CGK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 86

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CGK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 86

File number(s):	SYG 1247 of 2018
Judgment of:	JUDGE STREET
Date of judgment:	29 September 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – application for Protection (Subclass 790) Visas – whether the Authority failed to properly assess the applicants’ claims against the complementary protection criteria – whether the Authority failed to consider the whole of the applicants’ claims and evidence – no jurisdictional error – application dismissed
Legislation:	Migration Act 1958 (Cth), pt 7AA; ss 5H(1), 36(2)(a), 36(2)(aa), 473CB, 473DC, 473DD, 476
Division:	Division 2 General Federal Law
Number of paragraphs:	50
Date of hearing:	4 August 2021
Place:	Sydney
Solicitor for the applicants:	In person
Solicitor for the respondent:	Mr L Dennis, Minter Ellison

ORDERS

SYG 1247 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CGK18

First Applicant

CGL18

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	29 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicants pay the first respondent’s cost fixed in the amount of $7,328.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

INTRODUCTION

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 pt 7AA of the Act made on 6 April 2018, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants Protection (Subclass 790) Visas (“the Visas”).

   BACKGROUND

2. The first and second applicant are husband and wife, and are citizens of Sri Lanka.

3. On 23 April 2013, the applicants arrived in Australia as unauthorised maritime arrivals. On 11 April 2017, the applicants applied for the Visas.

4. In summary, the applicants claimed to fear harm by reason of both being Christian Tamils. The applicants also claimed to fear harm by reason of the first applicant being a well-known and active supporter of the Tamil United Liberation Front (“TULF”). The first applicant also claimed to be a member of the Tamil National Alliance (“TNA”).

5. The first applicant claimed that he killed a person in self-defence in 1975 and was sentenced to two years in prison, which was suspended for ten years. The first applicant alleged that the dead man’s son has connections to the Sri Lankan government, the Sri Lankan Army (“SLA”), the Sri Lankan Freedom Party (“SLFP”), and has chased and threatened to kill the first applicant.

6. The first applicant alleged that, on return from having worked in three different countries between 1986 and 1993, SLA officers assaulted him and he was hospitalised.

7. The applicants claimed that their home was burned down in 1990, and that the SLA occupied their land at that time. The applicants claimed that the second applicant’s relative was taken by the SLA in 1990 and has never returned, and that the second applicant witnessed a relative being killed by the SLA in 1992 or 1993 on suspicion of helping the LTTE.

8. The applicants’ claimed that their home was destroyed by a tsunami in 2004, and that they lived in a camp run by the LTTE for one year.

9. The applicants alleged that, between 2010 and 2012, men in black masks came to the applicants’ home five or six times and threatened the first applicant. The first applicant claimed that he made a complaint to the Human Rights Commission of Sri Lanka (“HRCSL”) in both 2010 and 2012, but that the applicants lost their copy of the 2012 complaint.

10. The applicants’ claimed that their son was chased by people known to be against Tamils. The applicants claimed that, for three years prior to their departure, they were monitored and watched by an anti-Tamil organisation. The first applicant claimed that he suffered mental stress because they were targeted and watched, and that he was admitted to a mental hospital as a result. The first applicant also claimed that he has hearing difficulties because he was beaten by the SLA in 1993.

11. The applicants alleged to fear that, if returned to Sri Lanka, they will be arrested and detained because they left the country illegally, because they are Tamil and because of the first applicant’s TULF support.

12. On 17 August 2017, the delegate found that the applicants failed to meet the criteria for the grant of the Visas. 

    BEFORE THE AUTHORITY

13. On 23 August 2017, the Authority wrote to the applicants, explaining that their application had been referred to the Authority for review, and gave the applicants an opportunity to put on submissions and new information. The applicants did put on submissions and new information that was expressly referred to in the Authority’s reasons.

14. The Authority identified the background to the application for the Visas and had regard to the material given by the Secretary under s 473CB of the Act. The Authority identified and engaged with the submissions. The Authority also identified new claims and, consistent with taking into account the whole of the limbs of s 473DD of the Act, found that there were not exceptional circumstances to justify considering the new claims.

15. The Authority also found that the new information in relation to a HRCSL letter, dated 9 September 2017, was not one in respect of which there were exceptional circumstances to justify considering the new information. The Authority provided reasons as to why the Authority declined to exercise its powers under s 473DC of the Act, referring to the provisions of the Act in pt 7AA, and being satisfied that the applicants had an opportunity to present their claims.

16. In the circumstances, the Authority was not satisfied that an interview with the applicants was required. However, the Authority summarised the applicants’ claims and set out the relevant law, including an attachment of applicable law incorporated in the Authority’s reasons.

