CRG17 v Minister for Immigration

[2020] FCCA 531

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRG17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 531

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority constructively failed to exercise its jurisdiction in respect of pt 7AA of the Migration Act 1958 (Cth) – whether the Authority considered all material before it when making findings in relation to complementary protection – whether the Authority failed to make an express finding as to whether or not the applicant would be subject to significant harm by reason of the extortion demands – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: CRG17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1890 of 2017

Judgment of: Judge Street

Hearing date: 11 March 2020

Date of Last Submission: 11 March 2020

Delivered at: Sydney

Delivered on: 11 March 2020

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Solicitors for the Applicant: Wotton & Kearney Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Leave is granted to the applicant to rely upon the amended application dated 11 March 2020 and the Court directs that an electronic copy be filed and served on or before 13 March 2020.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

DATE OF ORDER: 11 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1890 of 2017

CRG17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 pt 7AA of the Act made on 18 March 2017 affirming a decision of a delegate of the first respondent (“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. 

3. The applicant was found to be a Tamil of the Catholic religion born in a particular village in the Northern Province.

4. On 7 October 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 26 October 2016, the Authority wrote to the applicant explaining that his application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a factsheet and Practice Direction, providing the applicant an opportunity to put on new information and submissions. The applicant did put on new information which the authority considered, consistently with taking into account the whole of s 473DD of the Act. 

6. In summary, the applicant claimed to fear harm by reason of his Tamil ethnicity and the imputed Liberation Tigers of Tamil Eelam (“LTTE”) support and/or from the Sri Lankan Army (“SLA”), the Sri Lankan Navy (“SLN”) and the Eelam People’s Democratic Party (“EPDP”), including extortion. 

7. The applicant identified a particular incident in 2006 when he was transporting goods by boat to his father’s shop. The boat was checked by the SLN and they took some of the goods. The applicant asked them to stop and they threatened to throw him into the sea. 

8. The applicant also identified learning after he returned home that his brother had gone missing in December 2008, which was a point of time when the war was still continuing. The applicant claimed that his father was asked to give money, he believed to the EPDP, that his father refused and that after his father refused, his brother was kidnapped on his way home from school and that his brother has not been seen since nor has any body been found. The applicant noted that this was during the war and that his family were not in a position to make a complaint, and on the island there were only SLA and paramilitary groups and the family could not travel to the mainland to make a complaint.

9. The applicant also identified an incident in which he claimed that the paramilitary group, Karuna Group, told him that his brother had gone missing and the same will happen to him if he does not join them but that he always refused and that he gave them money.

10. The applicant also identified having spoken with his father by phone over the past two years and was told that the EPDP and other groups still come to the family business demanding goods, and on one occasion asked where the applicant was. 

11. The applicant feared that he could be “disappeared” like his brother.

12. The applicant alleged that he had already been subject to being beaten and extorted by members of the SLA, SLN and EPDP and so had his father. The applicant claimed that this would continue to happen if he returned to Sri Lanka.

13. The applicant also feared harm because of his Facebook activity. 

14. The Authority identified the background to the Safe Haven Enterprise visa application and had regard to the material provided by the secretary under s 473CB of the Act. 

15. The Authority summarised the applicant’s claims. 

16. The Authority accepted that, during the war in Sri Lanka, which was fought from 1983 to May 2009, the applicant and his father were subject to extortion demands by the SLA and the LTTE. 

17. The Authority also accepted that in late 2005 the applicant’s father and others were taken into detention by the SLA together with others and that the father and others were released the following day.

18. The Authority accepted that in 2006 the applicant was the subject of an incident in which goods were taken and he was threatened with being thrown into the sea. The Authority accepted that this occurred primarily because the applicant is a Tamil and was suspected of transporting goods for the LTTE and was targeted for extortion by the Sri Lankan authorities. 

19. The Authority accepted that the applicant spent two years in Qatar and returned to Sri Lanka in mid-2009 and that he was questioned on his return at the airport and that he was beaten and that money and other items were taken from him by the authorities at the airport. 

20. The Authority also accepted that the applicant’s brother went missing during the war. This was clearly a reference to the war that the Authority had identified and had been from 1983 to May 2009. The brother’s disappearance was alleged to have occurred in December 2008, according to the applicant’s statement. The Authority expressly referred to the brother going missing after the applicant’s father refused to give money to the EPDP. 

21. The Authority also accepted that the applicant was pressured to join paramilitary groups and was forced to pay them money to avoid having to join them.

22. The Authority accepted that the applicant was afraid for his safety in his home village and that his father arranged for him to travel to Malaysia. The Authority also accepted that the applicant was questioned by the Criminal Investigation Department (“CID”) when he departed Sri Lanka in 2010. 

