COZ16 v Minister for Immigration - [2017] FCCA 979

FEDERAL CIRCUIT COURT OF AUSTRALIA

COZ16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 979

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Authority took into account the siblings’ suspected links to the LTTE – the Authority expressly referred to having considered the applicant’s claims individually and cumulatively – the adverse findings made cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CB, 476

Applicant:

COZ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2479 of 2016

Judgment of:

Judge Street

Hearing date:

15 May 2017

Date of Last Submission:

15 May 2017

Delivered at:

Sydney

Delivered on:

15 May 2017

REPRESENTATION

Solicitors for the Applicant:

Mr S Hodges

Hodges Legal

Solicitors for the Respondents:

Mr A Keevers

Sparke Helmore

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2479 of 2016

COZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 Part 7AA of the Act made on 16 August 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant departed Sri Lanka illegally by boat end of August 2012 and entered Australia on 10 September 2012. On 9 December 2015, the applicant lodged a valid application for a Safe Haven Enterprise visa.

The delegate’s decision

On 12 July 2016, the delegate refused the applicant’s application. The applicant claimed to fear harm by reason of his Tamil ethnicity, having lived in the Northern Province, his imputed or actual links to the LTTE, his family links to people who have been suspected of having LTTE links, having departed Sri Lanka illegally, and having to apply for asylum in Australia.
Both in the invalid application for protection and in the current valid application for protection, the applicant provided a statutory declaration identifying that two of his siblings, a brother and sister, had been taken in 2009 and had not since been released. The applicant and his mother made complaints in relation to the missing brother and sister since they were released from a detention camp in 2009.
The applicant claimed that in August 2012 four men came to the applicant’s house in search of him and on this occasion they threatened to harm the applicant if he continued to pursue the disappearance of his siblings through organisations such as the Human Rights Commission.

The Authority’s decision

The Authority identified the background in relation to the lodgement of the valid application for protection and that the applicant was accepted by the delegate in relation to his claims that his brother and sister were taken from the family in 2009 under suspicion of LTTE involvement and had not since been located. The Authority noted that the delegate accepted that the applicant was subject to monitoring and question from authorities after the war and that the applicant was threatened in relation to a complaint that he lodged regarding his siblings’ disappearance with the Sri Lankan Human Rights Commission.
The Authority referred to the delegate’s finding that his mother had also lodged many similar complaints without harm and found that the country information supported that the conditions in Sri Lanka had changed. The Authority noted that the delegate found that the applicant would not face a real chance of persecution or real risk of significant harm upon return.

Information before the Authority

The Authority identified and had regard to, the material referred to the Authority under s.473CB of the Act and identified the submission dated 30 July 2016, to which the Authority had regard and the correspondence of 28 April 2016, in respect of which the Authority was not satisfied that there were exceptional circumstances to justify considering that new information.