17. The Authority referred to the first applicant’s fear of harm involving a culpable incident from the dead man’s sons, and identified that there had been a substantial period of time since the incident, and implausibility of the alleged 1997 incident and the significant number of years the sons had if they wished to harm the first applicant, and had not done so. It was in those circumstances that the Authority did not accept that the threats occurred as alleged by the first applicant, or that he was at risk of harm in relation to that incident when he left Sri Lanka.

18. The Authority referred to the incidents involving the second applicant’s relatives, and accepted it as plausible that the second applicant’s relative was killed as described.

19. The Authority referred to an assault incident involving the first applicant in 1993 and accepted that the incident had occurred. The Authority accepted that the first applicant suffered mental health consequences as a result. The Authority found that the applicants did not suffer any further harm as a result of that incident, and found that they did not fear further harm as a result of that incident.

20. The Authority found that the first applicant’s evidence regarding being a member of the TULF or the TNA was vague and unconvincing, and that his involvement ended many years ago. The Authority was not satisfied that the first applicant was anything other than a supporter of the political parties. The Authority identified the absence of documentation. The Authority accepted that the first applicant was a supporter of the TULF and the TNA parties.

21. The Authority accepted that the first applicant made complaints to the HRCSL in 2010 and 2012. The Authority accepted that the applicants may have experienced some intimidation as a result of the first applicant’s support for the TULF. However, taking into account the low-level activities, the Authority did not accept that the intimidation was to the extent claimed.

22. The Authority did not accept that the first applicant had stayed elsewhere due to the threats. The Authority identified the substantial opportunity over a period of years for those allegedly threatening the first applicant to find and harm him, and that they had not done so. The Authority did not accept that the applicants were at risk of harm as a result of the alleged intimidation prior to their departure from Sri Lanka.

23. The Authority found the claim of constant monitoring to be out of proportion to the low level of activities of the first applicant. The Authority did not accept that the applicants were monitored or watched in the three years prior to their departure from Sri Lanka.

24. The Authority found that the applicants had not had any involvement with the LTTE, and took into account that the first applicant was able to return to his family. The Authority also took into account that there was no evidence that the first applicant was ever questioned regarding any LTTE involvement, or that he and his wife feared any harm as a result of the 1993 incident.

25. The Authority referred to country information, and was not satisfied that the applicants had a profile which country information suggests that they would be at risk of harm now and in the reasonably foreseeable future for any actual or impugned LTTE links. The Authority did not accept that the applicants would be identified as persons of adverse interest to the authorities or to any other group because of their involvement with or support of the TULF or TNA.

26. The Authority did not accept that the applicants would be at risk of harm now or in the reasonably foreseeable future as a result of their involvement. The Authority was not satisfied that the applicants would have been of interest to the Sri Lankan authorities or any other person on return to Sri Lanka. The Authority was not satisfied that the applicants faced a real chance of persecution as a result of their Tamil ethnicity, their origin in a former LTTE controlled province, their gender or marital status, or as a result of the homicide incident in 1975, if they returned to Sri Lanka now or in the reasonably foreseeable future.

27. The Authority identified that free health care is available to all Sri Lankans via the public health system, though facilities vary, and referred to country information in that regard. The Authority accepted that the first applicant suffers with mental health, and that he was hospitalised and received treatment in Australia. The Authority was not satisfied the applicants, as Tamils with the medical and mental health issues described, would be denied or unable to access medical treatment and the health services available in the public systems in Sri Lanka, or that they would face societal discrimination a result of those health conditions.

28. The Authority was not satisfied that there is a real chance that the applicants would suffer harm as a result of their medical conditions upon return to Sri Lanka, now or in the reasonably foreseeable future. The Authority found that the applicants could move back to the district where they have family to live with and who would support them. It was in those circumstances the Authority was not satisfied that the applicants faced a real chance of harm on the return to Sri Lanka as a result of their age, or their financial or housing needs not being met.

29. The Authority was not satisfied that the applicants faced a real chance of harm by reason of the SLA having occupied their land, or their home having been burned down. The Authority found that the applicants do not have a profile that would be of adverse interest to the authorities on their return to Sri Lanka. The Authority found that the applicants did not face a real chance of harm for being Tamils who sought asylum in Australia or because they spent a period of time in Australia.

30. The Authority was not satisfied that a brief period of detention in the conditions described, and possible imposition of a fine and questioning, would amount to serious harm. The Authority was not satisfied that there was a real chance of persecution on account of the applicants having departed Sri Lanka illegally.

31. The Authority found that the applicants do not meet the requirements in the definition of refugee in s 5H(1) of the Act. The Authority found that the applicants did not meet the criteria in s 36(2)(a) of the Act.

32. The Authority then turned to the issue of complementary protection, and referred to the findings that it had already been made. The Authority was not satisfied that there was a real risk of significant harm to the applicants. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Sri Lanka, there is a real risk that they would suffer significant harm. The Authority found that the applicants did not meet the criteria in s 36(2)(aa) of the Act. Consequently, the Authority affirmed the decision of the delegate under review. 

