CED17 v Minister for Immigration

[2018] FCCA 214

FEDERAL CIRCUIT COURT OF AUSTRALIA

CED17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 214

Catchwords:

MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority failed to consider an integer of the applicant’s claims – whether the Authority failed to consider the claims cumulatively – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473CC, 473DE, 476, 477

Cases cited:
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188

Applicant: CED17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1566 of 2017

Judgment of: Judge Street

Hearing date: 31 January 2018

Date of Last Submission: 31 January 2018

Delivered at: Sydney

Delivered on: 31 January 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser
On a direct access basis

Solicitors for the Respondents: Ms M Donald
Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the amended application initialled by the Court and dated today and the Court dispenses for the need for the filing of an electronic copy of the same.

2. Pursuant to s 477 of the Migration Act 1958 (Cth) the time for the bringing of these proceedings be extended up to and including 22 May 2017.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1566 of 2017

CED17

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”) under Part 7AA made on 27 March 2017. 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 17 August 2012.

Claims for protection

1. The applicant was stated to be a Tamil of Hindu faith from Trincomalee, of the Eastern Province, of Sri Lanka. The applicant and his family were displaced during the civil war and fled to India. The UNHCR assessed them as refugees in 1994 and assisted with their return to Sri Lanka. They were unable to return to their home and resided in a refugee camp in Trincomalee. In 1999 the applicant was identified by an informer in the camp and interrogated and tortured for 15 days by the Sri Lanka Army (“the SLA”) in relation to the Liberation Tigers of Tamil Eelam (“the LTTE”).

2. In December 2003, the applicant’s mother went missing and on 14 January 2004, a body was found which was identified to be the body of the applicant’s mother. The applicant’s uncle was said to have been shot en route to give evidence at a court. In 2005, the applicant became the Secretary and Treasurer of a particular society and the SLA and the navy frequently demanded money from the society, which the applicant paid.

3. In 2008, the Karuna Group started demanding payments from the society. During the election campaign in 2010, the Karuna Group demanded a large sum and started asking office bearers personally for money. The applicant’s uncle was the chairman. The applicant refused to pay the Karuna Group and was detained for 10 days, beaten, and was threatened to be killed if he reported the abduction. In April 2012, the applicant’s uncle, who was the chairman, was killed.

4. The applicant informed the police that the Karuna Group had been demanding money from the society. The Karuna Group went to the applicant’s home and threatened to harm him for reporting them to the police and they returned two weeks later but the applicant refused to open the door. The applicant alleges that he fled to Australia. Strangers went to his home on a couple of occasions and asked his wife about his whereabouts.

5. The applicant alleges in June 2015, men went to his home and asked about his whereabouts, claiming to be from the Criminal Investigation Department (“the CID”) but did not produce identification and that they were informed by his wife that he was in Australia and she gave them his telephone number but that he has not received any call from them. In August 2015 a brother of the applicant’s cousin’s wife was killed and his body was found on a beach and the applicant’s friend went missing and another body was found.

6. On 16 December 2016, the delegate found the applicant failed to meet the criteria for the grant of a visa.

The Authority’s decision

1. On 21 December 2016, the Authority wrote to the applicant identifying that the application had been referred to the Authority for review. The letter identified that there were limited circumstances in which the Authority could consider new information and provided an attached factsheet and Practice Direction giving the applicant an opportunity to put on new information and submissions.

2. The Authority, in its reasons on 27 March 2017, identified the applicable law in the attachment to the reasons for the decision. The Authority identified the background for the visa application and that the Authority had regard to the material referred under s 473CB. The Authority made reference to obtaining new information in relation to which the Authority was satisfied it had exceptional circumstances to consider it under s 473DE(3)(a).

Refugee assessment

1. The Authority summarised the applicant’s claims for protection and found the applicant’s evidence regarding his family’s travel history to India and their situation in Trincomalee to be internally consistent and free from embellishment.

Young Tamil male from the east

1. The Authority referred to the round ups by people suspected in the Internally Displaced Person camp of being LTTE supporters and accepted the applicant’s claim that even though he was not associated with the LTTE he was identified by an informer and that the SLA detained and tortured him. The Authority accepted the applicant was released after 15 days and was satisfied on the applicant’s evidence that the Sri Lanka authorities have not demonstrated any further interest in him as a potential LTTE suspect since that time.

