in paragraph 24 and no other express reference to the reasonably foreseeable future in the assessment of the applicant's claims under the Refugees Convention. Mr Zipser also drew attention to the language used in the Authority's reasons where it was submitted the Authority in referring to "upon the applicant's return to Sri Lanka" was focusing upon the point of return and not beyond.

3. Mr Zipser referred to the country information supporting the validity of the applicant’s fear of the security situation and the obligation of the Authority to provide reasons under s 473EA of the Act. Mr Zipser submitted that in the context of the present case the Court should infer that the Authority had failed to apply the correct test in having regard to the reasonably foreseeable future.

4. Notwithstanding the skilful submissions of Mr Zipser, the Authority's reasons are not to be read with a keen eye for error and must be read as a whole. The Authority's reasons set out, at the end of the decision, the applicable law and referred to having considered the applicant's claims individually and cumulatively under the Refugees Convention and having found the applicant does not face a real chance of serious harm for the reasons claimed. The Authority referred expressly to the real risk test in complementary protection imposing the same standard as the real chance test applicable to the assessment of a well-founded fear.

5. The Authority's reasons on a fair reading expressly refer to the future where the Authority referred to “would not” in paragraph 27 and paragraph 28. The Authority also correctly identified the relevant law in its reasons. The reference to there being no credible evidence before the Authority to indicate that the applicant would now be perceived as having a role in the LTTE or post-conflict Tamil separation is not a proper basis, in the circumstances of the Authority's reasons as a whole, to infer that the Authority has not had regard to and correctly applied the forward looking test. Nor does the reference to “upon the applicant's return to Sri Lanka” support infering such a failure by the Authority.

6. The Authority's analysis of the country information and the future application of the Immigrants and Emigrants Act (1948) Sri Lanka also support the conclusion that the Authority correctly applied the relevant test for jurisdictional error. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Zipser submitted that the Authority had, in substance, made a different finding from that of the delegate in relation to the applicant's attendance at Martyrs' Day and that it was in these circumstances legally unreasonable for the Authority not to expressly consider the exercise of its power under s 473DC of the Act.

2. Mr Zipser drew attention to the statutory regime under Part 7AA of the Act and took the Court to the delegate's finding as well as to the Authority's finding in that regard. Mr Zipser acknowledged that there was no express request for the Authority to exercise the powers under s 473DC of the Act. The applicant's claim concerning the attendance at Martyrs' Day was one which involved his activities coming to the attention of the authorities. The delegate made an express finding that the prospect of that coming to the attention of the authorities was remote.

3. The Authority wrote to the applicant and gave the applicant an opportunity to put on new information and submissions. The delegate had not accepted the applicant's claim in relation to his attendance at Martyrs' Day likely to come to the attention of the authorities and the applicant had an opportunity to put on new information or submissions in that regard. In the circumstances of the opportunity given by the Authority, pursuant to the letter dated 4 September 2017, it cannot be said that it was legally unreasonable for the Authority not to expressly consider exercising its powers under s 473DC of the Act.

1. The nature of the review under Part 7AA of the Act is one in which the Authority is not bound by the delegate's findings in circumstances where the delegate had rejected the substance of the applicant's claim concerning the Martyrs' Day attendance coming to the attention of the authorities as being more than remote. There was an evident and intelligible justification for the Authority not expressly considering the exercise of the power under s 473DC of the Act.

2. I accept the first respondent's submission that the Authority was permitted to depart from the delegate's findings in this regard and was under no obligation to alert the applicant in relation to that departure. I accept the first respondent's submission that the applicant's complaint involves nothing more than an assertion that the Authority acted unreasonably in failing to do what it is under no obligation to do. The Authority was required to review the material in accordance with Part 7AA of the Act. There was no legal unreasonableness in the Authority failing to expressly consider exercising the power under s 473DC of the Act. No jurisdictional error as alleged in ground 2 is made out.

Conclusion

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

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 November 2018