23. The Authority found that the applicant overstayed his visa in Malaysia and was jailed for 12 months.

24. The Authority accepted that the applicant had suffered harm in the past in Sri Lanka and that this had occurred primarily because he is a Tamil from the northern region that was dominated by the LTTE during the war and that, as such, the applicant was imputed to be a supporter of the LTTE.   

25. The Authority expressly referred to the applicant’s fears of harm from the Sri Lankan military and paramilitary groups, including the Karuna Group and the EPDP, to the applicant’s fears that he would be subjected to beating, bribery and extortion demands from the Sri Lankan military and paramilitary groups because he will be involved in running the family business in the applicant’s home village on the island, and to the applicant’s fears that he could be “disappeared”, as happened to his brother, which the Authority noted occurred during the war. 

26. The Authority found that there was no evidence to indicate that the applicant faced a real chance of harm in relation to his religion. 

27. The Authority referred to the applicant’s Facebook page and was satisfied that there was nothing on the applicant’s Facebook page or timeline that would give rise to a real chance of him facing harm now or in the foreseeable future in Sri Lanka. 

28. The Authority did not accept that the applicants’ father deliberately transported goods for the LTTE or regularly assisted the LTTE and found the applicant’s claim that his father did so to be opportunistic and unconvincing. The Authority was satisfied that if the applicant’s father was actively and intentionally supporting the LTTE, this was not known to the Sri Lankan authorities, and found that the chance of it becoming known to the authorities is very remote. 

29. The Authority noted that the applicant has not claimed to have been arrested, charged, monitored or required to report to the Sri Lankan authorities at any time in Sri Lanka. The Authority found that, on the occasions when the applicant was questioned, he had always been released without charge and without ongoing reporting requirements.

30. The Authority also noted that the applicant was issued with a valid Sri Lankan passport and departed Sri Lanka through the international airport in 2006 and again in 2010 without difficulty. 

31. The Authority referred to the applicant’s claim at the Safe Haven Enterprise visa interview and found the applicant’s evidence concerning the idea of a Tamil state to be very vague and unconvincing. The Authority was satisfied that the applicant’s political conviction in this regard would not bring him to the attention of Sri Lankan authorities now or in the reasonably foreseeable future. 

32. The Authority was satisfied that the applicant does not face a real chance of being detained, imprisoned or sent to a rehabilitation camp in Sri Lanka. The Authority found that the chance of the applicant being poisoned or injected with a substance to make him ill, impotent or dead was very remote. 

33. The Authority was satisfied that the applicant is not considered by the Sri Lankan authorities to have transported goods for the LTTE and neither is his father considered to have transported goods for the LTTE.  The Authority was not satisfied that the applicant’s profile, political opinion and circumstances are such that he faces a real chance of serious harm, including kidnapping or poisoning, now and in the reasonably foreseeable future in Sri Lanka because he is a Tamil from a particular region and would be imputed to be a supporter of the LTTE. 

34. The Authority then turned to the issue of whether the applicant faces a real chance of harm from paramilitaries through extortion and bribery or forced recruitment. 

35. The Authority accepted that the applicant was subjected to extortion on several occasions in the past by members of the Sri Lankan military, paramilitary groups and also the Sri Lankan authorities at the airport.  The Authority referred to accepting the incident in 2006. The Authority referred to the applicant’s claim concerning attempts to possibly recruit him and giving them money and found that there was nothing in the country information to support this claim, but the Authority was nonetheless prepared to accept that claim. The Authority accepted that the applicant’s experience of extortion, bribery and attempted recruitment by paramilitary groups would have been frightening experiences. The Authority, however, found that the applicant had not suffered serious harm on these occasions. 

36. The Authority referred to assessing the chance of the applicant facing harm now or in the reasonably foreseeable future through extortion, bribery and recruitment demands. The authority expressly referred to the father still running the business and referred to the applicant’s claims that paramilitary groups still demand to be given goods without payment. The Authority found that there was no evidence to indicate that the applicant’s father had been otherwise harmed during these incidents. The Authority found that the applicant’s father had not been physically harmed since 2005 and did not consider that the applicant’s father had suffered serious harm through extortion and bribery demands. 

37. It was in that context that the Authority indicated that it also considered country information indicating that extortion, bribery and kidnap for ransom has significantly reduced in recent years in Sri Lanka. The Authority referred to kidnapping for ransom, extortion and bribery and that country information indicates that the Sri Lankan government is taking action against perpetrators. The Authority accepted that the applicant would be returning from overseas to work in the family business in the village on the island and that the applicant may be subject to extortion demands. The Authority, however, found on the evidence before it that there was not a real chance that this would involve serious harm.

38. The Authority found that the chance of the applicant being seriously harmed through extortion and bribery demands is remote. The Authority also found that the applicant does not face a real chance of being forcibly recruited by paramilitary groups now or in the reasonably foreseeable future in Sri Lanka. 

