CGV17 v Minister for Immigration

[2018] FCCA 206

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGV17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 206

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth) s.473CA

Applicant: CGV17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 487 of 2017

Judgment of: Judge Vasta

Hearing date: 24 January 2018

Date of Last Submission: 24 January 2018

Delivered at: Brisbane

Delivered on: 24 January 2018

REPRESENTATION

Counsel for the Applicant: Mr S. Barataraj

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application filed on 26 May 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 487 of 2017

CGV17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this Court on 26 May 2017, the Applicant, CGV17, has asked this Court to review a decision of the Immigration Assessment Authority (“ the IAA”) which itself affirmed a decision of the delegate to the Minister not to grant the Applicant a protection visa. 

2. In short compass, the Applicant is a citizen of Sri Lanka.  On 18 November 2012, he arrived in Australia by boat as an unauthorised maritime arrival.  He has now applied for a temporary protection visa or a safe haven enterprise visa.  He was interviewed by the delegate on 29 September 2016 and the delegate refused to grant the Applicant the visa on 7 October 2016.

3. Because that decision was a fast track decision, the delegate’s decision was required to be referred to the IAA in accordance with s.473CA of the Migration Act 1958 (Cth) (“the Act”) and the IAA ended up affirming that decision on 27 April 2017.

4. The Applicant claims that he is of Tamil ethnicity and is a Muslim.  He was born and raised in Mullaitivu.  That area is an area that had been controlled by the LTTE or the Tamil rebels during the prolonged civil war that was occurring in Sri Lanka.

5. He made claims that simply because of where he was born he was always treated with a degree of suspicion by the general Sri Lankan populace but also by government sympathisers when he travelled out of that area.  He spoke about his uncle’s brother’s son being part of a group that were rounded up and killed by government personnel.  He said he witnessed such a killing and ran away. 

6. He does not seem to have been able to be identified because of that. Such a killing occurred in 2006. The Applicant said between 2008 and 2012 he was arrested and jailed by police between seven to 10 times, though he could only recall two of those incidents. 

7. He spoke of having been, in effect, lured out of his mechanics shop by two persons who took him into the jungle, blindfolded him and interrogated and threatened him.  They tied him to a tree for two days until he was freed by some hunters who happened to be going through the jungle. 

8. He said because of all of these matters he feels that if he returned to Sri Lanka he would be suspected of being involved with the LTTE and therefore would suffer. 

9. The IAA considered all of the claims that the Applicant made.  They made quite a number of findings in his favour; one of which involves a letter that is on page 85 of the Court book.  That letter talks about the fact that the brother-in-law had been killed.  The Applicant said that it was the government forces that killed his brother-in-law and yet the letter says that it was LTTE terrorists who had perpetrated the killing.

10. One would think that this would be a serious credibility failure on the part of the Applicant.  However, the IAA did not come to that conclusion and I will quote from paragraphs 28 and 29 to show the even-handed manner in which the IAA has assessed the application.  Paragraph 28:

    “28. In addition to these claims, the applicant claims he was witness to a massacre near Pottuvil in 2006. The applicant has provided documents in support of these claims. The first is a form of typed attestation from the applicant that appears to have been certified by the President of a mosque in Pottuvil. It details the applicant’s accounts of the 2006 killings. Another document is from the Pottuvil Police Station confirming the killing of a man on 17 September 2006 by the LTTE, and indicates that a police report was made on 18 September 2006, and a case filed in the Pottuvil Court.

    29. I note the police report differs from the applicant’s account in that he claims the crimes were perpetrated by the Sri Lankan security forces, while the police report indicates the LTTE was responsible. That discrepancy is not insignificant.  However, if the Sri Lankan authorities were involved in the attack, I find it plausible that the authorities would seek to blame the LTTE for the attacks, and vice versa. I am prepared to give no weight to that discrepancy.”

11. Those two paragraphs show the absolute even-handed manner in which the IAA assessed the Applicant’s claims.  In the end, the IAA accepted the Applicant had no ties to the LTTE, which is what he had always professed. 

