CQS16 v Minister for Immigration - [2017] FCCA 749

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQS16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 749

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka on various bases – applicant’s claims of past harm during the civil war accepted but fears of future harm found not to be well-founded – whether the Authority asked itself the right question or misconstrued the applicant’s particular social group considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5J, 46A, 477

Cases cited:

SZGUW v Minister for Immigration [2008] FCA 91

SZQPA v Minister for Immigration [2012] FCA 1025

Applicant:

CQS16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2529 of 2016

Judgment of:

Judge Driver

Hearing date:

18 April 2017

Delivered at:

Sydney

Delivered on:

18 April 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Hooper of HWL Ebsworth Lawyers

ORDERS

Order 1 made on 30 September 2016 is amended as follows:
Pursuant to section 477(2) of the Migration Act 1958 (Cth), the time for filing an application be extended up to and including 19 September 2016.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,250.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2529 of 2016

CQS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 1 August 2016. The Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Sri Lanka and had sought protection on several bases. Background facts relating to the applicant’s claims and the decision of the Authority on them are set out in the Minister’s outline of legal submissions filed on 11 April 2017.
The applicant is a male citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival in September 2012.[1] By letter dated 8 September 2015, the applicant was notified of a decision by the Minister to exercise the power under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow the applicant to lodge a valid application for, relevantly, a Safe Haven Enterprise Visa (SHEV).[2]
[1] Court Book (CB) 127
[2] CB
The applicant lodged an application for a SHEV on 19 November 2015.[3] The applicant claimed to fear harm on the basis of his Tamil ethnicity, and claimed that he had been detained, questioned, and mistreated on past occasions by the Sri Lankan Army and authorities. The applicant claimed that, when detained, he was questioned with respect to his injured eye and accused of working with the Liberation Tigers of Tamil Eelam (LTTE). The applicant advanced further claims, including a claim to fear harm based on his illegal departure from Sri Lanka.
[3] CB 9
A delegate of the Minister (delegate) refused the applicant's application.[4] The delegate found the applicant's claim with respect to a 2012 interaction with the authorities was embellished.[5] The delegate accepted that, in 2007, the applicant was questioned by the authorities, slapped, and brought before a magistrate who found there was insufficient evidence for the applicant to be charged by the authorities.[6] The delegate also accepted that the applicant was questioned at the time of “round ups”, in 2003 and 2004,[7] that his uncle was killed by unknown persons in 2007,[8] and that the applicant was approached and threatened by Sri Lankan Army officers in 2007.[9] The delegate did not accept that the Sri Lankan Army had questioned the applicant's family, or pursued the applicant, since his departure from Sri Lanka.[10] Nor did the delegate accept that the applicant was detained in 2006.[11]
[4] CB 127
[5] at [36]
[6] CB 134 at [40]
[7] at [41]
[8] at [42]
[9] at [43]
[10] at [44]
[11] CB 135 at [45]
The delegate did not accept that the applicant had a well-founded fear of persecution. In so finding, the delegate had regard to country information including with respect to the treatment and monitoring of Tamils,[12] persons returned to Sri Lanka as failed asylum seekers,[13] and other matters. Having considered the country information and the applicant's personal circumstances, including the matters that the delegate had accepted, the delegate found none of the applicant's claims gave rise to a real chance of persecution for a reason mentioned in s.5J(1)(a) of the Migration Act.[14] The delegate considered the complementary protection criterion, and found that there was no real risk of significant harm to the applicant on return to Sri Lanka.[15]
[12] CB 140 from [70]
[13] CB 146 from [108]
[14] CB 149 at [133]
[15] CB 153 at [158]
The application was referred for review, by the Authority.[16] By letter dated 1 July 2016, the applicant's representative provided the Authority with documentary material.[17]
[16] CB 155
[17] CB 331 and see the Authority’s decision at CB 356 [4]
The Authority affirmed the decision under review, refusing to grant the applicant a SHEV.[18] The Authority accepted several of the applicant's claims concerning past occasions on which he was detained, but found that he did not face a real chance of future serious harm. The Authority's findings in this respect are set out in further detail below with respect to Ground 1 of the application to this Court.
[18] CB 355
With respect to the applicant's illegal departure claim, the Authority found that the applicant would be fined, and that this did not constitute serious harm.[19] The Authority found that the applicant's detention on remand did not amount to serious harm[20] and further that it would be pursuant to a law of general application, not discriminatorily applied.[21] The Authority considered the complementary protection criterion. In relation to the applicant's illegal departure, the Authority did not accept that any brief detention, questioning, fine or other penalty would amount to significant harm as defined under the Migration Act.[22]
[19] at [47]
[20] at [49]
[21] at [50]-[52]
[22] at [58]-[60]