39. The Authority referred to the applicant being a failed asylum seeker and accepted that the applicant would be questioned on return at the airport.  The Authority was satisfied that the applicant would not be detained for a lengthy period of time or subjected to serious harm or significant harm on arriving back in Sri Lanka as a person returning as a failed asylum seeker. The Authority confirmed that the applicant would undergo the routine process upon return as identified earlier in its reasons.

40. The Authority found that the procedures under which the applicant as a returnee would be dealt with do not constitute persecution for the purpose of the Act. 

41. The Authority referred to having considered the applicant’s claims individually and cumulatively and found that his claims will not lead to the applicant facing a real chance of serious harm in Sri Lanka. 

42. The Authority found that the applicant did not meet the requirements of the definition of ‘refugee’ in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

43. The Authority referred to complementary protection and expressly referred to the adverse findings that the Authority had made. The Authority in that regard made express reference to having considered the applicant’s claimed fears relevantly because one of his brothers disappeared during the war, because he has been subjected to extortion demands in the past and because his father has been subjected to extortion through the family business. The Authority referred to having found that the applicant does not face a real chance of serious harm in Sri Lanka in relation to these claims when considered individually and cumulatively. 

44. In that context, the authority identified that the ‘real risk’ test and the ‘real chance’ test being, in substance, the same. The Authority expressly referred to having considered all the evidence as to whether the applicant faces a real risk of the defined categories of significant harm. The Authority referred to having found that the procedures the applicant would go through on return to Sri Lanka, as outlined above, would not involve significant harm to the applicant. The Authority found the applicant does not face a real risk of significant harm now or in the reasonably foreseeable future in Sri Lanka. 

45. The Authority found that there were 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 that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act. 

46. Accordingly, the Authority affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   2. The Tribunal constructively failed to exercise its jurisdiction as it failed to make findings in respect of:

   a) whether there was any convention basis underlying the extortion it found that the applicant might be subjected to on return to Sri Lanka; and

   b) what was likely to happen if the applicant failed to comply with the extortion demands.

   3. The Tribunal failed to make a finding on a claims which arose clearly from the materials and the delegate's decision.

   Particulars

   It made no finding on

   (1) whether the applicant's mental ill health was a basis for complementary protection under s 36(2)(aa) of the Migration Act 1958;

   4. The Authority failed to make a finding on whether the extortion demands that it accepted the applicant may be subjected to on return to Sri Lanka would amount to significant harm.

Ground 2

1. In relation to ground 2, Mr Godwin of counsel took the court to the applicant’s irregular maritime arrival entry interview and the activities of the army, navy and EPDP camps working together and coming to the shop and taking things out but never paying. 

2. The Court was taken to the applicant’s statement in support of the Safe Haven Enterprise visa application, including the reference to fearing harm from Sinhalese people and groups associated with the government in Sri Lanka, including the military and Karuna Group and EPDP, and the incident in 2006, as well as his brother having gone missing after his father refused to give money. The applicant alleged that his father had received phone calls from the EPDP asking for money but that his father did not have that money, he did not pay and that his brother has not been seen again. 

3. The statement also referred to the incident involving the Karuna Group and the applicant being scared for his safety because his brother has been taken and had disappeared. 

4. The statement also referred to the father telling the applicant that the EPDP and other groups still come to his father’s shop demanding goods and that on one occasion asked where the applicant was.

5. The applicant claimed that he would face problems of bribery and extortion that his father now faces in the shop because he is a Tamil. The applicant also claimed that he could be disappeared, like what happened to his brother. 

6. In relation to ground 2, Mr Godwin submitted that there was, in substance, an integer of the applicant’s claim to fear harm, being what happened to his brother happening to him, which involved the failure to pay in relation to extortion, and that, as such, there was an integer of the applicant’s claim in respect of what happens if there is a failure to pay that the Authority has failed to address and thereby constructively failed to properly exercise its jurisdiction under pt 7AA of the Act.

7. Mr Godwin took the Court to the Authority’s reasons dealing with the applicant’s claim of fears in relation to extortion and contended that there had been no finding in relation to what would occur if there was a failure to pay the extortion and that, accordingly, there is an integer of the applicant’s claims that had not been the subject of a dispositive finding by the Authority.

8. The Authority’s reasons make express reference to what occurred in relation to the disappearance of the brother and the father’s failure to pay. The Authority clearly identified that that incident occurred during the war. In circumstances where that incident occurred during the war, as squarely identified by the Authority, there is no need for the Authority, in the circumstances of the present case, to expressly address what happens if the extortion demands are not met. That possibility was clearly subsumed within the adverse findings made by the Authority in respect of the foreseeable future and the applicant being exposed to extortion in relation to the family business on the island. The authority clearly took into account what was a logical and rationale finding in respect of the father not otherwise having been harmed in running his family business since 2005.

