CPV18 v Minister for Home Affairs

[2019] FCCA 735

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPV18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 735

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s claims of past harm accepted but his fears of future harm found to be not well-founded – whether the Authority misapplied the real chance test considered – no jurisdictional error.

Legislation:

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

Cases cited:

Chan v Minister for Immigration (1989) 169 CLR 379

Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: CPV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1408 of 2018

Judgment of: Judge Driver

Hearing date: 25 March 2019

Delivered at: Sydney

Delivered on: 8 May 2019

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application as amended by leave granted on 25 March 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1408 of 2018

CPV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 30 April 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The background to this matter is set out in the parties’ written submissions.

3. On 17 November 2012 the applicant arrived in Australian waters (at Christmas Island) by boat as an unauthorised maritime arrival.[1]

   [1] Court Book (CB) 46, 143

4. On 13 January 2013 the applicant participated in an entry interview.[2]  Some of the applicant’s claims are recorded in the entry interview record in the court book.[3]

   [2] CB 5-21

   [3] see CB 15 and 19

5. Between November 2012 and February 2013 the applicant was in immigration detention, following which he was granted a bridging visa and released on the Australian mainland.[4]

   [4] CB 64

6. On 2 February 2016,[5] following the lifting of a bar by the Minister, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).[6]  The application included a statutory declaration from the applicant dated 5 January 2016 which set out his claims.[7]

   [5] CB 94, 138

   [6] CB 27-93

   [7] CB 67-71

7. On 6 February 2018[8] the applicant attended an interview with the delegate.

   [8] CB 123

8. On 13 March 2018 the delegate made a decision refusing to grant the applicant a SHEV.[9]

   [9] CB 143-156

9. On 16 March 2018 the Authority sent the applicant a letter informing him of the referral of the matter to the Authority and providing information about it and the referral.[10]

   [10] CB 157-163

10. On 1 April 2018 the applicant’s agent made a submission to the Authority.[11]

    [11] CB 168-173

11. On 30 April 2018 the Authority made a decision affirming the delegate’s decision not to grant the applicant a SHEV.[12]

    [12] CB 243-259

12. The applicant, who is a citizen of Sri Lanka, claimed to fear harm if returned to Sri Lanka on the basis of his Tamil ethnicity and an imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE). The applicant claimed that in 1998 he and two friends were on their way to a Hindu temple when they were stopped by unknown persons, and then arrested and severely beaten by Special Task Force (STF) personnel. He claimed that he was later taken to a police station where he was detained for two days, before being transferred to the Criminal Investigation Division (CID) office and detained for 59 days, during which detention he was severely beaten and tortured. He claimed he was then held in prison for about seven months and was eventually released in 1999. He claimed that the same STF personnel took him into custody an additional four times and he was tortured every time and required to report to an STF camp.

13. The applicant claimed that on one occasion when he was in transit between camps a member of the Tamil paramilitary group Tamil Eelam Liberation Organization (TELO) told the STF that people like the applicant should be shot and killed because they caused trouble and placed bombs. The applicant claimed that after he left Sri Lanka for Malaysia in 2000 his family was visited by the STF personnel and his father was assaulted. The applicant had not returned to Sri Lanka since 2000, but came to Australia via Indonesia in 2012. At the SHEV interview the applicant denied he had ever been approached by the LTTE to join them, but that his cousin “R” was a member of the LTTE.

Authority’s decision

1. The Authority acknowledged it received submissions from the applicant dated 1 April 2018.[13] The Authority gave reasons for not considering, pursuant to s.473DD of the Migration Act 1958 (Cth) (Migration Act), two news articles concerning recent events in Sri Lanka;[14] a claim that returnees are processed en masse at the airport upon return and that consequently if the applicant was so returned, and one member of the group were found to be a person of interest, then the others could be imputed with political opinion they did not hold;[15] an article about Sri Lanka’s national security law;[16] and a letter from the NSW Service for the Rehabilitation of Torture and Trauma Survivors (STARTTS).[17]  The Authority recorded that the applicant requested the Authority to obtain from the Minister’s Department documents used by the Minister’s Department to determine the applicant’s eligibility for Primary Application and Information Service (PAIS)[18] and a decision of the Administrative Appeals Tribunal concerning a different applicant.[19] The Authority did not accede to the applicant’s requests.

