Cea16 v Minister for Immigration

[2017] FCCA 2444

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2444

Catchwords:
MIGRATION – Protection visa application – review of Immigration Assessment Authority decision – whether Authority erred in failing to deal with “special connection” claim – whether Authority erred by failing to consider the applicant’s livelihood into the reasonably foreseeable future – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Late application for amendment – duty of practitioners – migration matters are not in a special category – amendment allowed.

Legislation:

Migration Act 1958 (Cth), s.46(2A)

Other materials:
UNHCR Eligibility Guidelines for Assessing the International Protections Needs of Asylum-Seekers from Sri Lanka

Cases cited:

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263
VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 233 CLR 1; [2006] HCA 60

Applicant: CEA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2109 of 2016

Judgment of: Judge Smith

Hearing date: 7 September 2017

Date of Last Submission: 7 September 2017

Delivered at: Sydney

Delivered on: 20 October 2017

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the First Respondent: Mr B Kaplan

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2109 of 2016

CEA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who lodged an application for a protection visa on 23 September 2015. That application was refused by a delegate of the Minister for Immigration on 14 June 2016. On 28 July 2016, the Immigration Assessment Authority (IAA) made a decision to affirm the delegate’s decision. The applicant now seeks judicial review of the IAA’s decision.

Background

1. On about 27 August 2012, the applicant arrived in Australia by boat on Christmas Island. There was no dispute that the applicant became an unauthorised maritime arrival.

2. On 18 January 2013, the applicant participated in an “entry interview” in which he explained that he had left Sri Lanka because the authorities there started to come after him because of his brother.

3. On 30 August 2013, the applicant lodged an application for a protection visa in which he again explained that he left Sri Lanka because he feared that he would be harmed on account of his brother. By letter dated 26 May 2014, the Department notified the applicant that his protection visa application was invalid by reason of the operation of s.46(2A) of the Migration Act1958 (Cth) (Act). However, the Minister subsequently exercised his power to lift the s.46(2A) bar and, on 23 September 2015 the applicant lodged a valid application for a protection visa.

4. On 29 February 2016, the applicant participated in an interview with the Minister’s delegate. At the interview the applicant gave further details of the reasons for which his brother was sought after by the authorities: namely, that his brother was a member of the committee of the local fishermen’s sangam[1]. The applicant explained that his brother had refused to sign an approval of authority for Sinhalese fishermen fishing in local waters, and the authorities were looking for him for that reason. His brother went into hiding and then travelled to Australia where he eventually obtained protection. The applicant said that the authorities were looking for him in order to find his brother.

   [1] A body or group similar to a workers co-operative society.

5. The material before the delegate suggested that the applicant was living with his brother in Australia.

6. On 14 June 2016, the delegate made a decision refusing to grant the applicant a protection visa. In the circumstances of this case the decision was a “fast track review decision” and so the matter was referred automatically to the IAA for review.

7. On 7 July 2016, the applicant emailed a written submission and some documents to the IAA. In his submissions, the applicant repeated his claim that he feared harm from the authorities because of their interest in his brother but made no reference to the fact that he had been living with his brother in Australia.

8. On 28 July 2016, the IAA made a decision to affirm the delegate’s decision.

IAA’s decision

1. The IAA accepted that the applicant’s brother was an active committee member who participated in collective decision-making and raised members’ issues in connection with the sangam. It also accepted that the authorities visited the applicant’s home twice while he was still in Sri Lanka. It did not accept that the authorities visited his house with an intention to harm or to catch the applicant in order to lure his brother, and found that those visits were nothing more than an attempt to conduct ordinary enquiries with the applicant, as the brother of a missing person of interest: [16] of its reasons.

2. Further, the IAA found that at the time the applicant left Sri Lanka he was not of adverse interest to, or being actively sought by the Sri Lankan Army (SLA) ([18]) and found that the authorities never had, nor had developed, an adverse interest in the applicant: [19] of its reasons.

