CFG17 v Minister for Immigration - [2018] FCCA 3664

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFG17 v MINISTER FOR IMMIGRATION

[2018] FCCA 3664

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

SZSXH v Minister for Immigration and Border Protection [2014] FCA 914

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429

Applicant:

CFG17

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

MLG 1080 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

18 September 2018

Date of Last Submission:

18 September 2018

Delivered at:

Melbourne

Delivered on:

12 December 2018

REPRESENTATION

Solicitors for the Applicant:

Divine Lawyers

Counsel for the Respondent:

Mr Hill

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1080 of 2017

CFG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision by a delegate of the Respondent dated 3 May 2017. The delegate refused to grant the applicant a XE-790 Safe Haven Enterprise visa.
The applicant is a Sri Lankan citizen of Tamil faith. He arrived in Australia illegally on 8 November 2012 and applied for the visa on

8 March 2016. The delegate refused the application on 3 May 2017 and the applicant applied for judicial review on 24 May 2017.
The applicant is an excluded fast track review applicant as he had previously applied for asylum in the United Kingdom.

The applicant’s claims

The applicant claims are summarised by the delegate at Court Book (‘CB’) pp.201 to 203. In summary, the applicant claims:
a)The applicant supported his friend (Mr M) in Muslim congress elections and Mr M subsequently had a bomb thrown at his house;
b)The applicant owned a car rental company and in 2008 was approached by the LTTE to transport medical supplies. The applicant refused and was threatened by [Mr S] if he did not comply. The applicant subsequently agreed and transported supplies on three occasions.
c)Unidentified people had followed the applicant and come to his house.
d)The applicant travelled to the UK in 2008 and whilst there applied for a protection visa which was refused in 2010. The applicant was not informed by his lawyer of the decision and so did not appeal it.
e)Whilst in the UK, the applicant’s father had informed him it was not safe for him to return as on several occasions ‘armed gangs had gone to his house, demanding his rent-a-car vehicle then operated by his wife’. His father disappeared in July 2009.
f)The applicant returned to Sri Lanka in mid-late 2011 with the assistance of Mr M. He continued his rent-a-car business.
g)After his return, the applicant learnt that Mr S had been arrested for aiding the LTTE. His wife also informed him ‘that some paramilitary personnel had visited his house looking for him and enquiring about [Mr S]’.
h)As a result, the applicant feared [Mr S] informed the Sri Lankan authorities about the smuggling undertaken by the applicant.
i)In September 2012, the applicant went to Polonnaruwa and visited a friend in Valachchenai afterwards. His friend promised to take the applicant home so the applicant sent his driver with his car to Valachchenai without him. The applicant’s driver and his car were stopped in Welikanda where unknown persons demanded the applicant’s whereabouts and took his driver’s phone. The applicant decided to hide in a safe house. Unable to obtain a foreign job, the applicant travelled to Australia with a people smuggler.
The applicant made additional claims in his protection visa interview, which are summarised in the delegate’s decision (at CB p.203). In summary:
a)On 8 August 2008, two people with a weapon came to the applicant’s house for unknown reasons.
b)The applicant does not know why his application was rejected in the UK and rejected an offer to make a follow-up application there following a sustained absence from his children and the offer of a ticket back to Sri Lanka.
c)The applicant was threatened by the LTTE in 2008 and 2007 and the LTTE still maintain a discreet presence there. Although the applicant no longer feared members of the LTTE.
In addition, the applicant made post-interview submissions which are summarised in the delegate’s decision (at CB p.203). In summary:
a)The LTTE used Muslims when it benefitted them. They stopped using him ‘out of security concerns. [Mr S] did not approach the applicant, after the last delivery.’ The LTTE no longer needed the applicant as they had developed sea routes.
b)When driving to/from Colombo, the applicant was only ever checked by Police for passengers, not cargo.
c)The applicant was not in India in 2008.