Consideration of the applicant’s claims for protection

The Authority identified the applicant being a Tamil Hindu from the Northern Province and identified that from his birth until 2009, he resided in LTTE-controlled areas and that towards the end of the war, as the Sri Lankan Army (“SLA”) were advancing, his family were constantly moving around to stay within the LTTE-controlled areas.
The Authority noted the applicant’s claim that in April 2009 the SLA captured the area in which he and his family were and that the applicant and his family were transferred to a particular checkpoint and their personal details recorded. At that checkpoint two of his siblings were suspected to be LTTE cadres and were taken from the family. The applicant noted that his family was informed that his siblings would be questioned and released. The applicant said that a few days after he and his family were transferred to an army camp without his brother and sister. The applicant alleged at that army camp they were detained for approximately six months.
The applicant alleged that although they were not physically harmed, he feared he would be, particularly as he was interrogated on three occasions by the Criminal Investigation Department (“CID”) officers, and the applicant asserted that the officers repeatedly asked whether he was a member of the LTTE and if he had connections or links to the LTTE.
The Authority identified that the applicant said on 16 November 2009 he was released with his other family members who were in the camp, but that the two siblings remained missing to this day. The Authority noted the family’s belief that both siblings are held in a secret prison somewhere in Sri Lanka due to their perceived involvement with the LTTE.
The Authority referred to the applicant’s assertion that on 3 August 2010 he lodged a complaint regarding the disappearance of his brother and sister with the Human Rights Commission, and that in around November 2010 the family received a written response indicating that the siblings were taken into the army’s custody.
The applicant alleged that one month late CID officers came and interrogated him at the house for approximately an hour and then left. The applicant indicated that they had asked him if he was a member of the LTTE, if he helped the LTTE and if he knew anyone in the area who was connected with the LTTE. The applicant alleged that from then on the CID would return to ask the same questions every two or three months. The applicant alleged during these interrogations the men spoke aggressively, but that he was not physically harmed.
The Authority referred to the applicant’s claim during August 2012, that a few weeks prior to fleeing Sri Lanka four men claiming to be CID officers came to the applicant’s house in search of him. The Authority referred to applicant having never met those men previously, and unlike the previous occasions they did not show identity cards. The applicant indicated that the men asked the same previous questions, but also threatened to harm him if he continued to pursue the disappearance of his siblings through the organisation such as the Human Rights Commission. The applicant alleged that they had said to him that if he did not do as he was told he would suffer the same fate as his missing siblings. The applicant said that he feared the authorities would carry out these threats and departed Sri Lanka in August 2012. The applicant identified that his mother continues to search for the missing siblings to this day.
The Authority noted that the applicant said he fears being abducted and killed by the Sri Lankan authorities for reasons of his suspected involvement with the LTTE because he originates from a particular area, he has family members perceived to be LTTE cadres, he was already suspected and regularly interrogated, and sought asylum in Australia. The applicant also feared harm in relation to the threat he received in response to his Human Rights Commission complaint, and because he left Sri Lanka illegally.

