CUP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3119

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3119

File number(s):	SYG 1995 of 2017
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	19 November 2020
Catchwords:	MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise visa – whether Authority assessed risk of future harm on the basis of an assumption unsupported by evidence or reasons – no jurisdictional error.
Legislation:	Migration Act 1958 (Cth), ss.36(2)(aa), 476
Number of paragraphs:	17
Date of hearing:	6 May 2020
Place:	Sydney
Solicitor for the Applicant:	Mr S Hodges of Hodges Legal, by telephone
Solicitor for the First Respondent:	Ms A Wong of Mills Oakley Lawyers, by telephone

ORDERS

SYG 1995 of 2017

BETWEEN:

CUP17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	19 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $5,000.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, a citizen of Sri Lanka, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming the decision on the first respondent (Minister) not to grant the applicant a Class XE Subclass 790 Safe Haven Enterprise visa (SHEV). The applicant relies on one ground; and that is the Authority gave inadequate reasons for concluding it was not satisfied that scarring it accepted appeared on the applicant’s upper body would likely attract the adverse attention of authorities in Sri Lanka.

   CLAIMS FOR PROTECTION

2. The applicant stated his claims for protection on a number of occasions. It will be convenient to begin with the claims the applicant made in a statutory declaration (Statement) that formed part of his application for a SHEV. The applicant there states as follows:[1]

   [1] CB58-64

   (a)The applicant is a citizen of Sri Lanka, a Tamil, and a Hindu.

   (b)The applicant was born in 1981 in a village in the Jaffna district. The particular area was controlled by the Liberation Tigers of Tamil Eelam (LTTE) until it was captured by the Sri Lankan Army (SLA).

   (c)From 2006 to 2008 the applicant worked as a lorry driver for a Tamil businessman, Mr U, who owned six lorries. The applicant transported construction material between X and Y. The applicant collected cement bags from a company and sheets from a shop in X, and delivered the bags to another lorry driver at a certain point. The applicant did not know to whom Mr U or the other lorry driver handed the bags of cement and sheets.

   (d)The applicant usually did two trips on average transporting the material between X and Y. He did not transport any items on his return trip.

   (e)The applicant did not have specific times set for transporting the material; the company operated 24 hours every day. The applicant did not have a permanent address, and he would sleep in his lorry on the days that he was transporting material between X and Y.

   (f)At around 1:00 am on a day in 2007, while sleeping in the front seat of his lorry, SLA soldiers approached the applicant, opened the driver’s door, and asked if the applicant was a Tamil and a member of the LTTE. When the applicant said he was a Tamil a soldier who was aiming for the applicant’s neck slashed the applicant’s left arm, shoulder, arm area, and right hand. The applicant was slashed with the knife as he was trying to step out of the lorry. The applicant has several scars that are present to this day.

   (g)The applicant screamed when he was struck, and he fell to the ground. He remained in the darkness. The applicant believes the soldier who attacked him thought he had died. Three other lorry drivers parked nearby were attacked with a knife the same day and died.

   (h)From 2008 to 2010 the applicant resided at Mr U’s house in a particular district. During this time the applicant worked in a tyre shop owned by Mr U and was targeted by the Criminal Investigation Division (CID) on several occasions. The CID would call the applicant and he would have to report at a particular CID office, and sign a register each time he attended. During this period the applicant was interrogated and beaten several times when reporting at the CID office. The CID suspected the applicant transported weapons for the LTTE, and that he had LTTE links.

   (i)On a day in 2012 the applicant received a call from a person who said he was a CID officer. The CID officer requested the applicant attend the CID office the following day. The applicant attended as requested. He was told to hand over the weapons he had stored, and the applicant was beaten with a “cricket wicket”. The CID threatened to shoot the applicant if he did not tell the truth.

   (j)After this incident the applicant decided it was not safe to remain in Sri Lanka. The applicant went to Colombo and departed Sri Lanka by boat in October 2012.

3. The applicant claimed:[2]

   I believe I could be arrested and or shot and killed by the Sri Lankan authorities particularly the CID for reason of having supported the LTTE by transporting weapons. As I departed Sri Lanka illegally I could be imprisoned and also suspected of having LTTE connections as I also claimed asylum in Australia. I have visible scars on my body which could also attract adverse attention if I am returned.