2. The Authority also accepted the UNHCR found the applicant and his family to be refugees while they were in India in 1994, but that the current UNHCR guidelines of 2012 no longer specify individuals of Tamil race as requiring protection for that reason alone. The Authority found over 15 years had passed since the applicant was detained during the round up and noted that the monitoring and harassment of Tamils in day-to-day life had significantly eased since the end of the war. The Authority accepted the applicant’s claim that, since he has been in Australia, several men who said they are from the CID but have refused to show their identification have asked about the applicant on three or four occasions.

3. The Authority found their last visit was in June 2015 and the applicant confirmed at the interview that these men have not harmed or threatened his family and that the wife of the applicant had given them his Australian mobile number and they had not contacted him. The Authority did not find it credible that for the past five years the applicant’s family, his wife and children, mother-in-law, and his father have been moving location every couple of nights to stay with different relatives because they are afraid of these men returning as the applicant claimed. The Authority found the applicant exaggerated this aspect of his claims to strengthen his application for protection. The Authority was satisfied the applicant is not of interest to the Sri Lanka authorities at the time of his departure from Sri Lanka and was satisfied the applicant does not face a real chance of harm from these men.

4. The Authority referred to country information in relation to Tamils and was not satisfied the applicant has a well-founded fear of persecution because he is a Tamil male from the Eastern Province or his family’s previous interaction with the Sri Lanka authorities.

Karuna Group

1. The Authority then turned to the applicant’s claims concerning the society he was secretary and treasurer of and its interaction with the Karuna Group. The Authority accepted that the applicant became the secretary and treasurer of the society and was responsible for managing the society’s membership funds. The Authority accepted the applicant’s claim that the authorities targeted the society because it was a Tamil organisation and was seen as an easy target for extortion. The Authority referred to the applicant during the safe haven enterprise visa interview confirming that as long as the society paid money to the navy and SLA as required, members of the society continued to be issued fishing passes.

2. The Authority noted that the applicant has not claimed the authorities’ demands ever had a negative impact on his personal fishing business, in which he employed six people, beyond the need for the applicant to always possess a valid fishing pass. The applicant confirmed that when the civil war ended in 2009, the navy and SLA stopped coming to the society for money. The Authority accepted the applicant’s claim that from approximately 2007 the Karuna Group started to also demand regular payments of cash and fish from the society. The Authority referred to country information and found it plausible that during the 2010 parliamentary election campaign the Karuna Group may have demanded an unusually large sum of 300,000 LKR to finance their activities and that when the applicant refused to provide it to them in April 2010 the Karuna Group abducted and then tortured him for 10 days.

3. While it is not mentioned in the applicant’s safe haven enterprise visa application, the Authority accepted the applicant’s oral evidence that the Karuna Group demanded money for him three more times after they released him. The Authority noted the Karuna Group did not harm the applicant on these three occasions, although they threatened to do so. The Authority made reference to the delegate asking the applicant if he held the positions of secretary and treasurer up until his departure from Sri Lanka in July 2012 and that the applicant confirmed that he did.

4. The Authority noted that the applicant had also stated that before he left Sri Lanka he had sold his fishing business. The Authority made reference to the delegate in asking the applicant if the Karuna Group had been demanding money from the applicant right up until his departure from Sri Lanka. The Authority noted that the applicant did not answer the question directly, stating instead that each time the Karuna Group asked for 300,000 LKR he told them the society did not exist anymore and that there was no money to give them, although the applicant alleged the society continued to act secretly.

5. On the basis of the applicant’s evidence, the Authority was satisfied the Karuna Group demanded money from the applicant as the society’s financial administrator on three occasions prior to his relocation to Batticaloa in May 2012. The Authority found each time he told them there was no money. The Authority accepted that the society may still exist. However, on the basis of information before the Authority, the Authority found the applicant is no longer responsible for the management of the society’s funds and was satisfied that the applicant would not be targeted for this reason should he return to Sri Lanka.

6. The Authority was satisfied it was within the capacity of the Karuna Group, who had a presence throughout the Eastern Province, to locate the applicant after he moved to Batticaloa in May, before his departure in July 2012, should they wish to do so. The Authority noted that the applicant had not claimed the Karuna Group made any contact with the applicant or his family after the night they knocked on the applicant’s front door and he refused to open it. The Authority took into account the applicant’s statement that the Karuna Group was able to locate him when the family moved from the UNHCR into their new family home in 2010, when they were demanding the 300,000 LKR. The Authority was satisfied the Karuna Group had no continuing interest in the applicant or his whereabouts at the time of his departure from Sri Lanka.

