CEQ16 v Minister for Immigration

[2017] FCCA 287

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEQ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 287

Catchwords:
MIGRATION – Protection (Class XA) visa – whether the Authority complied with its statutory obligations – whether the Authority failed to take into account relevant considerations – the Authority complied with its obligations of procedural fairness under Part 7AA of the Act – no information enlivening s.424A or s.424AA – no jurisdictional error identified – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.5H, 36, 424A, 424AA, 473CB, 476, Part 7AA

Applicant: CEQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSSESSMENT AUTHORITY

File Number: SYG 2131 of 2016

Judgment of: Judge Street

Hearing date: 21 February 2017

Date of Last Submission: 21 February 2017

Delivered at: Sydney

Delivered on: 21 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Mr W Sharpe

Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2131 of 2016

CEQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSSESSMENT 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 on 29 July 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka of Tamil ethnicity and a Hindu. The applicant claims that he travelled to Doha in Qatar and that he resided there from June 2010 until January 2012 when he returned legally to Sri Lanka. The applicant left Sri Lanka illegally and departed for Australia on 26 July 2012. The applicant arrived in Australia on 17 August 2012. The applicant applied for protection on 16 August 2016. 

The Delegate

1. The applicant claims to fear harm if returned to Sri Lanka of the CID and/or by reason of his family members having participated in the LTTE, that he will be suspected of being a member of the LTTE, by reason of his illegal departure from Sri Lanka and being a failed asylum seeker. 

Consideration of the applicant’s claims and evidence

Consideration of the brothers’ links with the LTTE

1. The delegate considered the applicant’s evidence in relation to his family’s connections with the LTTE. In support of that claim, documents in French were provided to the delegate in relation to the applicant’s brothers. The delegate was not satisfied that those documents evidenced that the brothers had a profile associated with the LTTE. The delegate found there was no evidence to substantiate that the applicant’s other brothers were involved with the LTTE. The delegate did not accept that the applicant’s brothers had a profile with the LTTE. 

Consideration of the uncles’ profile with the LTTE

1. The delegate turned to the applicant’s uncles and their involvement with the LTTE. The delegate was not satisfied the applicant feared harm in Sri Lanka due to the profiles of his uncles, especially in light of the fact that the applicant was not credible in his testimony regarding the reason why he left Sri Lanka for Qatar. The delegate found the applicant’s testimony in that regard to be inconsistent.

2. The delegate also took into account that the applicant had not mentioned any fear of being abducted because of his uncles’ profile in the first interview. The delegate found there was no information to confirm that the applicant’s uncles were actively involved in the LTTE. The delegate did not accept that the applicant feared harm in Sri Lanka due to the profile of his uncles who passed away before the war ended in 2009 or that the applicant left Sri Lanka for Qatar due to a fear of abduction related to the authorities searching for his uncle. 

Consideration of the applicant’s profile with the LTTE

1. The delegate turned to consider the applicant’s profile of being associated with the LTTE. In this regard, the delegate referred to the applicant’s evidence that he had been questioned by the CID. The delegate found the applicant to have given inconsistent and vague information about the number of times the CID visited his house, about the first time they came to make enquiries and the delegate found that the applicant had provided very little detail about the nature of their questioning. The delegate found that due to the lack of detail in the applicant’s testimony and the absence of any further evidence, the delegate did not find it plausible that the applicant was threatened with abduction by the CID. 

Consideration of threats of abduction/harassment by CID

1. The delegate found that the applicant is not active in any movement or organisation in Australia that confers him with a political profile of a person involved with the resurgence of the LTTE or imputes him with being an LTTE supporter.

2. The delegate found that the applicant’s account at the interview of the incidents relating to the CID’s visits, to be significantly different to the ones that he provided in his statement of claims. The delegate found the applicant was unable to provide plausible explanations for the inconsistencies in his testimony which were vague and lacking in detail.  The delegate found the applicant demonstrated an unwillingness to discuss specific incidents regarding instances when the CID made enquiries with him and was evasive in his responses.

3. The delegate did not accept that the incident relating to the applicant’s mother being threatened with the applicant’s abduction and the incident the applicant claimed happened in Jaffna occurred, or that those incidents led the applicant to flee Sri Lanka for Qatar in 2010. The delegate found that the applicant went to Qatar in 2010 to work and was there because his three brothers were also living in Qatar at that time. The delegate did not find credible the proposition that the applicant was threatened with abduction directly or through his mother after he returned from Qatar in 2012. 

Findings

1. The delegate found the applicant does not have a profile of an LTTE supporter and would not be of any interest to the authorities personally for that reason. 

2. The delegate did not accept that the applicant was part of the LTTE or had a personal profile of an LTTE supporter or was suspected of being with the LTTE. The delegate found the applicant was not active or involved in any movement or organisation in Australia that could impute him with a political profile of an LTTE resurgent or an LTTE supporter. 