3. The IAA also considered, but rejected, the claim that the applicant was at risk of losing his livelihood as a result of systematic Sinhalisation occurring in the North and East of Sri Lanka and discriminatory government practices enabling Sinhalese fishermen to take over fishing rights in the area from which the applicant had come. Its reasons for doing so will be examined in greater detail in connection with the second ground of review.

4. The IAA dealt with a number of other claims made by the applicant; however, as no issue is taken by the applicant in respect of the Minister, it is unnecessary to consider them.

5. The IAA concluded that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. At the hearing of this matter the applicant was granted leave to amend his application to rely upon two grounds. The application was made informally in the applicant’s written submissions and made well outside the time contemplated by orders made by consent in October 2016.  The grounds in the original application were all abandoned.

2. As I explained to Counsel for the applicant, the Court’s tolerance of parties’ failure to comply with court timetables is wearing thin. Contrary to what appears to be a widely held conception, I do not regard migration matters as having any special characteristics that might justify the continued failure by legal representatives to flout the orders of the Court.

3. It is the Court’s duty to bring about a just resolution of proceedings brought within its jurisdiction. Minimum delay and expense are essential to such a resolution. It is the duty of parties who appear before the Court to assist the Court to achieve that outcome. In that context Heydon J said in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 229, [156]; [2009] HCA 27:

   … A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.

4. His Honour’s comments must not be allowed to apply to proceedings in this Court.

5. Orders for the preparation of matters for hearing are designed to achieve a just resolution of the proceedings. One of the purposes served by them is to enable the Court to determine, well in advance of any hearing, the merits of each case, the time which a hearing is likely to take and any priority that ought to be given to it. That purpose is defeated by a failure to comply with the orders. The Court’s time in analysing this case prior to setting it down for hearing was almost entirely wasted.

6. That said, in all of the circumstances of the matter, there was no significant prejudice to the due administration of justice caused by the applicant’s failure to comply with the Court’s orders, and the amendment was granted. Further, I am confident that Counsel for the applicant will pay closer attention in the future to his obligations to the Court.

First ground:    Whether the authorities might become aware of a “special connection” between the applicant and his brother and then have an adverse interest in the applicant

1. The applicant’s first ground was set out as follows:

   The IAA failed to deal with an aspect of the applicant’s claims as follows. The applicant’s brother was of interest to the Sri Lankan authorities and fled to Australia, following which the brother continued to be of interest to the authorities. Since February 2013 the applicant has lived with the brother in Australia. A question is whether, if the applicant is required to return to Sri Lanka, the authorities might become aware of this special connection between the applicant and his brother and then have an adverse interest in the applicant because of the special connection. If there is a real chance of this happening, the applicant’s fear of persecution if required to return to Sri Lanka is well-founded. The IAA failed to deal with this aspect of the applicant’s claims, which is a jurisdictional error.

2. The applicant did not argue that the “special connection” between him and his brother was expressly relied upon in his application for a protection visa. However, he argued that the claim arose on the material.

3. First, the IAA accepted that the applicant’s brother had left Sri Lanka in 2012 after he had a dispute with the SLA. Secondly, the fact that the applicant had lived with his brother in Australia was accepted by the delegate.

4. Thirdly, the applicant had claimed that the SLA had gone to his house looking for him several times after his brother had fled Sri Lanka; the IAA accepted that that had occurred on two occasions.

5. Fourthly, there was information before the IAA that supported the claim. This information, was the following extract from the UNHCR Eligibility Guidelines[2] (Guidelines) relating to Sri Lanka:

   … The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

   1)Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

   2)Former LTTE combatants or “cadres”;

   3)Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

   4)Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

   5)LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

   6)Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

   [2] UNHCR Eligibility Guidelines for Assessing the International Protections Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012.

6. The applicant relied in particular on sub-para.6 of the above extract, submitting that that paragraph suggests that “persons with family links” to persons of interest to the Sri Lankan authorities, may themselves be of interest to the Sri Lankan authorities.

