Coi17 v Minister for Immigration

[2019] FCCA 1687

FEDERAL CIRCUIT COURT OF AUSTRALIA

COI17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1687

Catchwords:

MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misapplied the well-founded fear test – whether the Authority committed jurisdictional error – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 36

Applicant: COI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1823 of 2017

Judgment of: Judge Humphreys

Hearing date: 19 June 2019

Date of Last Submission: 19 June 2019

Delivered at: Parramatta

Delivered on: 19 June 2019

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondents: Ms Wong, Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5000.00.

DATE OF ORDERS: 19 July 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1823 of 2017

COI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from transcript)

1. The applicant is a Hindu Tamil from Sri Lanka.  On 3 September 2012, the applicant left Sri Lanka illegally and travelled to Australia by boat.  On 12 January 2016, the applicant lodged an application for a Safe Haven Enterprise visa.  On 20 October 2016, a delegate of the Minister for Immigration and Border Protection refused the visa application.  The applicant was referred to the Immigration Assessment Authority (“the Authority”) for a merits review of the decision to refuse his application.  On 19 May 2017, the Authority affirmed the delegate’s decision.  The applicant now seeks judicial review of the Authority’s decision. 

The Applicant’s Claims

1. These claims are set out in paragraph 5 of the Authority’s decision and may be summarised as follows. 

   ·    While working in the construction industry, the applicant was threatened by men from the Karuna group, a political party, on two occasions, the last being in February 2012. The applicant was stopped in late February 2012 by five or six uniformed army officers.  The applicant was then assaulted by a group of men, he believes were from the Karuna group.  As a result of the assault, he sustained a bad back injury. 

   ·    This incident caused the applicant to cease working in the construction industry.  In 2012, he started campaigning fulltime for a Tamil National Alliance candidate (“TNA”) named “Mr T”. The applicant campaigned in provisional elections.  The applicant claims he was threatened by four men from the Karuna group for refusing to make a venue available for the Karuna campaign.  In August 2012, four men from the Karuna group went to his home and badly beat his father and threatened the applicant. 

   ·    Just before the election, the applicant and three other men were stopped in a van by four men with guns. They were from the local Liberation Tigers of Tamil Eelam (“LTTE”). They told the applicant not to support the TNA.  They were told they would be hurt or killed if they were found supporting the TNA again in that particular area.  Again, while campaigning they were stopped by unknown men, robbed and told they would be killed if they supported non-government candidates in the election.

The Authority Decision

1. At paragraph 9 of the decision, the Authority accepted the applicant’s identity and that he is a Sri Lankan national. 

2. At paragraph 17, the Authority found the applicant was not imputed with any LTTE involvement or any anti-government activities.  The Authority accepted that the applicant had not been personally involved in any encounters with Sri Lankan Authorities or had any connection with the LTTE either directly or through the activities of his relatives.  At paragraph 18, the Authority accepted the applicant was threatened by men from Karuna while working in the construction industry.  However, this was in the nature of extortion for monetary purposes of advantage to the assailants rather than anything based on the applicant’s ethnicity, religion, political views or any other matter.

3. At paragraph 21 to 22 of the decision, the Authority accepted the applicant was severely beaten by Karuna men and sustained significant injuries.  At paragraph 24 of the decision, the Authority accepted the applicant and his family had a history of support for the TNA, but found that his support was not prominent, nor did it involve significant responsibilities in 2010.  At paragraph 27, the Authority accepted the applicant’s involvement in the 2012 election but found that, whilst he was recognised in his local area, he did not hold a prominent role representing the TNA. 

4. At paragraph 28, the Authority accepted the applicant was the subject of physical harassment and intimidation. At paragraph 31, the Authority accepted Karuna men targeted the applicant and his father.  At paragraph 32, the Authority accepted that the applicant was robbed at gunpoint while campaigning.  However, the Authority did not necessarily accept that the perpetrators were Karuna men.

5. At paragraphs 33 to 34, the Authority noted updated country information in relation to Sri Lanka and was satisfied there was no real risk of violence or intimidation to the applicant from either Sri Lankan authorities or those who threatened him in 2012, even if he was politically active upon his return.  At paragraph 36, given the changed political landscape in Sri Lanka at the time of the decision, the Authority was not satisfied of risk at the hands of the Karuna group upon the applicant’s return to Sri Lanka. 

