CPP18 v Minister for Home Affairs

[2018] FCCA 3067

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPP18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3067

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misconceived or failed to engage with the applicant’s claims – whether the Authority had a real and genuine engagement with the applicant’s claims and submissions – whether the Authority erred in its application of s 473DD of the Act – whether the Authority failed to take into account relevant country information – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: CPP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1406 of 2018

Judgment of: Judge Street

Hearing date: 29 October 2018

Date of Last Submission: 29 October 2018

Delivered at: Sydney

Delivered on: 29 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Direct basis  

Solicitors for the Respondents: Mr J Lambe
HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,250.00.

DATE OF ORDER: 29 October 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1406 of 2018

CPP18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. 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 2 May 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 16 August 2012. The applicant was found to be a Tamil of the Hindu faith from the Eastern Province.

3. The applicant claimed to fear harm, in summary, by reason of his ethnicity and origin, as well as by reason of having a brother-in-law who he alleged was an LTTE member and that he would be imputed as having a political opinion, as well as being a young Tamil male and being a returned failed asylum seeker.

4. The applicant applied for a safe haven enterprise visa on 3 March 2017. On 5 July 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 11 July 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and, relevantly, under an email dated 31 July 2017, provided what was described as a submission and new information for consideration.

6. That new information for consideration relevantly included a letter dated 24 July 2017 from the applicant’s brother-in-law, a letter dated 22 July 2017 from an alleged Member of Parliament of Sri Lanka and a letter from the Human Rights Commission of Sri Lanka (“HRCSL”) dated 23 July 2017. The relevant letters were described in the covering email as new information. The supporting submission dated 31 July 2017 also described, relevantly, each of the three documents as being new information.

7. The Authority in its reasons identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority expressly referred to the submissions and, to the extent that they engaged in discussion of the evidence and the delegate’s decision, had regard to the same. The Authority correctly identified, relevantly, the three letters referred to as being new information. The Authority engaged with the content of each of the respective letters and, on the face of the Authority’s reasons, had regard to both limbs of s 473DD of the Act in concluding that there are not exceptional circumstances to justify consideration of the same.

8. The Authority then summarised the applicant’s claims and, relevantly, expressly referred to the applicant’s claim that he was shot at in 2001 and that his leg was permanently deformed and that he cannot walk properly and that the injury will raise further suspicions about him in the minds of the Criminal Investigation Department (“CID”) and the Sri Lankan Army (“SLA”).

9. The Authority also expressly referred to the applicant’s brother-in-law allegedly being a Liberation Tigers of Tamil Eelam (“LTTE”) member, having been in prison and only recently being released, and that the authorities would discover his connection to his brother-in-law and be satisfied that he had links to the LTTE. The Authority expressly referred to the United Nations High Commissioner for Refugees (“UNHCR”) guidelines and the reference to ‘persons with family links or who are dependent on or otherwise closely related to the persons with the above profiles’ and the assertion that the applicant’s brother-in-law was an LTTE combatant and that the applicant had a close association with a family member. The Authority referred to the applicant’s contention that he falls within the UNHCR risk profile and may give rise to a need for international protection.

10. The Authority summarised the applicant’s claims and evidence and found the applicant was generally consistent since his entry interview in November 2012 in claiming that he was forced to work with the LTTE with his boat and that in 2001 he was shot while assisting the LTTE. The Authority however found that the applicant’s details of his actual LTTE involvement or connections have varied over time. The Authority referred to matters that were not mentioned before the 2017 statement or in the Safe Haven Enterprise visa interview and found the same not to be credible. The Authority referred to it not being credible in relation to the applicant’s assertions that no other action was taken against him except questioning him and making threats.

11. The Authority noted that the applicant first mentioned his brother-in-law in his 2017 statement. The Authority referred to the applicant’s failure to disclose in his 2013 statement that his brother-in-law was in the LTTE, that his transport work for the LTTE also involved such work with his brother-in-law and that his brother-in-law was in custody of the Sri Lankan authorities from 2009. The Authority found these were significant and substantial omissions that reflected poorly on the applicant’s credit. The Authority also referred to the applicant inconsistently asserting that he helped his brother-in-law and his team by using his boat and motor bike to transport goods, ammunition and personnel in his 2017 statement, but that in his Safe Haven Enterprise visa interview he said his brother-in-law visited his area once with some associates and he transported one of the associates on a borrowed motor bike.