The present proceedings

These proceedings began with a show cause application received in the registry on 16 September 2016 and formally filed on 19 September 2016. The applicant continues to rely upon that application. On 30 September 2016, by consent, I extended time for the filing of that application pursuant to s.477(2) of the Migration Act. The application was supported by a short affidavit filed with it. Having extended time for the filing of the application, the affidavit was no longer relevant.
I have before me as evidence the Court book filed on 5 December 2016.
Only the Minister prepared written submissions in accordance with my procedural orders made on 30 September 2016.
I invited oral submissions from the applicant this morning, having explained to him the grounds of review in his application and the nature of today’s hearing. The applicant is adamant that if he returns to Sri Lanka, he will face detention, interrogation and potentially, torture. He believes that his eye injury will bring him to the attention of the authorities, as it has in the past. His submissions bore on his claims for protection.
Those submissions did not advance legal arguments in relation to the grounds of review in the application. There are two grounds in the application which are particularised:
1. The [Reviewer] erred in asking himself the wrong question.
Particulars
(a) At [22] the Reviewer accepted that the applicant was detained on a number of occasions before 2009 and accepted the applicant’s eye injury;
(b) At [24] the Reviewer found that on each of the occasions that he was detained by the SLA, CID or authorities that he was not associated with the LTTE and he was released and no further action was taken;
(c) The Reviewer failed to assess whether through this process the applicant faced serious or significant harm as he only considered the outcome and not the process; and
(d) The Reviewer also failed to consider that the applicant’s eye injury will continue to bring him to the attention of the authorities, regardless of his lack of LTTE profile, particularly when he returns as an illegal deportee and failed asylum seeker.
2. The Reviewer misconstrued the applicant’s particular social group.
Particulars
(a) The Reviewer considered the particular social groups based on his Tamil ethnicity, Tamil male from the East or any other reason related to these facts;
(b) The applicant’s particular social group is far more detailed and narrow that the general groups considered, viz. Tamil failed asylum seeker male from the East of Sri Lanka with a visible facial injury who departed Sri Lanka illegally.
The application was prepared by solicitors who at the time were acting for the applicant, but those solicitors withdrew from the record on 20 October 2016. Regrettably for the applicant, he was not in a position to augment the grounds with legal argument. Bearing that in mind, I have considered for myself whether any jurisdictional error in the decision of the Authority is apparent.
I can see none. The grounds of review, while arguable, are not ultimately sustainable. The Minister’s submissions deal with those grounds. I agree with those submissions.
The Authority’s findings of fact were relevantly as follows.
a)the Authority accepted that the applicant had seriously injured his eye in an accident in 1993 and that he wore a prosthetic eye/lens;[23]
b)the Authority accepted the applicant's claims in relation to an incident in August 2006 during which he was taken to a police station, interrogated, and held for approximately two hours before being released. The Authority also accepted and gave weight to the fact that the applicant was released shortly after being detained and no further action was taken;[24]
c)the Authority accepted the applicant's claims in relation to an incident in December 2006, when the applicant was rounded up by the Sri Lankan Authorities, who were focussed on his eye injury. The Authority accepted that the applicant was detained for three days and was slapped during his detention. He was later presented at court, and subsequently released without charges. The Authority stated that it accepted the applicant “was detained and mistreated by Sri Lankan authorities in 2006, however I also accept and give weight to the fact that he was released by the Court and no further harm or charges came to him as a result of this incident,”;[25]
d)the Authority accepted the applicant's claim that in 2003 and 2004, he was rounded up and questioned by the Sri Lankan Army and Navy in the presence of masked informants. The applicant claimed that on each occasion, he was suspected of being an LTTE member in part because of his eye injury. On each occasion, he was forced to provide evidence that he was not so involved. The applicant further claimed that in 2008 or 2009 he was again arrested in Trincomalee. The police took a statement and then he was released.[26] The Authority found[27] that it had little reason to doubt each of these claims. However it found and gave weight to the fact that the applicant was released shortly after being detained on each of these occasions and no further action was taken against him;
e)the Authority observed[28] that the applicant claimed he did not face further issues in Trincomalee until April 2012. The Authority did not accept the applicant's claim that, in April 2012, he was detained, interrogated and mistreated by the authorities for three days. The Authority found[29] that there were discrepancies in the applicant's evidence with respect to this particular claim and did not accept it;[30]