6. At paragraph 39, the Authority again found that it was not satisfied that the applicant would face a real chance of serious harm from Sri Lankan authorities on the basis of his Tamil ethnicity, the fact that he originates from the eastern province or any imputed involvement with the LTTE.  The Authority was also not satisfied that the applicant would face a real chance of serious harm as a result of his campaigning for the TNA in 2012 provincial council election. 

7. Paragraphs 40 to 48 of the Authority’s decision, deal with the risks associated with the applicant’s return to Sri Lanka as an illegal departee. The Authority noted the applicant may be detained upon return and placed before a magistrate as an illegal departee from Sri Lanka. If the applicant pleaded guilty he would be fined. If the applicant pleaded not guilty he would most likely be released on his own recognisance or, possibly, be required to provide a surety. There was a small possibility that the applicant could be held in prison for a short period of time prior to being placed before a magistrate. The Authority concluded at paragraph 50, that the applicant did not meet the requirements of a refugee under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).The Authority found at paragraph 59 that there was no real risk that the applicant would suffer significant harm upon return to Sri Lanka and that he did not meet the complementary protection requirements found in s 36(2)(aa) of the Act. 

Grounds of Appeal

1. Three grounds of appear were relied upon, and they are as follows:

   (1)The IAA misapplied the well-founded fear test.

   Particulars

   IAA did not consider the applicant will be imputed with an LTTE profile and as a result will face persecution. 

   (2)The IAA made a jurisdictional error.

   Particulars

   Applicant will be targeted by Karuna Group in the future.

   (3)The IAA made jurisdictional error.

   Particulars

   IAA did not consider crucial and relevant issues about the Karuna Group.  Although there is no evidence of Karuna Group committing any violence, that will change soon. Karuna Group commits killings discretely.

Matters Raised During the Hearing

1. At the hearing before this Court, the applicant did not make any submissions or provide any other material to support the grounds of appeal.  In response, Ms Wong, appearing for the first respondent, was content to rely upon her written submissions. 

Consideration

Ground 1

1. I am of the view this ground must fail at a factual level.  It is clear that the Authority considered the applicant’s claims and that at paragraphs 37 to 39, the Authority concluded the applicant did not have an LTTE profile.  The applicant has not pointed to any evidence that was before the Authority to support the fact that he would be imputed with an LTTE profile, and, indeed, it has not been asserted that either he or his family had any involvement with the LTTE.  The Authority’s conclusion that the applicant would not be given an LTTE profile upon his return to Sri Lanka, was rational and reasonable on the available evidence before the Authority. This claim cannot be sustained as jurisdictional error.  If anything, the claim asks this Court to undertake merits review.

Ground 2

1. The Authority considered carefully the applicant’s risk from the Karuna Group at paragraphs 33 to 39 of the decision.  At paragraph 33 the Authority noted material, in terms of country information, that there was significant reduction in political violence and that the 2015 general election had been largely peaceful without hindrance.  It was noted that the delegate also put to the applicant country information which indicated that the Karuna Group had been demilitarised with no indication that the Karuna Group has been active as a paramilitary group since 2014. 

2. The Authority also noted that some five years have passed since the Provincial Council elections, which occurred in 2012, which gave rise to the fears of the applicant.  The Authority noted at paragraph 36, given the change in the political landscape in Sri Lanka, the non-active status of the Karuna Group in the Eastern Province and the passage of time since the 2012 election that those persons who previously threatened the applicant, will not continue to have any real interest in the applicant upon his return. 

3. There is clear material that the Authority carefully weighed up the available evidence and came to a conclusion based on that evidence.  It is clear to me that those conclusions were open, reasonable and rational and do not constitute jurisdictional error on behalf of the Authority.  Again, if anything, this ground of appeal seeks merits review. 

Ground 3:

1. In relation to Ground 3, no particulars are provided as to what material was before the Authority which would support this claim or what matters it failed to consider.  As set out above, the Authority clearly considered the applicant’s claims regarding the potential risk of future harm from the Karuna Group if he returned to Sri Lanka but rejected that claim.  There is nothing to suggest that the Authority overlooked any individual claim or material relating to the Karuna Group such as to identify jurisdictional error.  This ground also cannot be sustained. 

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 11 July 2019