CIO16 v Minister for Immigration
[2018] FCCA 2231
•20 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CIO16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2231 |
| Catchwords: MIGRATION – Protection visa – whether failure to consider clearly articulated claim – meaning of the words ‘intentionally inflicted’ – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473CA and 476(1) |
| Cases cited: SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | CIO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 258 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 10 May 2017 |
| Date of Last Submission: | 10 May 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 20 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Selliah |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Counsel for the Respondents: | Mr D O'Leary |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 258 of 2016
| CIO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 28 July 2016. That decision affirmed the earlier decision of a delegate of the Minister refusing to grant the applicant a protection visa. The application is made pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Act’).
The application proceeded before me on the grounds identified in the Further Amended Application dated 1 May 2017. The grounds of application are as follows:
“1.The applicant claimed that one reason he faced a real risk of persecution if required to return to Sri Lanka was because of his family link to his younger brother whom the SLA believed had voluntarily worked for the LTTE for one or two months. The Immigration Assessment Authority (“the IAA”) found at paragraph 20 of its decision that this family link did not place the applicant within one of the six profile categories in paragraph 17 of its decision. However, a separate question was whether, if the applicant was required to return to Sri Lanka, this feature of the applicant’s background or profile (that is, his family link to his younger brother who was an active LTTE member) would increase the risk or frequency of monitoring of the applicant by the authorities, or the severity of monitoring conditions. The IAA failed to deal with this aspect of integer of the applicant’s claim. This is a jurisdictional error.
2.At the time the applicant departed Sri Lanka in 2012, he had a continuing obligation to report to the authorities. He therefore breached the reporting obligation. A question was whether, if the applicant was required to return to Sri Lanka, he would be punished for breach of the reporting obligation in a manner involving serious harm. The IAA failed to deal with this question. This is a jurisdictional error.
3.…
4.The IAA found at paragraph 44 of its decision that, while the applicant might be remanded in custody for a short period of his return to Sri Lanka, there was “no intention to inflict pain or suffering” within the meaning of this term in s.5(1) of the Migration Act. The IAA misconstrued the term “intentionally inflicted”. This is a jurisdictional error.”
There was a further ground 3, which was abandoned by the applicant at the commencement of the hearing.
Background
Both the applicant and the first respondent have helpfully summarised the background to these proceedings in their written outlines of submissions, and I have paraphrased those summaries below.
The applicant is a Tamil man from Sri Lanka. He arrived in this country as an unauthorised maritime arrival on 27 August 2012. He was subjected to arrival interviews on 6 and 22 September 2012. He was released from immigration detention on a Humanitarian Stay (Temporary) (sub-class 449) visa on 31 January 2013.
He made an initial application for a protection visa on 2 August 2013, but this was invalid because of the terms of the Act which imposed a bar on such applications in his circumstances. The bar was lifted by the Minister, and he was afforded the opportunity of making an application. He made an application for a Safe Haven Enterprise (sub-class 790) visa on 29 October 2015. He submitted a statement of claims at that time.[1]
[1] Court Book (‘CB’) pp 134 – 137.
The applicant was interviewed by a delegate of the Minister on 9 February 2016. The delegate refused the visa application on 20 June 2016. The decision was a ‘fast track decision’ and as such, was automatically referred to the IAA pursuant to s.473CA of the Act. The letter notifying the applicant of the refusal of his visa application provided him with information about the IAA.[2]
[2] CB pp 213 – 215.
The IAA in turn sent a letter to the applicant on 29 June 2016, acknowledging the referral from the delegate, enclosing information about its processes, the material he might provide to it, and the circumstances in which it would be able to consider such material.[3]
[3] Affidavit of Oliver Young, filed 4 May 2017, Annexure A.
The IAA affirmed the delegate’s decision on 28 July 2016 and provided him with its reasons for having done so. [4]
[4] CB pp 240 – 255.
The IAA made findings as to the basis on which the claims to protection were advanced. I reproduce those findings verbatim:
“The applicant’s claims are contained in the information referred to the IAA. They can be summarised as follows:
•The applicant claimed that if he is returned to Sri Lanka, he will be interrogated, tortured and imprisoned due to his race as a Tamil, his political opinion (imputed) as a LTTE supporter and his membership of the particular social group of ‘returnee Tamil from a Western country’.