1. That finding that the applicant’s father had not suffered serious harm through extortion and bribery demands clearly subsumed failure to pay as had been identified in respect of the brother’s disappearance. There was no reason for the Authority in the circumstances of the present case where the war had concluded to make any express finding in respect of what happens if there is a failure to pay in the future. 

2. The Court accepts the first respondent’s submission that that the integer that the applicant’s claim was subsumed in the adverse finding of the chance of the applicant being harmed through extortion is remote. There was no failure to deal with an integer of the applicant’s claim. 

3. No jurisdictional error as alleged in ground 2 is made out.

Ground 3(1)

1. In relation to ground 3, Mr Godwin relied upon a Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) report dated 1 September 2016 that was provided to the Delegate by a psychologist referring to the applicant having attended counselling sessions on a regular basis, and that the applicant still needs more support and counselling to learn new strategies to manage his current symptoms which the psychologist identified as being severe anxiety, depressed mood, poor sleep and self-esteem and hopelessness and helplessness and a fear of being deported, nightmares and flashbacks and memory issues and lack of confidence. Reference was also made to the applicant’s recent sinus surgery. The opinion descended into positing that a favourable decision in the applicant’s application for a visa would reduce his symptoms and lead to a healthy life. 

2. The Court accepts the first respondent’s submission that on no view was this a claim by the applicant to fear harm on the grounds of mental illness that required express findings by the Authority in the context of complementary protection. No such claim fairly arose in the material before the Authority.

3. Mr Godwin identified that the Delegate had addressed whether the applicant could obtain counselling in Sri Lanka upon his return in relation to the conditions identified in the STARTTS report. That is not a basis upon which to find that the applicant had, on the material before the Authority, raised such a claim, nor does the Court regard that material as fairly giving rise to any such claim that the applicant feared harm by reason of his need for counselling or serious harm by reason of his need for counselling upon return to Sri Lanka. A claim that does not fairly arise on the material before the Authority cannot give rise to any jurisdictional error.

4. The Court notes that it is apparent that the Authority was well alive to and took into account that STARTTS report by reason of what is referred to in the second sentence of para 7 where more recent new information was rejected because it largely reflects the contents of the STARTTS report already included in the referred material. 

5. The Authority’s reasons in relation to complementary protection squarely referred to having assessed all the evidence. There is no basis to find that the Authority did not take into account the STARTTS report to which it expressly referred as being in material referred in para 7 in its reference in para 62 to assessing all the evidence. 

6. No jurisdictional error as claimed in ground 3(1) is made out. 

Ground 4

1. In relation to ground 4, Mr Godwin submitted that the findings in paras 62 to 64 of the Authority’s reasons concerning extortion were deficient with a want of an express finding as to whether or not the applicant would be subject to significant harm by reason of the extortion demands that will be made upon his return to his home village in Sri Lanka.

2. It was open to and permissible for the Authority to take into account its adverse findings that it has made in relation to the Refugee Convention in its deliberations in respect of complementary protection. The Authority made clear in para 60 that it had taken into account in that regard the applicant’s claim to fear harm because of the disappearance of his brother during the war, given the Authority’s express reference to that incident including the father’s refusal to pay referred to in para 21 of the Authority’s reasons and the express reference to the applicant having been subject to extortion demands in the past, and the reference to the father being subject to extortion through the family business and that in all these circumstances, it does not give rise to the applicant facing a real chance of serious harm in Sri Lanka in relation to these claims when considered individually or cumulatively.

3. There was no need for the Authority to make an express finding referrable to the applicant’s claimed fear of harm from extortion in conducting the family business on return to Sri Lanka. The Authority in that regard expressly referred to the absence of serious harm being suffered by the father through extortion and bribery demands other than the incident in 2005 during the war, and the Authority expressly accepted that the applicant would be returning from overseas to work in the family business in his village and that he may be subject to extortion demands, and found that there was not a real chance that this would involve serious harm.

4. The Authority’s reasons are not to be read with a keen eye for error. The adverse finding that was made in relation to the Refugee Convention clearly took into account the whole of the reasons of the Authority in relation to the applicant being exposed to extortion in running the family business in the future. There is no basis to find that the Authority was required to make further express findings in respect of whether the applicant will be subject to significant harm by reason of extortion demands. That is because they had squarely been included in the findings in para 62 and in paragraph 63, dispositive of the applicant’s claim to fear harm, on the basis of complementary protection.

5. No jurisdictional error as alleged in ground 4 is made out.

6. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding seventy (70) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 11 March 2020 and the parties were provided sealed copies of the Court’s orders.

Associate: 

Date: 30 April 2020