   [13] CB 244 at [3]

   [14] CB 244 at [5]

   [15] CB 244-245 at [6]

   [16] CB 245 at [7]

   [17] CB 246 at [11]

   [18] CB 245 at [8]

   [19] CB 245 at [9]

2. The Authority accepted the applicant was arrested in 1998, spent time in detention and prison and was released in 1999 when the charges against him were cleared.[20]  It referred to country information that indicated that many Tamils, particularly in the north and the east, report being monitored, harassed, arrested and/or detained by security forces during the conflict.[21]  The Authority accordingly accepted the applicant had been subject to further arrests after he was released initially from prison and was required to report when he was arrested on the third occasion. The Authority did not accept the applicant’s evidence at the SHEV interview that he was required to report on the other occasions, preferring the detailed account given in his written claims. It referred to the fact that the applicant was able to obtain a passport to depart Colombo, and was able to pass all the checkpoints on the way to Colombo, strongly suggesting he was not of interest to the STF or the authorities at the time he left Sri Lanka.

   [20] CB 248 at [22]

   [21] CB 249 at [25]

3. The Authority accepted the applicant’s claim that someone from the TELO group had made a comment when he was being transferred between camps, but it found this to be an isolated incident.[22]  The Authority did not accept that since the applicant had left Sri Lanka his family was visited by authorities, due to inconsistencies in how the claim was presented between the applicant’s written and oral claims at the SHEV interview.[23]

   [22] CB 249 at [26]

   [23] CB 249 at [27]

4. The Authority concluded relevantly that the applicant had been severely ill-treated by the STF and the CID in the past, but that since he had left Sri Lanka there had been significant changes to the country situation in Sri Lanka, including the defeat of the LTTE, and the end of the civil conflict.[24] The Authority referred at [36]-[37][25] to Department of Foreign Affairs and Trade (DFAT) county information concerning the monitoring and harassment of Tamils in day-to-day life under the Sirisena Government. Further, the Authority referred to information that the LTTE no longer existed in Sri Lanka as an organised force.[26]  It noted that DFAT assessed that only high profile individuals with links to the LTTE, and close relatives of high profile former LTTE members, continue to be of interest to the Sri Lankan authorities and might be subjected to monitoring. The Authority concluded in respect of the applicant that none of his close family members were involved with the LTTE, apart from a cousin with whom they lost contact since 1990.[27] The applicant had not claimed that he or any member of his family ever faced any problem due to the cousin’s involvement with the LTTE.

   [24] CB 251 at [33]-[35]

   [25] CB 251-252

   [26] CB 253 at [42]

   [27] CB 253 at [43]

5. The Authority concluded that whilst it accepted the applicant had been subjected to mistreatment in the past, and had once been suspected of having LTTE links, it was not satisfied that he had a profile that would attract adverse attention on return.[28]  The Authority referred to the applicant’s ability to depart Sri Lanka lawfully in 2000 and noted there was no independent information to suggest that Tamil returnees who had merely sought asylum abroad after having lived abroad for a period of time and who did not otherwise have a profile of interest for political reasons are subject to monitoring, arbitrary arrest or detention for that reason.[29]  DFAT assessed the risk of torture or mistreatment for the majority of returnees was low and continues to reduce, including for those suspected of offences under the Sri Lankan immigration law.

