CVJ16 v Minister for Immigration

[2017] FCCA 1203

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1203

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority failed to make a relevant finding – whether the Authority considered the applicant’s claims cumulatively – no jurisdictional error – application dismissed.

Legislation:

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

Applicant: CVJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2653 of 2016

Judgment of: Judge Street

Hearing date: 6 June 2017

Date of Last Submission: 6 June 2017

Delivered at: Sydney

Delivered on: 6 June 2017

REPRESENTATION

Counsel for the Applicant: Mr B Zipser by direct access

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the amended application attached to the applicant’s submission dated 22 May 2017.

2. Direct that the amended application be filed electronically on or before 5:00 p.m. on 9 June 2017.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2653 of 2016

CVJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 Part 7AA made on 5 September 2016, affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived on Christmas Island on 17 November 2012 having departed Indonesia by boat.

Claims for protection

1. The applicant was found to be a Tamil and Hindu from the Northern Province in Sri Lanka. The applicant alleges that his problems began in 2007 when he began living in a particular village in the Jaffna district, and had opened up a liquor shop. The applicant alleges in around 2007, members from the Eelam People’s Democratic Party (“the EPDP”), being a Tamil political and paramilitary group, came to his liquor store and asked him to pay money. The applicant says that he refused, and spoke with them roughly, and that a few days later he was heading home at night on his bicycle, having closed the shop, and he was approached by men, some of whom were Sri Lankan Army officers, in a white van, and that they obstructed and prevented the applicant from going home.

2. The applicant alleges he was dragged into the van, blindfolded and beaten. The applicant alleges that he was detained for three to four days and was tortured during this time, and that the men threatened to kill him if he did not pay 150 lakhs. The applicant alleged that he was tortured because they wanted money from him. The applicant says that he had no option and wanted to leave, so he sold his liquor store for a cheap price, and while the men wanted 150 lakhs, they agreed to a lower amount of 100 lakhs. The applicant alleges that he was allowed to contact his wife and that his mother was able to sell the liquor shop in a few days and that his mother and wife were able to raise the necessary lakhs to give to a friend, which were taken to a secret location to hand to those holding the applicant to secure his release.

3. The applicant alleges that there was also a guarantee signed by his friend to pay the balance of the amount. The applicant says he was taken to a field and was asked to jump out of a moving vehicle, was then pushed out of the vehicle, and that he injured his shoulder on exiting the vehicle. The applicant alleges he reported the incident to a local Grama Sevaka and that he was told nothing could be done, and he was given a new letter to obtain a new national identity card, which he received in 2007.

4. The applicant alleges that he then relocated to Colombo and worked as a chef in a Tamil food shop, and while he was working there his friend told him that armed men had contacted him asking him to pay the balance of the money, and that his friend had told them he did not know the applicant’s whereabouts. The applicant says that his friend was then gunned down in front of a shop. The applicant alleges that the men who were after him had come to the shop when he was not working and not in attendance and that the owner and assistants described the appearances of the men who had come to the shop.

5. The applicant then decided to leave Sri Lanka using his own passport, and travel to India where he remained until 2009. At the end of 2009, the applicant had hoped the situation had improved, and returned to Sri Lanka by plane. On return, the applicant commenced a new business purchasing items in bulk from suppliers in Colombo and selling these items to shop owners in the Northern Province. The applicant says that a Tamil businessman at this time was targeted by paramilitary groups and the army, and that the businessman’s son was killed.

6. The applicant alleges that he was afraid, and then moved to another location. The applicant alleges that he opened a restaurant which became a profitable business, and that sometime in October 2011, he was approached at the restaurant by a few men in civilian clothes. The applicant alleges that he recognised a man as being one responsible for abducting and torturing him in 2007. The applicant alleges he agreed to pay them what he could afford on a monthly basis, and that he was bashed and his head struck the wall. The applicant alleges he was given 8 days to pay the outstanding 40 lakhs.

7. The applicant alleges he handed over the restaurant to a friend and that the applicant went into hiding. The applicant alleges he went to his wife’s relatives’ house and stayed there for a few days, and that he then travelled to Colombo, and that he left Sri Lanka by plane a few days later. The applicant alleges in around 2014, whilst in Australia, his wife informed him that unknown persons had approached her at a bus stand in Jaffna and asked her where the applicant was, and told her that he owed them money. The applicant alleges his wife moved houses because she was afraid to remain in the same house.

8. The applicant fears that he will be seriously harmed by the army or members of the Tamil paramilitary groups if he returns to Sri Lanka. The applicant fears that if he returns to Sri Lanka he will be killed because he owes the army or Tamil paramilitary group 40 lakhs.

The delegate’s decision

1. On 7 July 2016, the delegate declined to grant the applicant a protection visa and found that the applicant failed to meet the criteria under the Act.

2. The delegate found the applicant was not an excluded fast-tracked applicant.

The Authority’s decision

Information before the Authority

1. On 8 July 2016, the Authority wrote to the applicant informing the applicant that the matter had been referred to the Authority for review. The Authority informed the applicant that it had been provided with the documents that the Department considered relevant. The letter informed the applicant that there are only limited circumstances in which it could receive new information. The letter attached a fact sheet and practice direction giving the applicant an opportunity to put on submissions and to adduce new information.

2. On 24 July 2016, submissions were provided on the applicant’s behalf addressing certain adverse findings made by the delegate and putting submissions, as well as annexing a document purportedly from the Sri Lankan Police dated 8 July 2016. On 1 August 2016, two further documents were provided on behalf of the applicant to the Authority, one being a letter dated 20 June 2016, issued by a teaching hospital in Jaffna, and the second being a letter issued by a member of parliament.