3. The delegate did not accept the applicant’s evidence in relation to his brother’s involvement with the LTTE or that the applicant feared harm in Sri Lanka due to the profile of his uncles and did not accept that the alleged incidents of threats of abduction or harm were made from the CID prior to the applicant’s departure or that the applicant was threatened through his mother after he returned from Qatar. The delegate made reference to the applicant’s evidence in relation to his mother and sisters residing in a particular location and evidence that they had suffered because of their Tamil ethnicity. 

Refugee criterion assessment

1. The delegate accepted that some forms of discrimination do occur in Sri Lanka as a result of being a Tamil but did not accept in the applicant’s case, that that would amount to a well-founded fear of harm amounting to persecution.  The delegate found there was no real chance the applicant would suffer persecutory harm on account of any association with his brother who was a low-level supporter, former LTTE member, or for any other reason. 

2. The delegate found there was no evidence to suggest the applicant has been a member of any organisation including any offshoot of the LTTE in Sri Lanka or in Australia.  The delegate was not satisfied the applicant would be deemed to be a person with a profile who supports the revival of the LTTE on his return to Sri Lanka. The delegate did not accept that the applicant will face a real chance of serious harm for reasons of his family links with his uncles who have passed away prior to the end of the conflict in 2009 or for his relationship with his brother who had been a low-level member of the LTTE or for any other reason. 

3. The delegate turned to the applicant’s illegal departure and found there was no real chance the applicant will face serious harm in Sri Lanka on account of his illegal departure from Sri Lanka. The delegate was not satisfied that the authorities ever seriously suspected or would suspect that the applicant himself had any direct involvement with the LTTE.  The delegate found that there was no evidence to suggest the applicant had been politically active in Sri Lanka or abroad. 

4. The delegate was not satisfied the applicant is of ongoing interest to the Sri Lankan authorities on account of any perceived or discernible affiliation with the LTTE.  The delegate found it was unlikely that the applicant would be subject to anything more than administrative screening on his return to Sri Lanka. The delegate found there is no real chance the applicant will face serious harm in Sri Lanka on account of being a failed asylum seeker. 

5. The delegate found that the applicant did not face a real chance of serious harm apart from low-level monitoring in Sri Lanka. The delegate was not satisfied there is a real chance the applicant will face serious harm if he were to return to Sri Lanka. The delegate was not satisfied the applicant had a well-founded fear of persecution for any of the reasons advanced by the applicant. The delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a) of the Act.

Complementary protection assessment

1. The delegate found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka there is a real risk the applicant will suffer significant harm as required by s.36(2)(aa) of the Act. The delegate found the applicant was not a person in respect whom Australia had protection obligations under s.36(2) of the Act. The delegate found the applicant was not an excluded fast-track applicant.

The Authority

1. On 7 July 2016, the Authority wrote to the applicant identifying that the matter had been referred to it on that date for review. Attached to that letter was an explanation providing information about the Authority as well as practice directions for the applicant and/or representatives. No material was provided by the applicant to the Authority prior to the making of its decision on 29 July 2016.

2. The Authority identified the applicant’s background and identified that it had had regard to the material referred to the Authority under s.473CB of Part 7AA of the Act. The Authority identified the applicant’s claims and evidence. The Authority correctly identified the relevant law.

Refugee convention assessment

1. The Authority made reference to one of the applicant’s brother’s involvement with the LTTE but noted that he was released after rehabilitation and did not accept that that brother was a senior member of the LTTE. The Authority also made reference to the applicant’s brothers who are now living in France.

2. The Authority noted that the applicant used his own passport to depart Sri Lanka in 2010. The Authority found that if the applicant was genuinely a person of interest to the Sri Lankan authorities at that time, it would be reasonable to conclude that the applicant would not have been permitted to depart Sri Lanka and would have been detained at the airport. The Authority was not satisfied that the CID or any other Sri Lankan authorities threatened the applicant in 2012.

3. The Authority referred to the applicant’s statutory declaration and referred to the inconsistency in relation to the applicant’s assertion that the authorities threatened the applicant. The Authority noted that the delegate had put that inconsistency to the applicant and that the applicant had told the delegate he could not remember what happened. The Authority, in light of those inconsistencies as well as the deficiency in explanations, did not accept that the applicant was threatened by the Sri Lankan authorities in 2010 or 2012.

4. The Authority found that the inconsistent evidence outweighed the corroborative effect of that country information and that the authorities monitored family members of the applicant. The Authority found that the applicant had fabricated the claims that the Sri Lankan authorities threatened to abduct the applicant so as to create a profile upon which the applicant could apply for protection.

5. The Authority noted that the basis upon which the applicant’s brothers were granted refugee status in France was not apparent on the material before the Authority. The Authority was unable to be satisfied that those are grounds that extend to the applicant as well. 

6. The Authority was not satisfied that the applicant faces a real chance of serious harm from the Sri Lankan authorities due to an imputed pro-LTTE or anti-Sri Lankan government political opinion due to the applicant being a Tamil, having close family members in the LTTE, or because his brothers reside in France as refugees, now or in the reasonably foreseeable future if the applicant returns to Sri Lanka.