12. The Authority also referred to the applicant claiming for the first time in the Safe Haven Enterprise visa interview in relation to the May 2001 incident, where he was shot after dropping off an LTTE member, that the LTTE member he transported was one of his brother-in-law’s associates. The Authority did not consider it credible that the applicant failed to mention this aspect of his claim in either his 2013 or 2017 statements when detailing 2001 incident. The Authority did not consider it credible that the applicant’s brother-in-law was in the LTTE and held by, the Sri Lankan authorities from 2009 to 2016, and that the applicant’s wife was never questioned by authorities about her brother. The Authority did not consider the timing of the brother-in-law’s release from rehabilitation/prison, during that six months before he prepared his 2017 statement, to be coincidental.

13. The Authority referred to the fact the applicant claims the authorities visited his home once after his departure from Sri Lanka in 2009 because of his failure to report to an SLA camp. The Authority did not consider it credible that the authorities became aware after 2009 of the applicant’s previous activities with LTTE, either through collaborators or his brother-in-law, that they would not have made further inquiries about his whereabouts or questioned his wife, mother and siblings after 2009.

14. Given these changes, inconsistencies and credibility issues, the Authority was satisfied that the applicant has embellished and fabricated parts of his evidence about his LTTE connections in order to boost his claims for protection. The Authority accepted that the applicant suffered a gunshot wound on 16 May 2001 that left him with a limp after transporting an LTTE member on a borrowed motor bike. The Authority rejected that the applicant transported LTTE men and material, including bombs and ammunition, quite frequently; that his brother-in-law was in the LTTE; that the Karuna Group was aware of his transportation work and that they questioned and threatened him; that any of his transportation work involved his brother-in-law; that his brother-in-law was taken by Sri Lankan authorities at the end of the war and that he was in rehabilitation/prison from 2009 to 2016 and interrogated about the applicant’s LTTE activities; and that the authorities became aware of the applicant’s previous activities with the LTTE from or after 2009.

15. The Authority rejected the applicant’s claims that he was detained and questioned at the airport on his return from Saudi Arabia; that he reported or was required to report to the Special Task Force (“STF”), SLA or CID camps during that period; that he was slapped or punched by an SLA officer; that the CID or other authorities were actively looking for the applicant during that period; that he was in hiding prior to his departure to Malaysia; and that his wife was followed and people were monitoring their house.

16. The Authority noted that the applicant made no claim in his 2013 statement that the Sri Lankan authorities made any enquiries about his whereabouts after he left Sri Lanka in February 2009. The Authority did not consider it plausible that the SLA and CID would wait four or so years to suddenly pursue the applicant’s failure to report to the SLA camp. The Authority rejected this as a further embellishment by the applicant to boost his protection claims.

17. The Authority identified the relevant law. The Authority further expressly referred in its reasons to the UNHCR 2012 Eligibility Guidelines for Sri Lanka in respect of a person’s real or perceived links with the LTTE giving rise to a need for international refugee protection.

18. The Authority accepted that the applicant was forced to assist the LTTE by using his boat for transporting LTTE personnel and that this first occurred in 1995 and then happened several times over the years until the applicant left Sri Lanka in 2005 for Saudi Arabia, including that on four occasions he transported LTTE members who went to plant bombs in towns and on one occasion he transported ammunition. The Authority accepted the applicant suffered a gunshot wound to his right buttock/leg on 16 May 2001 after transporting a LTTE member on a borrowed motor bike and that he walks with a limp as a result of his gunshot wound.

19. The Authority found the applicant would not face a real chance of harm, now or the reasonably foreseeable future. The Authority provided detailed reasons in support of those adverse findings including the adverse findings made in respect of the applicant’s assertions as to none of his family members being LTTE members and that the applicant was not an LTTE member.

20. The Authority also took into account that the applicant was forced to assist the LTTE and it found the authorities were not aware of the work he performed for the LTTE and was satisfied the chance of that information coming to light as it is now 13 years or so since the applicant performed such work, is remote. The Authority also took into account that although the applicant was occasionally questioned by police and STF, and his home visit by the CID, he was never arrested, charged, taken to Court, imprisoned or sent to rehabilitation, either under the Prevention of Terrorism Act 1979 (Sri Lanka) or any other reason while he was in Sri Lanka.