7. That submission is misconceived. The part of the Guidelines relied upon relates to relatives of people with LTTE connections and not, as the applicant submitted, “persons of interest to the Sri Lankan authorities” in general.

8. There is nothing in either of the material, or the submissions made by or on behalf of the applicant, to suggest that there was a “special connection” between the applicant and his brother which might give rise to persecution of the applicant by the authorities. The only connection relied upon by the applicant and otherwise apparent upon the material was that the applicant was the brother of somebody who might be of interest to the authorities. There is no question that the IAA dealt with that: see [45] of its reasons. The IAA was not obliged to consider a claim that could only be excavated by reason of some “constructive or creative activity”: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 19, [58]; [2004] FCAFC 263.

9. For that reason this ground is rejected.

Ground two:     Misapplication of “real chance test”

1. The second ground raised by the applicant is as follows:

   The applicant was a fisherman from [village] which is in the North of Sri Lanka. He claimed he was at risk of losing his livelihood as a result of systematic Sinhalisation occurring in the North of Sri Lanka. There was some country information before the IAA in support of this claim. The IAA found that it was “not satisfied that the applicant’s livelihood is threatened by illegal fishing activities”. However, this finding focuses on the present, and the IAA did not look to the reasonably foreseeable future. The IAA’s failure to consider this issue into the reasonable foreseeable future involves a mis-application of the “real chance test” explained in Minister v Wu Shan Liang (1996) 185 CLR 259 at 278 – 279 and hence a jurisdictional error.

2. The applicant claimed that, as a Tamil fisherman from the north of Sri Lanka, he was at risk of losing his livelihood as a result of the systematic Sinhalisation occurring in the North and East of Sri Lanka and discriminatory government practices enabling Sinhalese fisherman to take over fishing rights in his area. The IAA dealt with this claim at [28] to [30] of its reasons.

3. At [29] the IAA accepted that the livelihoods of Tamil fisherman in the applicant’s area have been disrupted by years of “conflict and displacement” and that there had been “large scale damage to the economic and social infrastructure in the region”. The IAA also referred to country information which, it said, confirmed that fishermen from the applicant’s area had recently protested against illegal fishing by Indian and non-local Sri Lankan fishermen. It then stated:

   … However, on the evidence, (Village) Tamil fishermen are not subject to harm or denied opportunities to make a living and the applicant himself confirmed the Sangam is still operating in his village and the illegal fishing is not occurring in his area. I am also not satisfied that the applicant’s livelihood is threatened by illegal fishing activities.

   (Emphasis added)

4. The applicant argued that the IAA’s findings focused upon the present and did not look to the future. He relied, in particular, upon the fact that the phrase “is threatened” is in the present tense and that, in respect of other claims, the IAA had referred to the reasonably foreseeable future but did not do so in respect of this claim.

5. The applicant’s argument requires an overly pedantic approach to the reasons of the IAA. First, there are a number of meanings of the word “threat” and its cognate “threatened”. Amongst those is the likelihood of harm: VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 233 CLR 1 at [1]; [2006] HCA 60 (Gleeson CJ and Kirby J). On that understanding of the word, the phrase “is threatened” although expressed in the present tense in fact, looks to the future.

6. Secondly, far from supporting the applicant’s argument, the fact that the IAA had applied a forward looking test in respect of other claims, suggests that the IAA also applied a forward looking test in respect of the possibility that the applicant’s livelihood might be affected.

7. Thirdly, the claim concerning the applicant’s livelihood was part of a broader claim that the applicant faced harm as a Tamil. After dealing with each of the components of that broader claim, the IAA concluded, at [34], that there was no “real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, or his Tamil race and origins from the North” . There, the IAA was clearly approaching the question of harm on a forward looking basis. That conclusion fortifies the ordinary reading of the IAA’s reasons in [29], in which it expressly dealt with the livelihood claim.

8. For those reasons, the IAA did not limit its consideration of any of the applicant’s claims to the present and the second ground must be rejected.

Conclusion

1. There is no jurisdictional error in the IAA’s decision. The application must be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     20 October 2017