7. The Authority made reference to the applicant being asked about the uncle’s brother and son who are still in Sri Lanka and allegedly have changed their address to avoid the Karuna Group. The Authority found there is nothing to suggest that the applicant is of more interest to the Karuna Group than his uncle’s brother and son, and found this to be further evidence the Karuna Group are not interested in pursuing them any longer regarding the outstanding 300,000 LKR or any information they gave to the police about the uncle’s death or the extortion demands.

8. The Authority also noted that the men said to have come to his wife’s door on three or four occasions have not claimed to have been from the Karuna Group. The Authority was not satisfied that the visits are linked to the applicant’s previous interaction with the Karuna Group. The Authority found that the Karuna Group had not maintained an interest in the applicant. The Authority, having considered all the evidence before the Authority, identified being satisfied that there is no real chance the applicant would face serious harm from the Karuna Group for any reason should he return to Sri Lanka.

9. The Authority made reference to the applicant’s claims of bodies being found in 2015. The Authority accepted the incidents occurred and that the two victims were known to the applicant, but was not satisfied the applicant faced a real chance of harm for this reason. The Authority referred to the applicant making references to the Aavi Group as illustrative of his claims and suggested this is the former Karuna Group. The Authority was satisfied the applicant does not have a well-founded fear persecution of the Aavi Group should he return to Sri Lanka now or in the reasonably foreseeable future.

Returning asylum seeker / illegal departure

1. The Authority turned to the applicant’s claim in respect of being an illegal departee. The Authority was satisfied that there was a real chance the applicant would be questioned, fined, and held briefly as part of the re-entry process. The Authority was not satisfied the questioning and fine amounts to serious harm. The Authority was not satisfied that fine, and being held in detention for a period of up to 24 hours at the airport or possibly a nearby prison cumulatively amounts to serious harm. The Authority found on country information, that the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the I&E Act”) applies to all Sri Lankan citizens and is not discriminatory on its face or on its application. The Authority found the treatment of the applicant will face as a consequence of the application of the I&E Act is not persecution under the meaning of s 5J(4) of the Act.

2. The Authority then said for the reasons stated above that the Authority was satisfied the applicant is not currently of any interest to the Sri Lankan authorities because of being a Tamil male from the Eastern Province, his and his family’s previous interactions with the authorities or because of his profile with the authorities as a secretary and treasurer of the society, which was a Tamil organisation. The Authority, in light of the improved country information, was not satisfied there is a real chance, the applicant would face harm as a returning Tamil asylum seeker in Australia who departed Sri Lanka illegally now or in the foreseeable future.

3. The Authority 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) and that the applicant did not meet the criteria under s 36(2)(a) of the Act.

Complementary protection assessment

1. The Authority then turned to the issue of complementary protection. The Authority having considered the applicant’s circumstances in their totality, did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka there is a real risk the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

Extension of time

1. At the commencement of the hearing, the applicant sought an extension of time and relied upon evidence and an amended application for an extension of time. Following a request by the first respondent to cross-examine the applicant, the Court sought to explore the length of the delay in the present case and considered at an impressionistic level, the arguments, and, in particular, Ground 2 advanced by the applicant in the amended application. It was in these circumstances, the Court made an order extending time under s 477 in respect of the proceedings commenced on 22 May 2017.

2. Mr Zipser of counsel indicated he was in a position to proceed with the final hearing and the Court proceeded to do so.

Grounds of the application

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

   1. Between 2005 and 2012 the applicant was the treasurer and secretary of the [X] Fisherman Development Society. He suffered persecution at the hands of the Karuna group in this period.

   The Immigration Assessment Authority (“the IAA”) failed to consider whether the applicant may resume being treasurer and secretary of the Society if required to return to Sri Lanka and, in this way suffer further persecution at the hands of the Karuna group. The IAA's failure to consider this aspect or integer of the applicant's claims was a jurisdictional error.

   2. The applicant feared harm from a number of sources. Specifically, he feared harm from the Karuna Group for two reasons and he feared harm from the Sri Lankan authorities for a few reasons. In considering whether the applicant had a well-founded fear of persecution for a Convention reason, the IAA considered the applicants claims individually. This was a jurisdictional error.