   [2] CB60

4. The applicant attended an interview before the delegate on 24 August 2016 (SHEV interview) and gave evidence that included the following:

   (a)The applicant was unaware whether the attack on him and the three other drivers was reported in the newspaper.[3]

   (b)The attack on him and the other drivers was carried out by Sinhalese speaking armed men in civilian clothing, which he believed to be persons from the CID.[4]

   (c)Following the attack, the applicant walked five minutes until he found a doctor and spent three days recovering at a private medical facility.[5]

   (d)The applicant may “attract adverse attention” because he has a brother who resides in the United Kingdom.[6]

   (e)The applicant is at risk of harm because he is “young”.[7]

   [3] CB179, [22]

   [4] CB179, [22]

   [5] CB179, [22]

   [6] CB181, [34]

   [7] CB181, [38]

   AUTHORITY’S REASONS

5. After the Authority identified the information before it, including what (with one exception) the Authority accepted as new information in relation to which it found there were exceptional circumstances justifying its consideration of it, the Authority identified and considered the applicant’s claims for protection. The Authority:

   (a)accepted the applicant is a Tamil male from a particular village in the Jaffna district;[8]

   (b)accepted the applicant grew up in a LTTE controlled area until it was captured by the SLA;[9]

   (c)accepted that several army camps remain today, and that military and security forces maintain a significant presence in the Northern Province;[10]

   (d)accepted the applicant was attacked with a knife in 2007, and three other drivers were attacked and killed on the same day;[11]

   (e)although it was not satisfied the identity of the attackers responsible for the 2007 attack is known, relying on country information the Authority found it plausible attacks on the applicant and the three other drivers were carried out by persons affiliated with the SLA government for reasons of Tamil ethnicity;[12] and

   (f)accepted the applicant received medical treatment for three days following the 2007 attack.[13]

   [8] CB177, [15]

   [9] CB178, [20]

   [10] CB178, [20]

   [11] CB179, [23]

   [12] CB179, [23]

   [13] CB179, [23]

6. The Authority, however, found unconvincing the applicant’s evidence in relation to the events that occurred after the 2007,[14] and, therefore, the Authority did not accept: the applicant was a person of adverse interest to the CID after the 2007 attack; or that the applicant was required to report to the CID between 2007 and 2012; or that the CID came to the applicant’s home during that period; or that the applicant has an adverse profile because of his truck driving activities, or due to an actual or imputed involvement with the LTTE; or that the CID had gone to the applicant’s home and enquired about him after he left Sri Lanka.[15] The Authority relied on the applicant’s having given inconsistent evidence about: where he lived and worked;[16] when the CID began targeting him;[17] whether he had been previously arrested by the CID and the duration of any such detention;[18] whether he had transported weapons for the LTTE or worked for Mr U;[19] whether he attended the CID camp for questioning or was questioned by the CID at home;[20] and about the way in which the CID contacted the applicant in 2012 and asked him to report to the CID office.[21]

   [14] CB179, [24]

   [15] CB180, [32]

   [16] CB179, [25]

   [17] CB179, [26]

   [18] CB180, [27]

   [19] CB180, [28]

   [20] CB180, [29]

   [21] CB180, [30]

7. The Authority accepted there was country information that confirmed scarring has been a risk factor in the past for returnees. The Authority, however, noted two things. First, the “scars could be easily covered by sleaves of a shirt”. Second, the Authority found country information does not indicate that body scars “are now likely to attract the attention of the authorities”. The Authority referred to a decision of the UK Tribunal that the issue of scarring was only relevant in circumstances where the person was being detained and stripped. The Authority was not satisfied the applicant is at risk of being detained and stripped on his return to Sri Lanka; and it was not satisfied the applicant is at risk of coming to the adverse attention of the authorities on his return because of his scars on his left and right arms.[22]

   [22] CB181, [36]

8. The Authority was also not satisfied the applicant faces a real chance of serious harm because of his Tamil ethnicity or because of any actual or imputed connections with the LTTE, or because of the place at which he lived, or because of his age, or for any other reason. The Authority relied on findings it had already made, and country information which the Authority was satisfied indicated that: (a) the overall situation of Tamils in Sri Lanka had improved considerably since the end of the civil war in 2009;[23] (b) there are no official laws or policies that discriminate on the basis of race, language, or social status;[24] and (c) there is no longer a presumption of a requirement for protection because a person is a Tamil from a former LTTE controlled area.[25]

   [23] CB181, [37]

   [24] CB181, [37]

   [25] CB182, [39]

9. The Authority accepted that, if he returned to Sri Lanka, the applicant would be identifiable to the authorities as a failed asylum seeker who departed Sri Lanka illegally. The Authority assessed this risk by reference to two matters. The first was the applicant’s being a failed asylum seeker with scars. The Authority was not satisfied the applicant faces a real chance of serious harm because he is a failed asylum seeker from Australia, or because of his scarring, now or in the reasonably foreseeable future. The Authority relied on its not being satisfied that, on the basis of country information that was before it, the applicant would be harmed by the Sri Lankan authorities because he is a Tamil asylum seeker, and there being no information before the Authority to indicate the applicant is at risk of coming to the attention of the authorities “on account of bodily scarring”.[26]

   [26] CB182, [42]