f)the Authority summarised[31] that it accepted that the applicant was detained on a number of occasions prior to the cessation of hostilities in 2009, and that he has been questioned, accused of LTTE involvement and mistreated during those periods of detention. The Authority accepted that the applicant's eye injury may have been an exacerbating factor in his interactions with the Sri Lankan Army, the Criminal Investigation Department (CID) and other authorities and this may have resulted in him being questioned and scrutinised more closely.
g)Further,[32] the Authority stated that, except for the 2012 incident, it accepted that the past incidents had occurred. It accepted that the applicant had been questioned and mistreated as a Tamil and accused of being a member of the LTTE. It accepted his eye injury may have acted as a catalyst for further inquiry. However, the Authority also found that on each of the occasions that the applicant was detained and questioned, it was determined by the Sri Lanka Army, CID or authorities that he was not associated with the LTTE and he was released and no further action was taken.
[23] at [9]
[24] at [14]
[25] at [15]
[26] at [16]
[27] at [17]
[28] at [18]
[29] at [19]
[30] at [20]-[21]
[31] at [22]
[32] at [24]
With respect to its forward-looking assessment as to whether the applicant faced a real chance of future serious harm, the Authority did not accept[33] that the applicant would be forced to undertake rehabilitation on his return to Sri Lanka. It also did not accept[34] that the applicant's wife had been visited by CID officers since the applicant had been in Australia.
[33] at [25]
[34] at [26]
The Authority accepted that there is country information about the rehabilitation of those associated with the LTTE in the aftermath of the conflict.[35] It accepted that the Department of Foreign Affairs and Trade assesses that high-profile former members of the LTTE are likely to be arrested, detained, and prosecuted through Sri Lankan courts, followed by a period of detention in a rehabilitation centre. The Authority was not satisfied that the applicant had any profile or association, actual or imputed, with the LTTE that posed any risk of him being harmed or punished in this way.
[35] at [27]
The Authority considered whether the applicant would continue to be at any higher risk of being imputed with an LTTE profile because of his eye injury.[36] The Authority was satisfied, on the applicant's evidence, that he had no actual or imputed profile in relation to the LTTE, and found that the authorities did not have any interest in him on this basis.[37] The Authority accepted that the applicant's eye injury may have led him to face greater scrutiny from the Sri Lankan Army and authorities in the past, but found that there was no current country information that indicated that he would be at any future risk on this basis. The Authority was not satisfied that the applicant would be singled out or face a higher risk of being imputed with an LTTE profile, even when accounting for his eye injury. The Authority concluded[38] that there was no real chance of the applicant being harmed on the basis of any imputed political opinion, or connection to the LTTE.
[36] from [29]
[37] at [30]
[38] at [31]
The Authority also considered[39] whether the applicant was at risk on the basis of his Tamil ethnicity, including as a Tamil male from the East. The Authority was satisfied that the applicant had no additional profile as a Tamil, even when accounting for the eye injury. The Authority found there was nothing to indicate that the applicant had any LTTE connection, criminal record or other profile that would cause him to face an elevated risk of harm. Further, country information did not indicate the applicant would face a real chance of harm on the basis of his ethnicity, or as Tamil male from the East of Sri Lanka.[40] The Authority concluded that there was not a real chance of the applicant being targeted and facing a real chance of serious harm on the basis of his ethnicity as a Tamil, or as a Tamil male from the East of Sri Lanka, or any other reason related to these factors.[41]
[39] from [32]
[40] at [34]
[41] at [35]
The Authority did not expressly make a finding as to whether the past incidents, which it accepted, involved serious harm, whether viewed individually or cumulatively. However there was no jurisdictional obligation on it to do so, particularly where the Authority made sufficient factual findings with respect to the past incidents, and engaged in the requisite forward-looking assessment by reference to the correct law.
Further, there was no necessity for the Authority to engage in consideration of whether the “process” of detention and questioning, as opposed to the “outcome”, amounted to serious harm (cf the applicant's particular (c) to Ground 1). Such consideration would only have been relevant if the Authority had accepted there was a real chance the applicant would in future be exposed to a process of questioning/detention by the authorities. The only respect in which the Authority made such a finding was in relation to the applicant's illegal departure claim, which is not the subject of this ground (and which is also in my view not affected by any jurisdictional error).
As I explained to the applicant, Ground 1 appears to have been framed by reference to the decision of SZQPA v Minister for Immigration.[42] This case is readily distinguishable from that case having regard, not least, to the passage of time since the case was decided, different circumstances within Sri Lanka and the markedly stronger connection of that applicant to the Tamil Tigers.
[42] [2012] FCA 1025
The matter raised by particular (d) to Ground 1 is more conveniently dealt with in relation to Ground 2, as it concerns whether the Authority cumulatively considered aspects of the applicant's claims.