The delegate’s findings

The delegate considered the applicant’s claims and found (at CB p.210), ‘the applicant to not be generally credible’.
The delegate considered the applicant’s claim that he ‘fled to the UK on account of the two men searching for him on 08 August 2008’ (at CB p.206). The delegate ultimately rejected this claim as not credible based on evidence of the incident which was ‘vague, speculative and lacking in common sense’ and ‘inconsistent claims regarding the applicant’s asylum application in the UK’: see CB p.206.
The delegate considered the applicant’s claim that he was ‘forced to transport medical supplies for the LTTE’ and further considered that this claim was ‘inconsistent with country information’: see CB p.206. The delegate considered country information of the transportation route and ultimately said (at CB p.208):
… I do not consider it plausible that anyone, including a (Muslim) Tamil, could so easily evade such a highly-developed system of security checkpoints, both in the east, and in and around the capital, Colombo in a common road vehicle as described. I therefore do not accept the applicant’s claim to have been able to avoid all checkpoints other than the checkpoint in Welikanda. I am satisfied the applicant has fabricated this claim in order to enhance his claim for protection.
The delegate highlighted further inconsistencies in the applicant’s evidence (at CB p.208) saying:
… I note the applicant’s claim regarding the time he began smuggling medicine were inconsistent, whereby his PV application claimed he commenced his relationship with [Mr S] in 2008, after which he was forced to smuggle medicine, while at PV interview he claimed he commenced smuggling medicine at the end of 2007. Even accepting the revised date of commencement, the LTTE had been soundly defeated in the region by that time. I am therefore not satisfied they would have been able or willing to force the applicant to work for them in government controlled areas.
The delegate considered whether the applicant was harassed by the LTTE (at CB p.210) and concluded:
The applicant was unable to identify the people it was claimed came looking for him. Given the applicant was not forced to smuggle medicine for the LTTE, I am satisfied, based on the evidence before me, that anyone looking for the applicant were not doing so at the behest of the Sri Lankan government. As such, I consider the applicant’s claim to have, by-chance, escaped a check-point of paramilitaries looking for him to be implausible.
The delegate considered the applicants claim that he feared harm for being a Muslim Congress supporter by supporting his friend, Mr M, run for ‘local rural council’: see CB p.210. The delegate considered country information and the applicant’s ‘low level involvement in the party’ and concluded (at CB p.211):
Overall, I find there is not a real chance that the applicant will be pursued and seriously harmed by any persons in Sri Lanka on account of his association with the Muslim Congress Party. I therefore find the applicant does not hold a well-founded fear of persecution for this reason.
The delegate considered the applicant’s chance of harm for being a twice failed Tamil asylum seeker who departed illegally: see CB p.211. At CB p.211, the delegate considered country information that ‘the screening process for returnees is the same for all persons returning, whether voluntarily or escorted, and the process is not affected by ethnicity’. The delegate considered the penalty for illegal departure ‘is a fine, and I am not aware of reports of anyone being jailed for departing Sri Lanka illegally’: see CB p.211.
On the basis of being a Tamil failed asylum seeker, the delegate concluded (at CB p.212):
I have found that the applicant was not a person of interest to the Sri Lankan authorities for any reason when he left the country. There is no information to suggest that Tamils who have lived or stayed abroad area facing serious harm at Colombo airport or in their home areas on their return to Sri Lanka simply due to the time spent out of Sri Lanka or for being a failed asylum seeker. I therefore find the applicant does not hold a well-founded fear of persecution on account of being a Tamil failed asylum seeker.
In respect to his illegal departure, the delegate considered ‘the applicant’s identity is likely to be checked and he would be questioned at the airport on arrival’: see CB p.212. If the applicant were to be convicted, the likely fine would be between 5000 and 50000 rupees. At CB p.213, the delegate was ‘satisfied that a short period of detention to facilitate the processing of such charges and finds dose not amount to serious harm and therefore does not involve persecution’.
The delegate was satisfied (at CB p.213) that the ‘applicant’s previous legal departure and return will not impact the assessment of the applicant’s illegal departure and the application of Sri Lankan law.
Ultimately, the delegate concluded (at CB p.213) that ‘the applicant does not hold a well-founded fear of persecution on account of being a (twice) failed Muslim Tamil asylum seeker who departed Sri Lanka illegally’. The delegate was not satisfied ‘[the applicant] is a refugee’.
The delegate considered whether there were any complementary protection grounds: see CB p.214. The delegate concluded:
… I have found that there is not a real chance that the applicant faces serious harm in Valachchenai, Sri Lanka to which I find he would return, either from the Sri Lankan Army, Sri Lankan CID, or other Sri Lankan authorities as the result of targeted persecution owing to his profile as a former supporter of the Sri Lankan Muslim Congress or status as a twice-failed asylum seeker.
I acknowledge that serious harm is different from significant harm, however, based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm from these sources.
The delegate was not satisfied the applicant was a ‘person in respect of whom Australia has protection obligations’: see CB p.215.

Grounds of review

Pursuant to orders made on 20 December 2017, the applicant filed amended material. The applicant relies on the Amended Application filed 21 August 2018. The applicant relies on the following grounds:
Ground one
Respondent fell into jurisdictional error of procedural fairness.
Particulars
Respondent failed to ask questions to extract information about the paramilitaries approaching the Applicant and the dangers faced by the applicant leading to persecution.
Ground two
Respondent fell into jurisdictional error.
Particulars
Respondent failed to deal with a material claim of the Applicant, an extortion claim made by the Applicant regarding paramilitary.
Ground three
Respondent failed to apply well-founded fear test regarding extortion claims.
Particulars
Respondent failed to apply well-founded fear test as an implicit extortion claim was not dealt with.

