CRE18 v Minister for Home Affairs

[2020] FCCA 414

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRE18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 414

Catchwords:
MIGRATION – Judicial review – decision of Immigration Assessment Authority– where failure to particularise any alleged jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Immigrants and Emigrants Act 1949 (Sri Lanka)

Applicant: CRE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 200 of 2018

Judgment of: Judge Young

Hearing date: 13 February 2020

Date of Last Submission: 13 February 2020

Delivered at: Darwin

Delivered on: 13 February 2020

REPRESENTATION

The Applicant: In person (by video-link)

Counsel for the First Respondent: Ms Milutinovic (by video-link)

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent costs in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 200 of 2018

CRE18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 19 April 2018.  The grounds of the application are set out in the application filed on 23 May 2018. The grounds of application allege the assessment was

   “… unfair because of:

   (a) Taking into account irrelevant considerations;

   (b) Not taking into account relevant considerations;

   (c) Not taking into account the relevant country information;

   (d) The Authority had not asked a reasonable number of questions in order to ascertain the applicant’s credibility and made an unfair decision; and

   (e) Not finding the applicant met the provisions of complementary protection.” 

3. These grounds are a template and whether they were drafted by a lawyer appears doubtful.  They lack any particularity, meaning no error or potential error is identified in the grounds, which is a reason in itself for dismissing the application.  It is unclear what “reasonable number of questions” ground (d) is referring to.  My guess is that it is in a template taken from somewhere else and has no relevance to this application. 

4. The applicant’s claims were that he is a Tamil Hindu born in Central Province, Sri Lanka, but grew up in Vavuniya in Northern Province.  He claimed to work as a labourer during the civil war in a rice mill owned by the Liberation Tigers of Tamil Eelam (“LTTE”). 

5. The applicant said that after the war, which ended in 2009, he worked as an auto-rickshaw driver.  In April 2011 he was arrested by the Sri Lankan Criminal Investigation Department (“CID”) because of his employment at the rice mill, and he was imprisoned for a period.  He was stripped, beaten and questioned about suspected LTTE links.  In 2012 the CID came to his house but he fled and went into hiding, leaving for Australia shortly afterwards in October 2012.  He claimed that the CID continued to search for him in 2012, questioning his son who also left Sri Lanka for Australia, and who has since returned to Sri Lanka and been prosecuted by the authorities.  He fears he will be detained, tortured or killed on his return to Sri Lanka. He claimed that Tamils are still persecuted as all Tamils are believed by the Sri Lankan authorities to be supporters of the LTTE. 

6. The Authority accepted a number of things. It accepted that the applicant was a Tamil Hindu, born in Sri Lanka in 1963, meaning he is about 56 or 57 years old.  The Authority was concerned by a number of inconsistencies in the applicant’s claims about having worked for the LTTE and did not accept the applicant’s claims that his memory was vague due to having undergone torture in Sri Lanka.  The Authority observed that there was no medical evidence to corroborate the claim of torture and there had been no such claim of torture made at the applicant’s entry interview. 

7. The Authority observed that when these inconsistencies were pointed out to the applicant by the delegate at the Safe Haven Enterprise Visa (“SHEV”) interview, there was no claim made at that point of torture or mental ill health effecting the applicant’s recall, and the Authority was not satisfied that the effects of torture or mental ill health were the reason for what it described as the “very wide divergence in some of the evidence”. 

8. The Authority noted that the applicant in his entry interview claimed to have been employed by the LTTE in a rice mill between 2011 and 2012 in Vavuniya. That is to be compared with the claim in the SHEV interview that he worked in the LTTE rice mill between 2003 and 2008 in Kilinochchi. The Authority pointed out that the LTTE had been militarily defeated by the Sri Lankan army in 2009 and did not accept that the applicant would be working for the LTTE in 2011 or 2012.  The Authority accepted that the applicant may have worked for a few years from 2003 in such a rice mill to no later than 2008 when the cease fire in Sri Lanka between 2003 and 2008 was in effect.  The Authority pointed out that the applicant has not made any claim to be a member or supporter of the LTTE and his only claims of involvement have been as a labourer in the rice mill which the Authority described as a:

   “low level involvement during a period of cease fire between the LTTE and the Sri Lankan army”. 

