CLN17 v Minister for Immigration
[2019] FCCA 3
•11 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLN17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority made findings that were legally unreasonable considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.5H |
| Cases cited: DAO16 v Minister for Immigration [2018] FCAFC 1 |
| Applicant: | CLN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1781 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 11 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application as amended by leave on 11 December 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1781 of 2017
| CLN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 10 May 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka, who arrived in Australia at Cocos (Keeling) Islands as an unauthorised maritime arrival.[1] On 28 September 2015 the applicant was invited to make a valid application for a specified visa. The applicant subsequently applied for a Safe Haven Enterprise (Class XE) visa (SHEV) on 13 November 2015 via his appointed migration agent.[2] Included with that SHEV application was a statutory declaration dated 13 November 2015 setting out his protection claims.[3]
[1] Court Book (CB) 13 and 125
[2] CB 16
[3] CB 55
On 1 April 2016 the applicant attended an interview with the delegate.[4]
[4] CB 126
On 15 April 2016 the applicant, via his migration agent, made a written submission to the delegate.[5]
[5] CB 87
On 17 October 2016 the delegate refused to grant the applicant a SHEV.[6] The delegate's decision was a fast track reviewable decision and was referred by the Minister to the Authority for review on 20 October 2016.[7] On 10 November 2016 the applicant, via his migration agent, made a written submission to the Authority.[8] On the following day the applicant, via his migration agent, submitted a statutory declaration dated 11 November 2016 to the Authority.[9]
[6] CB 122-137
[7] CB 142
[8] CB 164-169
[9] CB 176
On 10 May 2017 the Authority made a decision affirming the decision under review.[10]
[10] CB 185
The applicant’s claims
The applicant claimed to fear harm in Sri Lanka on the basis of his Tamil ethnicity, because he provided assistance in the past to the Liberation Tigers of Tamil Eelam (LTTE), because his relatives were involved with the LTTE, as a failed asylum seeker, and as a person who left Sri Lanka illegally. In support of these claims, the applicant recounted interactions he and his family had with authorities including being beaten, interrogated and subject to reporting requirements.
Authority decision
The Authority rejected the applicant's claims on the basis of adverse credibility findings and because they did not give rise to a real chance of serious harm or a real risk of significant harm. The Authority made the following key findings:
a)from 1998 to 2000 the applicant was forced to assist the LTTE by providing two LTTE cadres with food and deliveries;[11]
b)the applicant's uncle, KA, was arrested by police and hospitalised following a fracas arising from a protest in December 2002;[12]
c)the Authority did not accept that the Sri Lankan Army (SLA) had any interest in KA in December 2002, and therefore did not accept that the SLA searched the applicant's home for KA, beat the applicant, interrogated him about KA and other family members who had been in the LTTE, and detained the applicant for a month in a SLA camp;[13]
d)the applicant was not interrogated and mistreated by the SLA in early 2006;[14]
e)the authorities in Sri Lanka considered that the applicant's provision of food and delivery duties to the LTTE was not significant enough to impute him with a profile of interest;[15]
f)it was not plausible that after the applicant's return to Sri Lanka in 2011 he was visited by two SLA officers, and was required to report weekly to the SLA camp where he was beaten and threatened;[16]
g)the Authority accepted that the applicant had some family members who were killed fighting the LTTE, but was not satisfied that the applicant now faces a real chance of harm due to his provision of food and delivery services between 1998 and 2000, or because of his family links to LTTE members;[17] and
h)the applicant did not face a real chance of harm due to the death of his friend, ANP.[18]
[11] CB 189: [14]
[12] CB 189: [16]
[13] CB 189: [17]
[14] CB 190: [20]
[15] CB 190: [21]
[16] CB 190: [22]
[17] CB 190–191: [23]
[18] CB 191: [24]
In light of these findings, country information and the applicant's profile, the Authority did not accept that the applicant would face harm on account of any LTTE connections or support,[19] his Tamil ethnicity,[20] or as a failed asylum seeker.[21] In relation to the applicant's illegal departure, the Authority found that any experiences or penalties on return would not amount to serious harm[22] and that the applicant would face a “generally applicable law”.[23]
[19] CB 189–191, 194: [17], [20]–[24], [44]
[20] CB 191: [25]–[28]
[21] CB 192–193: [37]
[22] CB 192: [35]
[23] CB 192: [36]
For those reasons, the Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act 1958 (Cth).[24] For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion.[25] In this context, the Authority found that the applicant would not face significant harm on account of his illegal departure.[26]
[24] CB 193: [38]
[25] CB194: [44]-[45]
[26] CB 193–194: [41]–[43]
The present proceedings
These proceedings began with a show cause application filed on 8 June 2017. At the trial of this matter on 11 December 2018, I gave leave for the applicant to rely upon an amended application handed up in court on that day. There is one particularised ground in that application:
The [Authority] made findings that were legally unreasonable.
Particulars
By:
(i) Accepting the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka and the claim by the Applicant to face harm from the authorities on the basis of his support role for the LTTE and relatives who were combatants; and
(ii) Accepting that the Applicant would face interrogation upon his return;
(iii) Giving weight to whether the Applicant had been harmed by the authorities when he was last in Sri Lanka;
The Assessor has made a decision which is legally unreasonable.