Consideration

Ground 1

In relation to Ground 1, Mr Zipser argued that it could be said from the material before the Authority that an integer of the applicant’s claim that arose in the material before the Authority was what would happen to the applicant if he resumed the position of treasurer and secretary of the society.

1. The applicant submitted that there had been a failure to consider this integer, constituting a jurisdictional error. Notwithstanding the skilful argument of Mr Zipser, I do not accept that any claim arose in the material before the Authority that the applicant feared harm by reason of the possibility of resuming the position of treasurer and secretary of the society or that any such claim arose on the material before the Authority.

2. The Authority made dispositive findings in respect of the applicant’s claimed fear of harm from the Karuna Group and made a dispositive finding in respect of that claim. That finding was open for the reasons given by the Authority as summarised above. The reasons of the Authority in that regard cannot be said to be illogical or unreasonable. No claim arose on the material before the Authority that the applicant may resume being treasurer and secretary of the society and, accordingly, there was no obligation upon the Authority to make a finding in that regard. No jurisdictional error as alleged in Ground 1 is made out.

Ground 2

1. In relation to Ground 2, Mr Zipser argued that the Authority had failed to consider the applicant’s claims for protection under the Refugees Convention on a cumulative basis. Mr Zipser argued that the Authority had failed to consider the whole of the applicant’s claims on a fair reading of the Authority’s reasons. Mr Zipser took the Court, in particular, to the findings that had been made favourable to the applicant in respect of his Tamil background and family encounters with the Sri Lankan authorities as well as in relation to the Karuna Group. It was submitted that in this review, because of the ethnicity, incidents and claims concerning the LTTE the Authority was required to consider the applicant’s claims cumulatively in determining whether or not the applicant had a well-founded fear of persecution.

1. Mr Zipser also relied upon the express reference to consideration of the applicant’s claims in their totality in paragraph 50 in respect of complementary protection and the absence of similar reference in relation to protection under the Refugee Convention. Mr Zipser submitted that paragraph 40 made no reference to the applicant’s claim in relation to his position with the society and that paragraph 41 was confined to the subject matter of being a failed asylum seeker who departed illegally.

2. The Authority is required under s 473CC to review the decision of the delegate. This requires, in each case, a consideration of the circumstances and claims of a particular applicant. The review must determine afresh whether the applicant meets the requirements for the grant of protection visa under the Refugees Convention and/or under the grounds of complementary protection. In respect of the Refugees Convention, the Authority is determining whether the applicant has a well-founded fear of persecution within s 5J. In the circumstances of the present case, there were dispositive findings made in respect to the applicant by reason of being a Tamil male from the Eastern Province and his family’s previous interactions with the Sri Lankan authorities where the Authority was not satisfied the applicant had a well-founded fear of persecution for a Convention reason.

3. There was equally a dispositive finding by the Authority that there is no real chance the applicant would face serious harm from the Karuna Group for any reason should he return to Sri Lanka. The fear in relation to the Karuna Group was limited to the applicant’s role as treasurer and secretary in the particular society. The Authority’s dispositive findings in respect of the claim do not give rise to a profile or matter requiring cumulative consideration with other claims. The Authority made dispositive findings in respect of the applicant with reference to the bodies and also the Aavi Group. In the circumstances of the present case and in light of those findings, as a factual matter, no amount of accumulative consideration of those rejected claims as a matter of logic is capable of producing a different result in circumstances of the present case. The Court finds the circumstances of the present case fall within what was said in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32] - [35] and that no express cumulative consideration was required by the Authority.

4. It is material to take into account in the present case that the Authority made express reference to the applicant’s profile with the authorities and the Court finds the Authority made dispositive findings of the whole of the applicant’s claims and that this is not a case where it was necessary for the Authority to make express reference to a cumulative assessment. Accordingly no jurisdictional as alleged in Ground 2 is made out.

5. Further, the Court finds on a fair reading of the Authority’s reasons as a whole, the inference should be drawn that the Authority did take into account the whole of the applicant’s claims in determining whether the applicant had a well-founded fear of persecution and met the criteria under s 36(2)(a) of the Act. Accordingly, I find there is no jurisdictional error as alleged in Ground 2.

Conclusion

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

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  13 February 2018