21. The Authority noted that, although the applicant alleges he knows particular individuals, the applicant does not claim that the authorities questioned him and his family about the connection with those individuals. The Authority also found that the Sri Lankan authorities, including the Karuna Group, have not made any inquiry about the applicant or shown any interest in him or his family since he departed Sri Lanka in 2009. The Authority referred to the United Kingdom Home Office 2017 Report notes and that a person’s past LTTE membership or involvement, no longer generally gives rise to a need for protection. The Authority expressly referred to the applicant’s gunshot wound and limp and country information suggesting that scarring limps were, anecdotally, a matter of interest to the Sri Lankan authorities during the war and its aftermath when considering suspected LTTE involvement but that that is no longer the case.

22. The Authority found the applicant does not have a profile that country information suggests he is at risk of harm now or in the reasonably foreseeable future for any real or perceived LTTE links, or for any imputed political views, and/or as a young Tamil male from the east.

23. The Authority was satisfied that the applicant would not face a real chance of harm on the basis of any links to the LTTE, for any imputed political opinion and/or as a young Tamil male from the east, if returned to Sri Lanka, now in the reasonably foreseeable future.

24. The Authority was satisfied in relation to the applicant being a failed returnee asylum seeker that the applicant’s profile is such that he will not be of interest to the Sri Lankan authorities if returned to Sri Lanka. The Authority was not satisfied that the applicant will face a real risk of adverse attention or that he faces a real chance of harm from the Sri Lankan authorities when scrutinised on return to Sri Lanka.

25. The Authority found that there is no evidence to suggest that the applicant has had any involvement, whether significant or otherwise, in any activities that might be considered as, or perceived to be, pro-Tamil separatist or pro-LTTE diaspora activities since he left Sri Lanka in 2009. The Authority was not satisfied the applicant’s profile is one that places him at a risk of harm. The Authority was not satisfied that, given the applicant’s profile, there is a real chance that the applicant will be monitored because of his absence from Sri Lanka, if returned.

26. The Authority was not satisfied the applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker, now or in the reasonably foreseeable future. The Authority was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act.

27. The Authority found the applicant does not meet the definition of refugee under s 5H(1) of the Act and found the applicant does not meet the criteria under s 36(2)(a) of the Act.

28. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant does not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the application are as follows:

   Ground 1

   The Authority's consideration of the Applicant's role is misconceived (IAA at [50] - [52]) is misconceived and irrational, illogical and unreasonable; it failed to intellectually engage with the Applicant's claims. The Authority has thereby has thereby committed jurisdictional error.

   Particulars

   (a) The Authority is irrational / illogical in the Applicant's role with LTTE, his activities and major role for LTTE's secretive operations.

   (b) The Applicant key player for the secretive LTTE activities.

   (c) The Authority committed jurisdictional error.

   Ground 2

   The Authority erred in the engagement with the various information / letters (IAA at [10] - [13]) and committed jurisdictional error. The Authority failed to properly identify, assess and address whether it engaging with the letter regarding exceptional circumstances actually considering the letter. The Authority has thereby has thereby committed jurisdictional error.

   Particulars

   (a) The Authority has failed to properly engage with the issue of exceptional circumstances.

   (b) The Authority has not properly engaged with the issue of exceptional circumstances and / or misconstrued "exceptional circumstances".

   (c) The Authority has committed jurisdictional error.

   Ground 3

   The Authority erred in the engagement with the scar / wound issue (IAA at [50] - [53]) and committed jurisdictional error. The Authority failed to properly identify the Applicant's wound was bullet wounds. It erred in its assessment. The Authority has thereby committed jurisdictional error.

   Particulars

   (a) The Authority has failed to properly engage with the types of scar (gunshot wound scars) the Applicant had.

   (b) The Authority has committed jurisdictional error.

   Ground 4

   The Authority erred in the assessment of imputed political opinion and committed jurisdictional error. The Authority failed to properly identify, assess this. The Authority has thereby has thereby committed jurisdictional error.

   Particulars

   (a) The Authority has failed to properly engage with the issue of gunshot wounds/ scars as it related to the Applicant.

   (b) The Authority has committed jurisdictional error.

   Ground 5

   The Authority failed to take into consideration UNHCR guidelines (IAA at [52]) and properly identify, assess and address whether the Applicant would be at risk with family members with LTTE connections. The Authority has thereby has thereby committed jurisdictional error.

   Particulars

   (a) The Authority interpreted the LTTE family link narrowly in the circumstances where the Applicant's brother-in-law was high ranking LTTE officer;

   (b) The Authority has conflated the issue of the Applicant's knowledge about combatant activities and has failed to take into account relevant consideration (UNHCR guidelines).