•He was stopped at an SLA checkpoint in September 2008 when attempting to avoid forced labour by the LTTE and to internally relocate. He had previously obtained an LTTE-issued pass, through the payment of a bribe. This pass had allowed him to go through LTTE control checkpoints. However, at an SLA-controlled checkpoint in Vavuniya the applicant was prevented from passing, and was detained.
•He was accused by the SLA of being a LTTE supporter; he was not released following his interception at the army checkpoint and was detained for a period of approximately seven months. During his detention by the SLA, he was interrogated, beaten and tortured.
•After his release by the SLA, he was required to report to the Sri Lankan CID on a weekly basis and was to inform the CID of his movements. The reporting commenced after his return to his home village of Aaliyavalai in October 2010 when he was approached by the CID and asked to report, and thereafter until his departure from Sri Lanka in 2012 he would be asked to report whenever he came in contact with the CID, and the reporting varied between once a week to once a month depending on when he was asked to report.
•When he returned to the Jaffna area he discovered that his wife and children had separately been detained in an army camp. He had to obtain special permission to visit them once or twice every month until they were themselves released from the army camp some months later during 2009.
•Shortly prior to his departure for Australia in 2012, he was approached by the army CID and asked about his previous detention and whereabouts during the war. He was also asked to pass on any information concerning the LTTE including how he obtained it.
•He will continue to be targeted all areas of the country upon return as a Tamil imputed with a pro-LTTE profile, and his fears in this regard are added to on account of his status as a Tamil returning to Sri Lanka from abroad, which he claims will reinforce the perception on the part of the state that he was a member of the LTTE or at least has a pro-LTTE political opinion.”[5]
[5] CB pp 242 – 243.
Having considered the materials and noting that it had received no new information from the applicant, the IAA made the following findings:[6]
[6] CB pp 242 – 250.
a)The applicant was a Tamil of Hindu faith who resided in the north of the country in areas controlled by the Liberation Tigers of Tamil Elan ‘LTTE’ prior to the cessation of the civil war 2009.[7]
[7] CB p 244 at [14].
b)The applicant had been detained by the Sri Lankan Army for some seven months during 2008-2009 and during that time was subject to mistreatment, including torture.[8]
[8] CB p 244 at [15].
c)The Department of Foreign Affairs and Trade (DFAT) country report indicated.[9]
[9] CB p 244 at [16].
i)that the overall situation for Tamils in Sri Lanka has improved since the end of the civil war;
ii)that the monitoring and harassment of Tamils in the north and east of Sri Lanka has decreased under the new government;
iii)there is a moderate level of societal discrimination against Tamils but there is no evidence of official laws or policies that discriminate based on ethnicity or language; and
iv)Tamil civilians living in former LTTE areas in the north and east, including Tamils that provided low level support to the LTTE may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted.
d)Although UNHCR Guidelines and DFAT reports indicate that people with significant personal or family links to the LTTE may still face a real chance of harm if returned to Sri Lanka, the applicant’s claims, taken at their highest, are not of a nature contemplated within the broader parameters of the kinds of examples cited.[10]
e)The applicant’s release from detention in April 2009 indicated that he did not have a profile attracting on-going interest to the authorities, even at that time.[11]
f)Having considered the applicant’s claim in respect of his younger brother’s brief forcible recruitment to perform work for the LTTE as plausible, the Authority found that it did not place the applicant within the category of persons with family links to persons matching any of the profiles outlined by the UNHCR as at risk of persecution in contemporary Sri Lanka.[12]
g)Country information indicated that the transferral of authority in the northern parts of Sri Lanka from military to civil administration reduced the likelihood of monitoring occurring.[13]
h)It is possible that the applicant may be approached by the SLA or CID in the future if returned to the north where he previously resided, though this would not indicate an on-going interest in the applicant by the authorities or a suspicion of LTTE connections upon return and would not amount to serious harm.[14]
i)The Authority also rejected those aspects of the applicant’s claims to protection that are not challenged in the amended application (see “Returnee Tamil from a Western country”[15] and “illegal departure”[16]).
j)The Authority also rejected the claim to complementary protection.[17]
Ground 1
[10] CB p 245 at [19].
[11] CB p 245 at [19].