9. The Authority also considered the applicant’s claims of interrogation and torture and considered that those claims were inconsistent and pointed out that in the applicant’s entry interview he had claimed or asserted that he had never been arrested.  In his statement of claim for the SHEV interview he said he had been detained for one week.  In the SHEV interview he said he had been detained for two months in 2011.  The Authority was prepared to accept that the applicant may have been questioned and detained for a period around about the end of the war in 2009, on the basis of country information that said there had been widespread questioning and “screening” of thousands of Tamils immediately after the end of the war. The Authority was prepared to accept that around about that time he may have been detained as part of that process for between one week and two months. 

10. The Authority did not accept that the applicant had been detained in 2011, well after the end of the war.  The applicant said that when he had been detained he had been beaten and suffered bruising, but even on the applicant’s claims he had been released by the Sri Lankan authorities without charge or further interest. The Authority inferred from that that the applicant was of no security concern to the Sri Lankan authorities.  The Authority accepted that the applicant had departed Sri Lanka illegally in October 2012.  The Authority, however, did not accept that the applicant fled a CID search at that time, or was being sought by the CID at that time, and did not accept that the applicant had been subjected to anything other than general checks and harassment that appeared to have been undertaken by the Sri Lankan authorities against the Tamil population around about that time. 

11. The Authority did not accept that the Sri Lankan authorities had questioned or threatened the applicant’s son after his departure.  The Authority found that the Sri Lankan authorities had no adverse political interest in the applicant and that he had not been mistreated, other than in the way I have mentioned. In relation to the information that the applicant’s son has been prosecuted since being returned to Sri Lanka, the Authority was satisfied that that prosecution did not relate to the applicant’s profile.  In other words, did not relate to the applicant having a political profile or being of interest to the Sri Lankan authorities.  The Authority observed that the son appeared to have been prosecuted on his return to Sri Lankan for an illegal departure under the Immigrants and Emigrants Act (Sri Lanka). In the Authority’s general discussion of the circumstances for returning asylum seekers or those who departed illegally, it mentioned that the son apparently had been released by the authorities but was still required to report once a month, pending the resolution of the prosecution. 

12. The Authority observed that for the applicant, if he was subjected to the same process as other applicants of no particular interest to the authorities, that is, not having an adverse profile with LTTE links, the most common outcome was a fine.  The Authority generally considered the situation in Sri Lanka, particularly since 2015, and the election of the Sirisena government after that. In a detailed discussion of the situation in Sri Lanka for Tamils and others since 2015, it concluded that conditions for Tamils had improved dramatically.  In relation to the applicant’s claim that he was on a “stop list” at airports, that is, his name would be a on a list and he would be detained on entering the country, the Authority acknowledged that there was evidence of such a list at airports but the Sri Lankan authorities were only interested in former LTTE cadres and those who had committed offences.  The Authority was not satisfied that the applicant fell into either of those categories and it was not satisfied that he was likely to be on any “stop list”. 

13. The Authority, as I say, discussed in some detail the country information in Sri Lanka, and was not satisfied that the applicant was at serious risk of harm on either refugee grounds or on complementary protection grounds should he return to Sri Lanka, because of any imputed political connections or beliefs, or because of his membership of the Tamil ethnic group. The Authority at the beginning of its decision had also considered the applicant’s submissions which sought to rely on some new general country information. The Authority was not prepared to consider that because it considered it was simply country information of a kind previously considered. A medical report from a Dr Pitt had been proffered but the Authority was not prepared to consider that because it did not consider it relevant. There was nothing in the report about the applicant suffering memory loss, whether because of torture or any other reason.

14. It also refused to consider a British Medical Journal report on the incidence of post-traumatic stress disorder because there was no evidence that the applicant had such a condition. I have read the decision. If any error is apparent to me, I am obliged as a judicial officer to recognise that error and provide any remedy that may flow from such an error. Having read the Authority’s report, I see no jurisdictional error or, indeed, any other error in the decision, and accordingly the application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  26 February 2020