   (c) The Authority committed jurisdictional error.

1. Mr Kumar of counsel, on behalf of the applicant, confirmed that ground 6 was no longer pressed and was abandoned. Mr Kumar also confirmed that it was only three letters that were the subject of ground 2 and that the fourth letter from the wife was not included in ground 2.

Ground 1

1. In relation to ground 1, Mr Kumar advanced a submission that the Authority’s reasoning in paragraphs 50 to 52 were irrational or legally unreasonable, or otherwise failed to have a genuine engagement with the applicant’s claims and evidence. Mr Kumar’s submissions in that regard sought to advance the applicant’s claims in relation to his LTTE involvement. The Authority’s reasons in paragraphs 50 to 52 reflect an acceptance of part of the applicant’s evidence and a rejection on grounds of credibility of other parts of the applicant’s claims in respect of LTTE involvement and whether the applicant faced a real chance of harm now or in the reasonably foreseeable future because of perceived LTTE links.

2. In that regard the Authority had, earlier in its reasons, made express credibility findings rejecting the applicant’s claims in relation to the involvement and events concerning his brother-in-law. The Authority referred to finding the changes in the applicant’s evidence, inconsistencies in credibility issues and identified the applicant had embellished and fabricated parts of his evidence about LTTE connections.

1. The Authority’s adverse finding in relation to the applicant’s claimed fear of harm, in paragraph 51, took into account those findings and that the Authority had found that none of the applicant’s family members or the applicant were LTTE members. The Authority also referred, as summarised above, to the applicant never having been arrested, charged or taken to Court, or imprisoned or sent to rehabilitation. The Authority also took into account that there had not been inquiries about the applicant or any interest in him or his family since he departed Sri Lanka in February 2009.

2. Those were logical and rational matters for the Authority to take into account. The Authority’s adverse finding in relation to the applicant’s claim to face a real chance of harm now or in the reasonably foreseeable future cannot be said to lack an evident and intelligible justification. No legal unreasonableness is made out as alleged by ground 1. Further, the Authority’s reasons as summarised above reflect a real and genuine engagement with the applicant’s claims and evidence. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Kumar submitted that the three letters earlier referred to engaged with the applicant’s claims and were consistent with and supportive of the applicant’s fears. Mr Kumar submitted that, in those circumstances, the respective letters were submissions that should have been taken into account and should not have been characterised as new information. The respective letters, as earlier referred to, were expressly described in the covering email as new information as well as in the submissions as new information. The Authority was correct to identify the letters as new information. The letters did not engage with the delegate’s reasons and put submissions in respect of the delegate’s findings. The Authority was correct to consider whether or not the letters met the requirements of s 473DD of the Act in circumstances where the letters were clearly new information. No jurisdictional error as alleged in ground 2 is made out.

Grounds 3 and 4

1. In relation to grounds 3 and 4, Mr Kumar submitted that the Authority had failed to properly engage with the significance of the gunshot wound and scar to the applicant in respect of the applicant’s claims and that the Authority had failed to take into account the circumstances in which the applicant had been shot and submitted that the Authority had, accordingly, failed to have a real and genuine engagement with the applicant’s claims.

2. Grounds 3 and 4 are, in substance, a challenge to the merits of the matter, in respect of which it is apparent from the above summary of the Authority’s reasons, that the Authority took into account the claimed circumstances in respect of the incident in which the applicant was shot and took into account that the applicant was shot with scarring in the adverse findings made by the Authority. There was no failure by the Authority to have a genuine engagement with the applicant’s claims and evidence in respect of the scar and the circumstances in which he was shot. No jurisdictional error as alleged in ground 3 and ground 4 is made out.

Ground 5

1. In relation to ground 5, Mr Kumar submitted that the Authority had failed to take into account the UNHCR Guidelines and, in particular, the brother-in-law’s LTTE connection. Contrary to the submissions advanced, the Authority clearly considered the brother-in-law’s connection and made adverse findings in respect of the applicant’s claims in that regard. Further, the Authority clearly took into account the UNHCR Guidelines in light of the adverse findings by the Authority in respect of the brother-in-law, which were open for the reason given by the Authority on the material before the Authority and cannot be said to lack an evident and intelligible justification. There is no failure to take into account the UNHCR Guidelines as alleged in ground 5. No jurisdictional error as alleged in ground 5 is made out.

Conclusion

1. As the application fails to make out any jurisdictional error, accordingly the application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 November 2018