Ground 2: did the Authority misconstrue the applicant's particular social group?

The particulars to Ground 2 are as follows:
(a) The Reviewer considered the particular social groups based on his Tamil ethnicity, Tamil male from the East or any other reason related to these facts;
(b) The applicant’s particular social group is far more detailed and narrow that the general groups considered, viz. Tamil failed asylum seeker male from the East of Sri Lanka with a visible facial injury who departed Sri Lanka illegally.
Particular (d) to Ground 1 alleges that the Authority did not consider the applicant's eye injury in the context of his illegal departure and failed asylum seeker claims.
The particulars to Ground 2 do not identify a “particular social group” which was squarely articulated on the material before the Authority, as opposed to a combination of discrete integers of the applicant's claims. I accept the Minister’s submissions that Ground 2 is properly construed as raising for consideration whether the Authority engaged in an assessment of whether there was a real chance or a real risk of serious or significant harm to the applicant, based on a cumulative consideration of the various factual matters it had accepted.[43]
[43] see, generally, SZGUW v Minister for Immigration [2008] FCA 91, per Jacobson J at [53] and [54]
In my view, the Authority did consider the applicant's claims cumulatively. In particular, the Authority concluded:[44]
In view of the all information before me, whether considered singularly or cumulatively, I find that the applicant will not face a real chance of serious harm on return to Sri Lanka on the basis of his ethnicity, any imputed political opinion to the LTTE, his membership of any particular social group, as a failed asylum seeker or as someone who left Sri Lanka illegally. The applicant therefore does not meet the requirements of cl.5J(1)(b).
[44] at [53]

There are also further and discrete aspects of its reasoning where the Authority considered particular claims on a cumulative basis. For example, the Authority considered[45] whether the applicant would be at higher risk of being imputed with an LTTE profile because of his eye injury (cf particular (d) to Ground1). Similarly, the Authority considered the applicant's position on the basis of his Tamil ethnicity, including as a Tamil male from the East.[46] The Authority also considered the applicant's eye injury in connection with this aspect of his claims.[47]
[45] at [29]-[30]
[46] at [32] and following
[47] at [34]; see, similarly for example, [43] and [51]
I conclude that the Authority did not fall into error in the manner alleged in the application; neither is any other reviewable legal error by the Authority apparent to me from my perusal of the court book. It follows that the applicant is unable to demonstrate that the decision of the authority is affected by any jurisdictional error and accordingly, I will order that the application be dismissed.
In consequence of the dismissal for the application, the Minister seeks an order for costs, fixed in the sum of $5,250. The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,250.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 18 April 2017