    BEFORE THE COURT

33. These proceedings were commenced on 3 May 2018. 

34. The applicants appeared at the hearing by video link, and the Court explained the nature of the hearing. The first applicant identified that he had mental health issues and was not well and had particular problems and was on medication.

35. However, it was apparent from the first applicant’s interaction with the Court, being his assertions that he could not go back to his country, that he did not have any ability to return and that he wanted to stay in Australia, that the first applicant was able to meaningfully engage with the Court. Whilst the first applicant made reference to wanting to be seen in person, the first applicant was on video link and did not seek to engage the video function when the opportunity was raised with him.

36. The first applicant did not put on any meaningful submissions as to the Authority’s decision being the subject of any error. Rather, the first applicant put submissions inviting impermissible merits review, or submissions inviting compassionate and discretionary determination of the application by this Court, which this Court has no power to do.

37. The second applicant also identified the difficulty in looking after the first applicant and caring for him, and her concern as to the inability to survive if returned to Sri Lanka. The Authority expressly addressed the health system available to the applicants on return to Sri Lanka, and also identified that they would return to their home area where they had relatives who would support them.

38. Accordingly, nothing said by the applicants identified any jurisdictional error. 

    THE GROUNDS

39. The Grounds in the application are as follows:

    Ground 1

    1.IAA made a jurisdictional error.

    Particulars

    Applicant supported the LTTE and TULF and will be seen as a supporter of LTTE. He will be persecuted on return. IAA did not conclude Applicant will be persecuted.

    Ground 2

    2.IAA made a jurisdictional error.

    Particulars

    IAA did not deal with complementary protection in that Applicant will be targeted for the accidental murder.

    Ground 3

    3.IAA did not deal with all the issues cumulatively.

    Particulars

    More particulars will be given once the Green Book is received.

    GROUND 1

40. The first Ground reflects a disagreement with the adverse finding by the Authority. In substance, Ground 1 seeks impermissible merits review.

41. In its reasons, the Authority dealt with and considered the applicants’ claims relating to the support of the LTTE and the TULF. The Authority rejected those claims for reasons that were logical and open to it, as summarised above. That included the period of time that had passed and the absence of actual harm to the applicants. Accordingly, there was an evident and intelligible justification for the adverse credibility findings dispositive of the applicants’ claims to be harmed by reason of being a supporter of the LTTE and TULF. 

42. Accordingly, no jurisdictional error is made out in Ground 1.

    GROUND 2

43. In relation to Ground 2, the Authority in paragraph 18 expressly referred to the 1975 homicide incident in considering the issue of whether the applicants met the criteria for complementary protection. Given the findings by the Authority, that were reasonably open and logical on the information before it and for the reasons it gave. This includes rejection on the grounds of implausibility of the 1997 incident allegedly involving the sons and the significant number of years that had passed if the sons has an intention to harm the applicant.  This second Ground also, in substance, seeks impermissible merits review. There was no failure to deal with the claims advanced by the applicants and the Authority made findings dispositive of the whole of the applicants’ claims as summarised above. The Authority was entitled to take into account the findings made in relation to the refugee criteria in determining whether the complementary criteria was met

44. The Authority correctly identified the relevant law in relation to complementary protection and made adverse findings that were open to it and which cannot be said to lack an evident and intelligible justification.

45. No jurisdictional error is made out by Ground 2. 

    GROUND 3

46. In relation to Ground 3, the Authority’s reasons are not to be read with a keen eye for error. On a fair reading of the Authority’s reasons as a whole. The Authority engaged in a detailed and nuanced considered of the applicants’ claims and evidence. Having considered and disposed of each of the applicants’ claims separately, the Authority found that there was nothing further to accumulate. Further the findings made in paragraph 57 and paragraph 62 of the Authority’s reasons are consistent with having taken into account the whole of the applicants’ claims and evidence. 

47. No jurisdictional error as alleged in Ground 3 is made out.

48. The first respondent drew the Court’s attention to the request for the Authority to exercise its powers under s 473DC of the Act. The first respondent submitted that it was open to the Authority to exercise its discretionary powers in declining an interview and that there is an evident and intelligible justification in that regard. That is the opportunity given to the applicants to put on new information and submissions as well as the fact evident from the Authority’s reasons that it had regard to those submissions and the material provided by the Secretary under s473CB of the Act. The Court accepts that submission.

49. The Court accepts that the Authority did not unreasonably exercise its powers under s 473DC of the Act. Further the first respondent submitted that the Authority plainly understood the cumulative requirement of s473DD of the Act. The Court also accepts the first respondent’s submission that the Authority took into account the whole of the limbs of s 473DD of the Act in considering the new information.

50. Accordingly, the Court finds that the application fails to make out any jurisdictional error, and that the application must be dismissed.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate: 

Dated:  29 September 2021