7. The Authority was not satisfied the applicant faces a real chance of serious harm due to being a failed asylum seeker now or in the reasonably foreseeable future if he returns to Sri Lanka. 

8. The Authority was not satisfied the applicant had a well-founded fear of persecution for reasons of his race, religion, nationality or membership of a particular social group and/or political opinion now or in the reasonably foreseeable future if he returns to Sri Lanka. The Authority found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act. The Authority found that the applicant did not meet the requirements of s.36(2)(a) of the Act.

Complementary protection assessment

1. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the requirements of s.36(2)(aa) of the Act.

Before this Court

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 was affected by relevant legal error. 

2. The Court explained to the applicant 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 in summary this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained to the applicant that if the Court was satisfied the Authority’s decision was unlawful or unfair, the Court would set aside the decision and send it back for further hearing. The Court explained that if the Court was not satisfied the Authority’s decision was affected by relevant legal error, the application would be dismissed.

3. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions 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. 

4. On 27 August 2016, the matter was fixed for hearing and a Registrar made orders providing the applicant with an opportunity to file an amended application, affidavit of evidence and submissions.  No such documents were filed. 

5. The grounds of the originating application are as follows:-

   1. I am the Applicant.

   2. I do not have a lawyer to represent me in this court.

   3. The IAA has made the following jurisdictional errors:

   4. The IAA has failed to take into account the relevant consideration of I had family in the LTTE who were found to be a Convention refugee in France.

   5. The IAA made an error in law, with the error being a jurisdictional error, as the IAA misunderstood of my Convention Claims.

   6. The IAA made an error in law, with the error being a jurisdictional error, by not complying with sections 424A and 424AA.

   7. The Internal Assessment Authority (IAA) erred in law, with error being a jurisdictional error, in that it failed to consider crucial my claim for protection.

   8. When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me to comment on or respond to the adverse information in which it relied to refuse my application. The IAA must have invited me to appear before the IAA to give evidence and present arguments relating to the issues raised in relation to my referred application with the IAA.

   9. I will provide further particulars and if I find any legal errors with the particulars with my amended application when required.

Consideration

Grounds 1-3

1. Grounds 1 to 3 do not identify any jurisdictional error. 

Ground 4

1. Ground 4 asserts a failure by the Authority to take into account a relevant consideration in relation to the applicant having family in the LTTE who were found to be refugees in France. It is apparent from the Authority’s reasons, that the Authority did take into account that the applicant had family who had been found to be refugees in France. The Authority explained that the basis for that finding was not apparent on the material before the Authority. There was no relevant consideration that the Authority failed to take into account. Ground 4 fails to make out any jurisdictional error. 

Ground 5

1. In relation to Ground 5, the Authority correctly identified the applicant’s claims under the Convention. There was no claim identified in respect of which it was alleged the Authority had misunderstood that claim. The Authority’s reasons reflect an orthodox approach to the assessment under Part 7AA of the Act. On the basis of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review under Part 7AA of the Act. On the material before the Court, the Authority complied with its obligations of procedural fairness in the conduct of the review under Part 7AA of the Act. Ground 5 fails to make out any jurisdictional error.

Ground 6

1. In relation to Ground 6, there was no information identified enlivening any obligation under s.424A or s.424AA of the Act. No jurisdictional error is made out by Ground 6.

Ground 7

1. In relation to Ground 7, this appears to be a disagreement with the adverse findings made by the Authority. The adverse findings were open. No jurisdictional error is made out by Ground 7. 

Ground 8

1. In relation to Ground 8, the procedure under Part 7AA of the Act does not require the Authority to invite the applicant to comment or to appear before the Authority. The Authority communicated to the applicant that the matter had been referred to the Authority for review. On the material before the Court, the Authority complied with its obligations under Part 7AA of the Act in the conduct of the review. No jurisdictional error is made out by Ground 8 of the application.

Ground 9

1. Ground 9 does not identify any jurisdictional error.  From the bar table, the applicant noted that he had no legal representation at the time of the initial interview. The absence of legal representation at the time of the initial interview is not a matter that gives rise to any jurisdictional error by the Authority. 

Consideration of claims raised by the applicant at the hearing

1. The applicant also raised from the bar table that he did not have adequate opportunity to obtain documents and put on submissions to the Authority.  On the face of the material before the Court, the applicant was notified of the delegate’s decision and the referral for review by letter dated 7 July 2016. The applicant was provided with information in relation to the nature of that review and the limited new information that the Authority could consider. 

2. On the material before the Court, the applicant had a reasonable opportunity to raise any further information which the applicant wished to do prior to the delivery of the Authority’s decision. There is no evidence before the Court to identify any steps taken by the applicant to obtain information that would constitute new information to which the Authority could have had regard. The applicant did have an opportunity to put on submissions and new information following the referral of the matter for review to the Authority. 

3. On the material before the Court, the applicant had a reasonable opportunity to put on submissions or new information and did not do so. Nothing raised by the applicant at the bar table identified any jurisdictional error by the Authority. 

Conclusion

1. The application is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  8 March 2017