12. However, the IAA also found that if he were returned to Sri Lanka that the mere fact of his being from the particular area that had been controlled by the LTTE would not be a basis upon which he would be harassed or suffer serious harm.  This conclusion was backed up by country information in the form of reports from the United Nations.

13. The IAA also looked at the fact that the Applicant may well have been the subject of arbitrary detention and a form of victimisation from the police in the past.  It did not discount at all his tales of being arrested and jailed on seven to 10 occasions. 

14. However, the IAA noted that despite these convictions the Applicant was able to leave the country in 2009 and return in 2010 using a valid passport. The IAA accepted that the Applicant may have been questioned by authorities on other matters after he returned but he was not arrested or jailed after coming back into the country.

15. As to the tying up to a tree, the IAA was prepared to accept that that may have been a callous and cruel act but the IAA was not satisfied that the authorities thereby had concluded that the Applicant had any LTTE links or that their intention was to kill him. 

16. The IAA was then satisfied that the Applicant would face no risk of harm in connection with these events into the future. 

17. The IAA looked at whether the Applicant would fear harm on the basis of his Muslim faith, even though this was a not a claim that the Applicant had made, and concluded that whilst the Applicant may experience some low-level societal discrimination, there was no real chance of the Applicant being seriously harmed due to his religion.

18. The IAA also looked at whether the Applicant returning to Sri Lanka as a failed asylum seeker and a person who had left the country illegally would mean that the Applicant would then suffer because of that. Using country information again, the IAA concluded that there would not be any serious harm faced by the Applicant because of that. 

19. Therefore, the IAA affirmed the decision. 

20. In the application for judicial review there were two grounds.

21. The first was that the IAA misapplied the well-founded fear test in that it failed to take into consideration long-term attitude of the authorities to the Applicant.  The particulars of that ground were that the IAA did not correctly consider that the long term suspicion about the Applicant would end in persecution.

22. That ground has absolutely no merit.  One looks at this very thorough decision of the IAA and sees that the well-founded fear test was enunciated properly and considered very thoroughly.  The Applicant may not like the conclusion that the IAA came to but that does not mean that the IAA did not do what they were supposed to do. 

23. The second ground is IAA made a jurisdictional error of natural justice and the particulars were that the IAA did not put to the Applicant the country information relied upon. It’s trite to say that the parameters for natural justice before the IAA are considered in Part 7AA of the Act.

24. There is no necessity for the IAA to put to the Applicant any country information.  I do note, however, that the country information that the Applicant says was not put to him was all in his favour in any event and it corroborated his claim that there is still some form of fervour by the government to ensure the LTTE pockets of resistance do not get a chance to coalesce to a point where they become a threat to the security of a nation again.  This information would be in keeping with what the Applicant has been saying.  The Applicant’s point is that he would be identified as an LTTE sympathiser.  The IAA did not agree.

25. Today, Mr Barataraj, who appeared for the Applicant, reiterated some of those claims and spoke of the rules with regard to the way in which the IAA should assess credibility.  There was no true cavil with the method by which the IAA assessed the Applicant’s credibility.  The disagreement on Mr Barataraj’s point really was that he did not like the actual conclusion that the IAA came to. 

26. Having a look at how the IAA came to its point, it does not seem to me that it has engaged in anything other than a proper assessment of the Applicant according to the norms that it must apply in assessing all matters.

27. As has been said a number of times, these matters before this Court are reviews.  They are not appeals.  It is not to the point whether there should have been another conclusion.  The question is whether there could have been another conclusion.  In other words, was the finding that the IAA made open to it on the evidence? 

28. In this case, the conclusions that the IAA made was certainly open to it on the evidence and in many respects the conclusions were very generous. 

29. Having looked at all of the matters, having considered the material and having considered the submissions that Mr Barataraj quite fairly submitted to the Court on 10 January 2018, I am of the view that there has been no jurisdictional error illustrated.  In those circumstances I refuse the application. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  29 March 2018