Ground 1

The argument pursuant to ground 1 is that there was an onus on the delegate to investigate claims raised by the applicant. In the applicant’s written submissions, the applicant set out (at [6] and [7]):
6. Delegate did not follow requisite procedures to delve into the claims raised by the Applicant regarding paramilitary groups. This includes but not limited to who approached him, from which paramilitary group, for what purpose did they wanted Applicant’s vehicles, and what would they have done if Applicant consistently denied to oblige. Applicant contends that there might have been an extortion claim overlooked by the Delegate.
7. Had the delegate asked further questions about the approaches of the paramilitary groups, Applicant contends that he would have received a favourable decision.
In argument, the applicant referred to a statement made in submissions, (which appeared at CB p.85), wherein the applicant said:
Furthermore, in the above backdrop, it is useful to mention that there are many underworld figures ruling in the Oddamavadi & [V]alaichchenai areas under the guise of political henchmen, para-military operators (mercenaries) and LTTE operatives. I have been on several occasions accosted by them and requested for my vehicle to be released for political propaganda and other uses, for which I had vehemently refused on the grounds that this is “my family bread & butter”, and that I cannot part with same.
The decision-maker noted this (as appears on the second page, fourth bullet point, second of the paragraphs with bullet points on the page: see CB p.201). This statement, whilst providing some background, does not make a claim that they applicant was at risk of serious harm with respect to those particular events, as he had refused to provide his vehicle on those occasions.
The applicant also sought to develop an argument based upon claims made (at CB p.87 onwards) in the following terms:
During this period when I had travelled to Colombo on a rent-a-car hire, an unidentified gang of two on a motorcycle and armed with pistols had come to my home on a search operation and enquiring after me. On another date, when I was at home, they once again came in civilian clothing to my home with arms. Suspecting foul play, my father had told them that I was away, and in the meanwhile, I escaped from the rear entrance of my house and after secretly visiting my pradeshiya Sabha friend, [Mr M] and with his advice and guidance travelled to Colombo by nightfall.\
…
Subsequently, on a later date, when I returned from the mosque in [V]alachchenai, I was informed by my wife that some para-military personnel had visited by house and inquired after [Mr S]. My wife, had informed them that she knew nothing of him and that I was away in Colombo.
Hearing the above, I was scared and suspicious that [Mr S] would have informed the armed forces of the secret medicine transports done by me.
…
When my driver was passing Welikanda, the vehicle was stopped by unknown armed persons and my driver was beaten and they wanted to know of my whereabouts. My driver had confided that I was in Polonnaruwa. Thereafter, they had seized my driver’s mobile phone and released him with the vehicle.
However, these claims were specifically considered by the delegate: see CB p.206, seventh page of the decision in the second and third paragraphs.
The applicant also referred to the claim (that appears in CB p.86), with respect to being forced to transport medicines for the LTTE. However, this claim was also disbelieved by the decision-maker: see CB p.206, last paragraph.
There is no onus on the delegate to make inquiries on behalf of the applicant or to seek to extract further evidence from the applicant that might lead to another basis for claim. The delegate is not required to prompt an elaboration of the matters that the applicant chooses to claim: see generally SZSXH v Minister for Immigration and Border Protection [2014] FCA 914 at [22], per Edmonds J. This is not to say that there are not some circumstances where it is appropriate for inquiries to be made, such as those discussed in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429 at [27].
The matters put in this case are not matters about which the decision-maker had a duty to further inquire. It is not for the decision-maker to attempt to lead further evidence from an applicant. In cases where the duty to inquire is enlivened, it is with respect to a specific piece of evidence that is likely to be significant, or on a practical level, determinative of an issue before the decision-maker. That cannot be said of the situation in this case.
In the circumstances, I am not persuaded that the decision-maker had an obligation to make further inquiries.

Ground 2

In this ground, the applicant alleges that the decision-maker failed to deal with a claim by him that there was an attempted extortion made of him by the paramilitary. The applicant’s arguments in this regard proceed upon the basis that, had the delegate made further inquiries, the delegate ‘might have’ discovered an extortion claim. As counsel for the Minister points out, the claim summarised in the applicant’s outline at pp.2 to 3 (by reference to the applicant’s statement in the CB), is identified in the delegate’s decision at the second and third pages.
The material does not appear to imply an extortion claim beyond the threats of physical violence that the applicant articulated. The claim that has been argued before this Court was not apparent on the material placed before the delegate. Importantly, the delegate rejected the claim that armed members of a paramilitary group had visited the applicant in 2008 (at CB p.206) and also rejected other parts of his claim in this regard: see CB p.210. As counsel for the Minister points out, the factual premises upon which the implications could possibly be drawn (based on the applicant’s argument) were rejected by the delegate and therefore the implications would be without foundations.

Ground 3

The third ground effectively argues the first two grounds through the prism of a failure of the delegate to apply the well-founded fear test with respect to the alleged ‘implicit extortion claim’ that is discussed in grounds 1 and 2.
As I have concluded that this issue or integer was not raised in a way that required the delegate to squarely deal with it, this argument cannot be made out as there was no requirement to deal with this issue.
In the circumstances, I am not persuaded that the applicant has established a ground for judicial review.

Costs

At the end of the hearing, the parties agreed that costs should follow the event. Accordingly, I order the applicant pay the respondent’s costs at the scale.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date: 12 December 2018