Consideration of refugee criterion

The Authority identified the relevant law. The Authority found and accepted that neither the applicant, nor any member of his family including the siblings who had been detained had any actual involvement with the LTTE, and that any interactions with the LTTE resulted from the family residing in LTTE-controlled areas. The Authority accepted that at the end of the war, the applicant’s siblings were separated from the family and taken for interrogation at the checkpoint at the end of the war. The Authority found the applicant’s suggestion plausible that they may have been singled out due to their age and because LTTE cadres were among the mingling crowd at the checkpoint at the time, some of whom were surrendering. The Authority accepted that the brother and sister were never released and that this suspicion was never lifted.
The Authority referred to the UNHCR including persons with family links to former LTTE combatants, or cadres among its risk of profiles. The Authority noted that the UNHCR also advises that the issue of whether a person with an unidentified profile is in need of protection depends on the specifics of the individual case.
The Authority accepted that following the separation of the siblings, the family was taken to an army camp for several months and during the detention that the applicant was interrogated on suspicion of LTTE links and supports that materially the Authority found the applicant was not harmed. The Authority referred to country information, indicating that in the aftermath of the war the Sri Lankan authorities feared an LTTE resurgence. Reference was made to the authorities maintaining efforts in seeking out and arresting, detaining and remanding in rehabilitation centres both high and low profile LTTE members, as well as non-members they suspected had assisted the LTTE, even if the involvement was purely peripheral. The Authority found the fact that the applicant was not harmed, formally charged or detained for a longer period at the time of his release from the army camp in December 2009 indicates that the authorities did not believe the applicant was engaged in LTTE activity.
The Authority accepted that the applicant travelled to Colombo to lodge a complaint regarding his siblings’ disappearance with the Human Rights Commission in August 2010. The Authority accepted that approximately one month after lodging the complaint the applicant became subject to ongoing home visits by the CID every two to three months in which he would be interrogated for approximately an hour.
The Authority noted, in relation to the proximity of the time of the complaint, that the applicant does not claim he was questioned about the complaint, or even about his siblings’ activities before the August 2012 visit. The Authority referred to country information indicating that around this time authorities conducted home visits and questioned and observed Tamils from former LTTE-controlled areas in the North. The Authority was satisfied that the visits, and questioning from the authorities between 2010 and August 2012, were as a result of a routine monitoring by authorities commonly conducted against Tamils in the Northern Province at the time.
The Authority accepted these visits were intimidating and that the applicant started looking for an opportunity to leave Sri Lanka to avoid these problems. The Authority nevertheless found that the applicant was never physically harmed, formally arrested, detained or taken away for rehabilitation, or any other purpose, which would indicate that the authorities believed he was engaged in LTTE activity, or that they imputed him with LTTE membership or support on account of his familial links to his siblings.
The Authority found in relation to the August 2012 incident that this was different to the previous occasions and accepted that unlike previous occasions where officers would present evidence of their identity to the applicant and involved the same persons, that the persons who attended in August 2012 were unknown to the applicant and did not identify themselves. The Authority accepted that those persons asked the applicant the same usual questions about LTTE involvement, support and knowledge of the LTTE connections, but they also raised with him the issue of his Human Rights complaint and threatened him not to pursue the matter.
The Authority found that it was unusual that the applicant’s mother was not threatened on this occasion in relation to her complaints and reports, and noted the applicant speculated this was because the process with the Human Rights Commission was to contact the SLA directly for response.
The Authority referred to country information, indicating that intimidation, harassment and threats, were carried out against some complainants of enforced disappearances. The Authority found it was not implausible that the applicant was threatened as claimed and that these unknown persons may have been members of an armed para‑military group colluding with certain authorities at the time. The Authority noted the applicant did not provide the names of any such groups operating in that area. The Authority were satisfied that the applicant had not previously had any problems with such persons apart from the single occasion of questioning.
The Authority made reference that in almost four years since the applicant has been in Australia, the situation has changed considerably. The Authority referred to the mechanisms that have been established to support investigations and inquiries into missing persons. The Authority made reference to October 2015 when the Sri Lankan government decided to issue official certificates to families affirming the status of their disappeared relatives as missing rather than deceased, thereby recognising the sensitive emotional needs of remaining family members, allowing them to access certain benefits, and recognising the need for continued investigations.
The Authority also made reference to December 2015 when the Sri Lankan government signing the International Convention on Enforced Disappearance and committed to criminalise enforced disappearances. The Authority referred to the applicant having lodged one complaint to the Human Rights Commission, and that his mother lodged numerous complaints and reports with various bodies, both before August 2012, threat against the applicant and subsequently including while the applicant has been in Australia. The Authority noted that the applicant affirmed at the interview that his mother has not been threatened or harmed on account of her pursuits, despite her continued efforts. The Authority was satisfied that apart from conducting six-monthly registered checks involving home visits by authorities, the applicant’s family has not been approached by the authorities or unknown men at any other time. The Authority was satisfied that they have not been interrogated about the applicant, the complaint to the Human Rights Commission, or any other body, or the applicant’s siblings, and have not been harmed or threatened.
The Authority made reference to the circumstances suffered by the applicant’s family being tragic, and the Authority accepted that unknown persons threatened the applicant on one occasion. However, the Authority found it was reflective of harassment and intimidation at the time and noted that the applicant had lodged the complained six years ago, and that his mother has continued to agitate and continued to pursue the complaint with no threats or harm having come to her, or any other member of the family.
The Authority noted the applicant’s mother’s experience, including the almost four years since he had been in Australia, and the country information above indicating a more transparent environment having developed in Sri Lanka to address the thousands of unresolved enforced disappearances and support of families of missing persons.
The Authority was satisfied while the applicant was interrogated at the end of the war and was subsequently subject to monitoring, the applicant was not himself perceived as being an LTTE member, and did not have a profile that led him to being physically harmed, arrested or detained by authorities.
The Authority found the threat in August 2012 was an isolated incident in his numerous interactions with authorities over the previous two years. The Authority found that whilst the government has kept a close watch on the situation in former LTTE-controlled areas including the applicant’s Northern Province, the changes in Sri Lanka since the applicant’s departure, including for persons of the applicant’s profile are significant.
The Authority made express reference to accepting that the applicant fears becoming a victim to enforced disappearance like his siblings. However, the Authority was not satisfied the applicant faces a real chance of harm from authorities, or those colluding with them now or in the reasonably foreseeable future, on the basis of his Tamil race, or his Tamil race and origins from the north, nor for his familial links to his siblings, or his complaint to the HCR.
The Authority referred to the country information and found it did not indicate that the applicant would face persecution in the reasonably foreseeable future on account of his being a Tamil of male gender. The Authority found that the applicant was not considered an LTTE member and was not considered to meet an LTTE supporter profile. The Authority found that the applicant’s profile had not been elevated since he had left Sri Lanka, and was not satisfied that his profile is such that the applicant has a well-founded fear of persecution on the basis of any imputed LTTE support or links.
The Authority accepted that the applicant returning to Sri Lanka would be returning as a failed asylum seeker who departed illegally. The Authority found that the applicant may be subject to a brief period of detention upon return to Sri Lanka while he undergoes questioning before being released. The Authority found that the applicant, in relation to the questioning and processes, would be detained for a brief period, but that the conditions would not be such as to rise to the level of a threat to his life or liberty, or to significant physical harassment or ill treatment or otherwise amount to serious harm.
The Authority found that the applicant would be issued a fine and released, or if he pleads not guilty will be released on his own personal surety. The Authority found that the application of the Immigration and Emigration Act 1988 would be as a result of a law of general application applied to illegal departures and does not amount to persecution for the purpose of s.5H(1) or s.5J(1) of the Act.
The Authority referred to having considered the applicant’s circumstances in their totality, and was not satisfied that the applicant a Tamil male from the Northern Province, who was not previously considered to be an LTTE member or supporter, even with his family links to suspected cadres, and who was monitored and questioned by the authorities and threatened once by unknown persons, would result in a real chance that the applicant will be harmed upon return, even though he would be returning to his home region having been charged under the Immigration and Emigration Act and as a failed asylum seeker who spent considerable time in Australia.
The Authority did not accept that the applicant’s claims individually or cumulatively give rise to a well-founded fear of persecution in the reasonably foreseeable future upon his return.