The only evidence I have before me is the court book filed on 22 August 2017.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial.
Consideration
The one ground of review contends the Authority’s decision was unreasonable having regard to the UNHCR Guidelines and the factual matters accepted by the Authority. To the extent that the applicant's ground asserts that the Authority’s findings were illogical or unreasonable, the Minister submits that the Authority gave cogent reasons in support of its findings and that those findings were not ones at which “no rational or logical decision maker could arrive on the same evidence”.[27] SZMDS sets a very high threshold for findings of irrationality or illogically.[28] Crennan and Bell JJ added in SZMDS at [135] that:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[27] Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] FCA 16 at [130]
[28] and see also Gupta v Minister for Immigration [2017] FCAFC 172 at [34]-[36]; DAO16 v Minister for Immigration [2018] FCAFC 1 at [30]
The Authority made a number of findings in favour of the applicant. These included: [29]
a)that in the area from which the applicant originated, "all persons residing in these areas necessarily encountered the organisation and its administration in their daily lives";
b)that the mostly Tamil "civilian populations … were required to interact with the LTTE's military and civil administration as a matter of course"; and
c)this included payments and the "voluntary and forced recruitment" of Tamils.
[29] CB 189: [14]
Critically, in 1998 the applicant was forced to assist the LTTE by providing two cadres with food and delivering things for them.[30]
[30] CB 189: [14]
Having accepted the core of the applicant’s claims, the Authority then turned to findings regarding KA:
a)the Authority accepted he had been arrested and hospitalised following an associated fracas;[31]
b)however, the Authority did not accept other aspects of this account.
[31] CB 189: [16]
Further, other core claims were accepted also:[32]
I accept that the applicant had some family members who were killed fighting for the LTTE. At the PV interview the applicant stated that he himself was never a member of the LTTE, but may be imputed with LTTE links due to providing food and delivery services for the LTTE and because of his family connection to two uncles and an aunt who were killed fighting for the LTTE. In its current guidelines, the UNHCR states that certain links to the LTTE may give rise to a need for protection.
[32] at [23]
The applicant submits that it is irrational for the Authority to dismiss the UNHCR Guidelines as to risk profiles of a person who delivered LTTE supplies and had family members who were LTTE combatants on the basis that prior to leaving he had not been attacked or brought to the attention of the authorities.
In my opinion, the applicant’s complaints about the Authority’s analysis do not rise above a strenuous dispute over the Authority’s reasoning and the outcome. While it is true that the Authority accepted a number of claims made by the applicant, which were sufficient to place him in a category of persons potentially at risk of harm in Sri Lanka, the Authority rejected the applicant’s claims of harm in the period between 2006 and when he departed Sri Lanka to come to Australia. At [22] of its reasons, the Authority stated:
While Sri Lankan authorities remain sensitive to the re-emergence of the LTTE and do monitor former members and supporters, country information suggests that overall, former LTTE leadership are at the highest risk of monitoring, arrest, detention or prosecution. I have not accepted that the applicant was detained by Sri Lankan authorities and the available evidence is that he has never been arrested or charged with any offence. I have concluded that the applicant was not of ongoing interest to Sri Lankan authorities when he left for Qatar in April 2006. After considering the country information above and the applicant's insignificant profile, I do not accept as plausible that after his return to Sri Lanka in 2011 he was visited by two SLA officers inquiring about his whereabouts over the past few years or that he was required to report weekly to the SLA camp where he was beaten and threatened.
As was made clear by the High Court in Minister for Immigration v Guo[33] it is open to decision makers like the Authority to make a forward looking assessment of the risk of harm facing the applicant by reference to past events. In the present case those past events presented a mixed picture, but in the more recent past, the Authority found that the applicant had not suffered harm.
[33] (1997) 191 CLR 559 at 575
It cannot be said that only one conclusion was open to the Authority. Nor can it be seriously contended that the impugned finding was not open to the decision maker (albeit, the applicant may not agree with it). As Griffiths J stated in Minister for Immigration v Stretton,[34] “to describe reasoning as unreasonable (or irrational) may merely be an emphatic way of disagreeing with it”.[35]
[34] (2016) 237 FCR 1 at [74]
[35] referring to Re Minister for Immigration; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [5] per Gleeson CJ and Minister for Immigration v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [34]
It also cannot be said that the Authority’s reasons lacked an “evident and intelligible justification”.[36]
[36] Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]
In particular, the Authority expressly noted “the UNHCR states that certain links to the LTTE may give rise to a need for protection”.[37] Plainly, this information contemplates that individual circumstances of each case must be assessed. Further, the choice and the assessment of the weight of country information is generally a matter for the Authority.[38]
[37] CB 190: [23]
[38] NAHI v Minister for Immigration [2004] FCAFC 10 at [13]
Moreover, to the extent the applicant contends the Authority failed to apply the correct test, the Authority set out and applied the forward-looking test and made findings that were dispositive of the applicant’s claims.[39]
[39] Guo at 574
Finally, it should be noted that the Authority’s reasoning at [5] and [7][40] concerning the receipt of new information was not challenged.
[40] CB 186
Conclusion
I conclude that the applicant has been unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 February 2019
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