   [28] CB 253 at [44]

   [29] CB 253 at [45]

6. The Authority concluded that having regard to the applicant’s profile, the passage of time and the change of country situation, it was not satisfied the applicant faced a real chance of harm as a returning Tamil asylum seeker from Batticaloa, with distant family LTTE links, who had himself formerly been suspected of LTTE involvement and been imprisoned.[30]

   [30] CB 254 at [48]

7. The Authority was not satisfied that the applicant met the requirements of the definition of refugee in s.5H(1) of the Migration Act.[31] Neither was it satisfied that he was entitled to complementary protection pursuant to s.36(2)(aa) of the Migration Act.[32]

   [31] CB 255 at [50]

   [32] CB 255 at [54]

The current proceedings

1. These proceedings began with a show cause application filed on 21 May 2018.  The matter came before me for a show cause hearing on 25 March 2019.  At that time, the applicant was represented by counsel who sought leave to rely upon an amended application in the event that the applicant succeeded in establishing an arguable case.  The amended application raises one ground presenting a finely honed attacked on one paragraph of the Authority’s decision:

   1. The Immigration Assessment Authority (“the IAA”) referred at [37] to country information “that monitoring and harassment of Tamils in day to day life has decreased significantly under the Siresena Government”.  The mere fact that such conduct towards Tamils has “decreased significantly” does not mean there is no real chance of Tamils being the subject of such conduct.  The IAA, in the course of finding at [48] that it was “not satisfied that the applicant faces a real chance of harm” for various reasons:

   a)failed to consider whether the level and degree of monitoring and harassment experienced by Tamils was sufficient to constitute a real chance of serious harm; or

   b)erred in assuming that a significantly decreased occurrence of monitoring and harassment meant that the applicant did not face a real chance of serious harm as a result of the monitoring and harassment.

2. In response to a question from me, counsel for the applicant confirmed that he would have nothing further to say at a final hearing than what was put before the Court at a show cause hearing.  In the circumstances, I dispensed with the need for a show cause hearing and the matter proceeded as a final hearing. 

3. I granted leave for the applicant to file and rely upon the amended application.

4. The only evidence I have before me is the court book filed on 8 August 2018 and the only relevant document in it is the Authority’s decision.

Consideration

1. The applicant contends that while the Authority’s reasoning otherwise demonstrates a careful and correct analysis of the applicant’s claims, its reasons at [37] disclose error in relation to the application of the real chance test.  The applicant then proceeds to explore that proposition by reference to the applicant’s claims and the Authority decision on them.

2. The applicant claimed to fear harm from the Sri Lankan authorities because, among other reasons, he was a Tamil.

3. As the Authority recognised,[33] the manner in which the applicant could face serious harm from the Sri Lankan authorities was not limited to detention and torture, but included monitoring, harassment and discrimination.

   [33] eg at [37] and [38]

4. As the Authority observed at [34], since 2005 “there have been significant changes to the country situation in Sri Lanka, including the defeat of the LTTE/the end of civil conflict in 2009 …”.  It should be uncontroversial that during the civil conflict which ended in 2009 there was significant monitoring and harassment of Tamils by the authorities.

5. In relation to monitoring and harassment at the time of the Authority’s decision in 2018, it stated at [37]:

   DFAT assesses that monitoring and harassment of Tamils in day to day life has decreased significantly under the Sirisena Government … While some cases of monitoring continue to be reported, … the overall prevalence of monitoring has greatly reduced.

6. The applicant contends that the mere fact that the monitoring and harassment of Tamils has “decreased significantly” does not mean there is not a real chance that Tamils, including the applicant, face a real chance of monitoring and harassment.

7. The threshold for what constitutes a “well-founded fear” is low.  For example, in Chan v Minister for Immigration[34] Mason CJ stated at 389:

   I agree with the conclusion reached by McHugh J that a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality … I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen, per Mason, Wilson and Deane JJ.

   [34] (1989) 169 CLR 379

8. McHugh J stated at 429:

   … a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur … an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterized as “well-founded” for the purpose of the Convention and Protocol.