The Tribunal found that the applicant did not meet the requirements of refugee under s.5H(1) of the Act and did not meet the criteria under s. 36(2)(a) of the Act.

Consideration of complementary protection

The Authority was not satisfied that the applicant would be subject to acts or omissions which would constitute significant harm as defined in s.36(2A) and s.5 of the Act on the basis of any imputed LTTE support or links or any other reason.
The Authority was not satisfied the applicant would be subject to acts or omissions that would constitute significant harm as defined under s.36(2A) and s.5 of the Act during any post-return monitoring, or any brief period of detention and questioning. The Authority was not satisfied the applicant faced a real risk of significant harm during investigation and questioning, or while held in airport detention.
The Authority found the applicant would be issued a fine and released, or if he pleads not guilty, he will be released on his own personal surety. The Authority was not satisfied there is any reason the applicant will not receive bail. The Authority found the applicant will not receive a custodial sentence and took into account the conditions the applicant may face if he is held in a nearby prison while waiting to come before a magistrate.
The Authority found that there was no indication that authorities or others would, through any act or omission intentionally inflict pain or suffering such as to meet the definition of cruel or inhumane treatment, or punishment, nor would they intentionally cause extreme humiliation. The Authority found that it was not satisfied the applicant would be subject to acts or omissions that would constitute significant harm as defined in s.36(2A) and s.5 of the Act during his time in detention or prison whilst awaiting his Magistrate’s Court’s hearing.
The Authority referred to having considered the applicant’s circumstances cumulatively and his profile and found that the Authority did not accept that his profile was such that he would face a real risk of significant harm. The Authority did not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
The Authority found that the applicant failed to meet the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Before this Court