10. The second matter by reference to which the Authority assessed risk of harm to the applicant is its finding that on his return to Sri Lanka the applicant will be exposed to penalties for having breached the Sri Lankan Immigrants and Emigrants Act. The Authority referred to a DFAT report that states “most returnees will be fingerprinted and photographed, transported to the nearest Magistrates Court at the first available opportunity” after which “custody and responsibility for the individual shifts to the courts or prison services.” [27] Relying on country information, the Authority found that on his arrival the applicant will be charged and fined, and potentially detained for a brief period of time; and, if the applicant pleads not guilty, he will either be granted bail on personal surety or have a family member act as guarantor. The Authority further found: there is no real chance the applicant will face imprisonment; the imposition of a fine, surety or guarantee would not amount to serious harm; and, while the applicant may be briefly detained in poor prison conditions, that would not amount to serious harm. [28]

    [27] CB182, [44], “DFAT Country Information Report Sri Lanka” dated 24 January 2017

    [28] CB182-183, [44],[47]

11. Relying on these findings, the Authority was not satisfied the applicant was a “refugee” because it was not satisfied the applicant faces a real chance of suffering significant harm upon return to Sri Lanka, and was not satisfied the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act.[29]

    [29] CB183-185, [50]-[59]

    GROUND OF APPLICATION

12. The applicant relies on the following ground contained in the application filed on 26 June 2017 (emphasis in original):

    The IAA committed jurisdictional error by failing to provide adequate reasons for its decisions.  

    PARTICULARS

    a.At [12], the applicant claimed that he suffered severe knife wounds as a result of the incident in 2007.

    b.The IAA considered new information which included photographs of the applicant’s injuries as well as a medical report by Dr Malcolm Hughes which states that the applicant has “the hallmarks of a person who has had serious attempt at his life.”

    c.However, at [36], the IAA concluded that the applicant would not face a serious risk of harm if he returned to Sri Lanka due to his scarring.

    d.The IAA refers to the report ‘Country Information and Guidance. Sri Lanka: Tamil separatism’ which states:

    i.    “In considering scarring and allegations of torture generally, decision makers should take full account of any medical evidence produced. Expert medical evidence which potentially corroborates an account of torture must be given considerable weight”

    ii.   “Dr Smith’s evidence was that scarring was relevant only when a person was detained for other reasons, when they would be stripped to their underwear during interrogation and scarring might increase suspicion”

    e.At [36], the IAA concluded that it was not satisfied that the applicant would be at risk of being detained and stripped upon return to Sri Lanka.

    i.    However, at [55], the IAA accepts that the applicant, having departed Sri Lanka without a passport, may be detained at the airport and potentially on remand for a number of days pending bail.

    ii.   The IAA did not provide further reasons as to why it considered that the applicant would not be imputed with an adverse profile by the authorities due to his scarring.

13. In his written submissions the applicant submits that the Authority “assumes/conjects that during the initial processing at the airport, subsequent transfer to the court and or prison system, the applicant would not be searched”, but “no reasons are advanced as to how that conclusion is reached”, and “no evidence is cited to support it”.[30] Mr Hodges, who appeared for the applicant, repeated the substance of this submission. He submitted there was no evidence to support the Authority’s assumption that the applicant would not be detained and searched before the Authority.

    [30] Applicant’s Outline of Submissions, [20]

14. There are two difficulties with the applicant’s submissions. First, it assumes that the Authority’s accepting that the applicant would be charged and detained necessarily entailed a real risk the applicant would be searched, and thus would be exposed to the risk of his scars being revealed. But the applicant does not identify any material that was before the Authority that could render this assumption reasonable. Second, the applicant ignores the findings and country information on which the Authority relied. The Authority relied on its finding that the applicant did not have a profile that would expose him to adverse interest by the authorities, and on country information the Authority accepted showed that the risk of mistreatment for the majority of returning asylum seekers was low; and which showed that most returnees who had departed Sri Lanka illegally will be fingerprinted and photographed, and transported to the nearest magistrates court at the first available opportunity once investigations are complete, after which the custody and responsibility for such returnees would shift to the courts and prison authorities. The Authority also referred to country information about poor prison conditions in Sri Lanka. The applicant has not identified country information that was before the Authority that refes to persons being stripped and searched, or of the circumstances in which persons may be stripped and searched.

15. The Authority did not rely on an assumption that the applicant would not be stripped and searched while in detention. The Authority made findings about the risk profile of the applicant, and consulted country information about what occurs to returnees who share the risk profile the Authority found the applicant had who had left Sri Lanka illegally. There was nothing in that material that could reasonably have suggested to the Authority that such persons would be processed on his or her return in a manner other than that revealed by the country information to which the Authority referred, none of which suggested that such persons face a real chance of being stripped and searched. The ground on which the applicant relies, therefore, fails.

    DISPOSITION AND COSTS

16. The applicant has failed on the ground on which he relies. I propose, therefore, to order that the application be dismissed.

17. The parties agreed that costs should follow the event. The Minister submitted that if he were to succeed he would seek an order for costs set in the amount of $5,000. That is less than the amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). I am satisfied that $5,000 is a fair measure of the Minister’s costs which in justice the applicant should be ordered to pay. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $5,000.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       19 November 2020