9. Similarly, in Minister for Immigration v Guo[35] six members of the High Court (including Dawson J) stated the following in relation to the meaning of “well-founded fear”:

   Chan is an important decision of this court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error ... Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term ... A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [35] (1997) 191 CLR 559 at 572

10. The Authority concluded at [48]:

    Having regard to the applicant’s profile, the passage of time and the change of country situation, I am not satisfied the applicant faces a real chance of harm as a returning Tamil asylum seeker from Batticoloa, with distant family LTTE links, who was himself formerly suspected of involvement and imprisoned.

11. The applicant’s concern and complaint is that, in the Authority’s reasons between recording the country information on monitoring and harassment at [37] and its conclusion at [48], there is no finding that there is no real chance that the applicant will face monitoring or harassment on return to Sri Lanka.  Instead, the Authority appears to assume that, because the monitoring and harassment of Tamils has “decreased significantly”, therefore there is not a real chance that Tamils, including the applicant, face a real chance of monitoring and harassment. Such an assumption is said to be wrong and to involve jurisdictional error. Thus the Authority’s error is said to be one of the following:

    a)the Authority failed to consider whether the level and degree of monitoring and harassment experienced by Tamils was sufficient to constitute a real chance of serious harm; or

    b)the Authority erred in assuming that a significantly decreased occurrence of monitoring and harassment meant that the applicant did not face a real chance of serious harm as a result of the monitoring and harassment.

12. A possible reason for the asserted Authority’s errors is that, in its reasons between [37] and [48], it focused on whether there was a real chance that the applicant would “be suspected of having links to the LTTE”[36] or would be “perceived to be a member or supporter of the LTTE”[37] or “will be perceived to be pro LTTE or anti-government”.[38]  However, there was no evidence before the Authority that monitoring and harassment of Tamils by the authorities was limited to such Tamils.  The applicant submits that the Authority made such an assumption, and that the assumption was unwarranted and not supported by the country information before it.

    [36] at [39]

    [37] at [44]

    [38] at [47]

13. In my view, the applicant’s challenge suffers from the mischief of disconnecting the impugned finding at [37] from the Authority’s reasons as a whole and, in particular, the broad conclusion at [48] which is based on the Authority’s entire consideration of the applicant’s claims, not simply its assessment of the risk of monitoring and harassment. 

14. In that regard, I agree with the Minister’s submissions on the ground of review raised.

15. The applicant asserts that the mere fact that monitoring and harassment of Tamils has decreased significantly does not mean that there is not a real chance that Tamils face a real chance of monitoring and harassment. Whilst as a matter of definition, the applicant is correct, the submission that the Authority misapplied the real chance test over-simplifies the reasoning of the Authority in this case. The Authority’s reasons should be read as a whole, and not selectively, and not with an eye attuned to the perception of error.[39]

    [39] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

16. Despite its reference to DFAT information at [37], the Authority’s reasoning culminating in its conclusion at [48], is prefaced on its reasoning from [33]-[47], which is summarised above at [17]-[19].  In short, the Authority had regard not only to country information that supported an improved country situation for Tamils on a day-to-day basis, but it referred to information that indicated that only certain LTTE adherents faced any particular ongoing risk of monitoring. The Authority recognised that the situation in Sri Lanka had changed since the applicant left. Further, the Authority made findings as to the applicant’s past, his suspected links to the LTTE during the civil conflict, the circumstances of his departure from Sri Lanka in 2000, and his present profile, to conclude that the applicant did not have a well-founded fear of persecution or that there was a real risk he would face significant harm.

1. To the extent the applicant’s submission is that the Authority needed to discount entirely any possibility of the applicant being subjected to some form of discrimination or mistreatment before it could conclude that it was not satisfied that he had a well-founded fear, the submission is misguided, and incorrect.[40]

   [40] Chan at 389; Guo at 571-574

Conclusion

1. The applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 8 May 2019