The grounds of the application are as follows:-
Ground 1
The Immigration Assessment Authority (IAA) fell into error by failing properly consider an integer of the applicant's claim, that being an integer specifically raised and or appeared from the material before it.
Particulars
1. At [9] the IAA found it plausible that the applicant's siblings were singled out due to their age and because LTTE cadres were among the mingling crowd at the time when some were surrendering and went onto state that “Given that they were never released, I accept this suspicion was never lifted".
2. The IAA accepted that the siblings were separated from their family and taken for interrogation at the Omanthai Checkpoint at the end of the war [9].
3. The IAA accepted at [11] that the applicant was interrogated (during the period the applicant and his family were detained) on suspicion of LTTE links and support though he was not harmed. At [12] the IAA accepted that the applicant personally lodged a complaint in August 2010, approximately 8 months after his release from the army camp [11] with the HRC (Human Rights Commission).
5. The IAA accepted that one month after lodging the complaint the applicant became subject to ongoing home visits by the CID every two or three months during which the applicant was interrogated for approximately an hour [12].
6. The IAA had before it country information in the UNHCR Eligibility Guidelines which was evidence that persons with family links to former LTTE combatants or cadres among its risk profiles.
7. The IAA did not adequately or at all consider the risk to the applicant by virtue of his siblings' suspected links to the LTTE.
Ground 2
The IAA fell into error by failing to give reasons or adequate reasons why there was no risk to the applicant. The IAA accepted that the applicant's siblings were suspected of LTTE affiliations and accepted that they were detained and are missing. The IAA accepted that the applicant was interrogated about his siblings. The IAA failed to give reasons why there was no real chance of a risk to the applicant as a family member of persons suspected of LTTE affiliations.
Particulars
As for ground 1.

Consideration

Ground 1

In relation to ground 1, Mr Hodges took the Court to the material provided by the applicant in support of his application for a protection visa and in particular the details relating to the brother and sister, who were identified by the applicant as missing. It was that brother and sister that the applicant identified in the statutory declaration whom he believed continued to be detained in some secret prison.
Mr Hodges also took the Court to the submissions provided to the Authority dated 30 July 2016 and in particular paragraph 6 of those submissions, in which it was argued that it was irrelevant that the siblings were not members of the LTTE or had real LTTE involvement.
Mr Hodges drew attention to the second sentence in paragraph 6 of the applicant’s submissions, identified in bold, saying that:
What appears to be relevant is that both siblings were arbitrarily detained separated from their family and taken supposedly for “questioning” by the authorities immediately after the war and both siblings remain missing to this date.

Mr Hodges took the Court to certain findings of the Authority, including the acceptance of the disappearance of the brother and sister, that the family had been detained for several months, that they had never been released, and the reference by the Authority to accepting the suspicion was never lifted. Mr Hodges went through the reasoning of the Authority and contended that the Authority had failed to properly address the applicant’s fears due to the continued missing status of his siblings.
Mr Hodges drew attention to the fact that whilst the Authority referred to there being no threats or harm having come to the applicant’s mother or other members of the family, the brother and sister remained missing. Mr Hodges submitted that the Authority did not adequately or at all, consider the risk to the applicant by virtue of the siblings’ suspected links to the LTTE. I reject these submissions. It is apparent that the Authority took into account the siblings’ suspected links to the LTTE in considering the applicant’s claims. The Authority expressly did so in its reasons as summarised above.
There was no failure by the Authority to consider the familial connection of the applicant to his siblings in relation to the applicant’s claims. Further, it is apparent that the Authority expressly referred to having considered the applicant’s circumstances in their totality and expressly referred to having considered the applicant’s claims individually and cumulatively. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

In relation to ground 2, Mr Hodges sought to take issue with the adverse findings made by the Authority in respect of the applicant not being a person at risk. The Authority identified the applicant’s mother as having made complaints to the Human Rights Commission and having the applicant’s mother and family continuing to reside in Sri Lanka in the absence of harm to those persons since the applicant’s departure of Sri Lanka.
The adverse reasoning of the Authority in relation to the applicant’s claims was open on the material and cannot be said to lack an evident and intelligible justification. There is no substance in the contention that the Authority failed to give reasons or adequate reasons as to why there is no risk to the applicant. The Authority explained the significance of the release of the applicant and that he suffered no harm in relation to the interrogations that then subsequently took place and the absence of harm to his mother and other family since his departure from Sri Lanka. On the face of the Authority’s reasons, the Authority correctly identified and applied the relevant law. Ground 2 is in substance an invitation to this Court to engage in an impermissible merits review. No jurisdictional error is made out by ground 2.

Conclusion

The application is dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 June 2017