[12] CB pp 245-246 at [20].
[13] CB p 246 at [21].
[14] CB p 246 at [21].
[15] CB p 246 at [24]-[28].
[16] CB p 247 at [29]-[36].
[17] CB pp 248-249 at [38]-[45].
With respect to ground 1, counsel for the applicant submitted that having concluded that the applicant’s brother did not come within the profiles identified by the UNHCR for a person with real or perceived links to the LTTE, it failed to consider the separate question of whether the family link to his brother would increase the risk or frequency of monitoring of the applicant by the authorities. In counsel’s submission, the finding as to the UNHCR profiles did not dispose of the question of whether the applicant faced a real risk of persecution as a result of the level of association his brother actually had with the LTTE.
Further, country information supported a conclusion that the applicant might face an increased frequency of monitoring if the authorities became aware of the link to his brother. This was particularly the case given the Sri Lankan authorities did not accept that the applicant’s brother had been forcibly recruited by the LTTE.
Finally, it was submitted that the IAA did not have regard to the additional interest the authorities would have in him when the association with his brother became apparent to them.
In essence, it was submitted that the IAA failed to consider a claim, or integer of a claim, relating to increased or more severe monitoring conditions when the authorities discovered the relevant link.
Ground 2
As to ground 2, the applicant submits that the IAA did not consider the impact on him of the breach of his reporting obligation when he left Sri Lanka in 2012. It was submitted that this was a clearly articulated claim arising squarely on the materials before the IAA.
Ground 4
The asserted misconstruction of the term ‘intentionally inflicted’ in s.5(1) of the Act is based on the submission made in SZTAL v Minister for Immigration & Border Protection,[18] which was rejected by the Full Court. Since hearing submissions in this matter, an appeal against that decision was dismissed by the High Court.[19] That disposes of this ground.
[18] [2016] FCAFC 69.
[19] (2017) 347 ALR 405.
Consideration
It is well-established that a failure to consider or make a finding on a substantial and clearly articulated claim may give rise to a jurisdictional error on the basis of a constructive failure to exercise jurisdiction.[20]
[20] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117; SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452.
I am not satisfied that the applicant has established that there was a failure on the part of the IAA to consider a relevant issue or claim advanced by him. The question of whether the link to his brother would increase the risk or frequency and/or severity of monitoring of his movements by the Sri Lankan authorities was not clearly articulated as a separate question that required consideration. The claims set out in his statutory declaration[21] were articulated on the basis that he would be at risk of being tortured and killed as a Tamil who had previously been accused of having LTTE sympathies, detained, tortured, and then subjected to reporting requirements. The IAA assessed his application on that basis and accepted that the history he gave was plausible. I accept the submission of the first respondent that, in dealing with the applicant’s claims, it acted on the basis that the history with respect to his brother was also plausible.
[21] CB pp 80 - 83.
In applying the UNHCR guidelines as to the profiles of a person at risk for Sri Lanka, the IAA satisfied itself that the applicant’s brother did not fall within any of the profiles and that as such the applicant did not fall within item (6), being a person with family links to a person with a relevant risk profile.
I accept the submission of the Minister that any implications of the applicant’s link to his brother were subsumed in that finding.[22]
[22] CB pp 245 - 246 at [20].
Further, the complaint that the IAA did not consider the risk of an increase in frequency and severity of monitoring by the authorities is subsumed by the more general finding that country information had led it to conclude that the applicant would not be of “ongoing interest to the authorities.”[23]
[23] CB p 246 at [21].
I am satisfied that the applicant’s claims as presented were squarely addressed by the authority. It was not the role or the responsibility of the IAA to rearticulate the claims made in order to cover every conceivable angle from which a claim might possibly be made.[24]
[24] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46].
I dismiss ground 1.
Similarly, I regard ground 2 as another example of an attempt to recast the claims made by the applicant. I am satisfied that there was no claim made on the basis of increased risk because of a failure to comply with reporting obligations since the time of his departure. The authority considered the implications of his illegal departure and returning from a Western country and made an overall assessment of the risk of persecution. In other words, the claim as clearly articulated. I dismiss ground 2.
With respect to ground 4, as I have indicated, the argument underpinning that ground has been rejected by the High Court. I dismiss ground 4.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 20 August 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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