3. The Authority, in its reasons, identified the applicant’s background and the information that had been provided under s.473CB.

4. The Authority addressed the submissions that had been received on 25 July 2016 and 2 August 2016. The Authority identified that, to the extent the submissions discuss the evidence which was before the delegate and respond to the delegate’s reasoning and findings, the Authority did not consider that to constitute new information and had regard to it. The Authority identified the police form and letter as post-dating the delegate’s decision, and that the medical evidence pre-dates the delegate’s decision by only a short period.

5. The Authority was satisfied that there were exceptional circumstances to consider the new information. The Authority also identified that there had been a submission requesting a fresh hearing and to provide the applicant with an opportunity to clarify concerns which had been raised by the delegate. The Authority was satisfied that the issues raised by the applicant were discussed at the interview and that the submissions engage with any concerns the applicant has with the delegate’s decision. Accordingly, the Authority was not satisfied that an interview was necessary or required in the circumstances of the present case.

Consideration of the claims

1. The Authority identified the applicant’s claims. The Authority correctly set out the relevant law. The Authority took into account the submissions as to the applicant’s limited education and the psychological report and other medical information relating to the applicant.

Claims relating to the EPDP

1. In relation to the applicant’s claims concerning the EPDP, the Authority accepted that the applicant had a relatively successful business and was targeted for extortion by the EPDP and that officers of the SLA may have been present, which ultimately forced him or his mother to sell his business/licence to pay an extortion demand. The Authority accepted that the incident acted as a catalyst for the applicant to leave Jaffna.

2. The Authority also accepted that the applicant’s friend facilitated his release. The Authority did not, however, accept that there was any residual debt owed to the EPDP or that his friend acted as a surety or that the friend was targeted and killed by the EPDP. The Authority accepted that the applicant and the person who facilitated his release were friends and was prepared to accept that that person assisted the applicant during the initial extortion of 2007. The Authority found the applicant’s evidence, that there was an outstanding extortion amount was still to be paid, or that the friend acted as a surety in relation to the amount, to be implausible and did not accept that that occurred.

3. The Authority accepted that the applicant could be found by a group such as the EPDP despite not telling anyone of his whereabouts and that the intelligence may not be complete. The Authority accepted as plausible that his boss might seek to protect him by not revealing his whereabouts if approached by the EPDP or authorities. The Authority did not agree with, and found unconvincing, that if the applicant was, in fact, tracked down by the EPDP, why it would be the case that they would only present at the shop on one occasion and how it was possible for the applicant to be able to arrange for his departure to India and his family’s return to Jaffna without being discovered.

4. The Authority also expressed concerns in relation to the applicant’s evidence in relation to his decision to leave for India following the EPDP visit at his shop. The Authority observed, based on the applicant’s own evidence, at this stage he had already been detained and tortured by the EPDP and that his friend was subsequently murdered, allegedly by the EPDP, in connection with having been a surety. The applicant alleges that the EPDP had gone as far as to go to Colombo to find him. The Authority, in that context, found it implausible that the applicant would leave for India on his own and return his family to Jaffna knowing how serious the risks from the EPDP had become.

5. The Authority considered the applicant’s evidence that they did not go with him because of their financial difficulties because he believed it was more appropriate for him to remove himself from the situation and his explanation that his family kept a low profile in Jaffna. However, given the escalation of the threat of the EPDP, the Authority did not accept that if these events genuinely occurred that the applicant would leave the country and return his family to the area where the risk from the EPDP originated and was at its highest.

6. The Authority noted the applicant said that his family lived discretely. However, the Authority observed that this only underpins how significant the risk of harm was to them. In those circumstances, the Authority did not accept that the EPDP tracked the applicant to Colombo or that the visit prompted him to leave for India and return his family to Jaffna. The Authority did not accept that the EPDP continued to look for him or that there was a surety or amount remaining to be paid. The Authority did not accept that the friend was murdered in connection with those matters.

7. The Authority found that the applicant had been able to return to Jaffna and run a business, including undertaking frequent travel between Jaffna and Colombo. The Authority considered it would be implausible that the applicant would not have been identified by the EPDP or the SLA if he had remained a target for the group or otherwise continued to have any profile or interest for them. The Authority rejected that the EPDP had any ongoing interest in the applicant.

8. The Authority also expressed concern in relation to the applicant’s evidence as to the cost of his departure for Australia. The Authority accepted that the applicant experienced a significant traumatic event in 2007 in the form of protracted detention, during which time the Authority was prepared to accept that the applicant was tortured and extorted, which resulted in him having to pay a large amount of money to the EPDP and resulting in him losing his liquor business. The Authority found the acts committed against the applicant were criminal in nature, but disagreed with the submissions that the extortion can be a complex phenomenon and is not always a case of straightforward criminality and self-interest.

9. The Authority made reference to the totality of the circumstances and accepted that the applicant was targeted for the essential and significant reason of his ethnicity and/or because he was a Tamil businessman or wealthy Tamil. The Authority accepted this incident was a significant and traumatic event that may have acted as a catalyst for him to leave for Colombo, which the Authority found he did through the assistance of his family and connections he had made through his business.

10. The Authority was not satisfied that this was due to a continuing threat from the EPDP. The Authority found the applicant’s subsequent claims to be implausible and lacking in credibility and for the reasons given did not accept that those incidents occurred at all. Those findings led the Authority to find that the applicant was not a credible witness and found that the applicant had fabricated his later claims in order to advance his prospects of obtaining a protection visa.

Claims relating to an LTTE profile

1. The Authority found that the letter from the MP and the police could not be reconciled with the applicant’s account of his claims. Considering the entirety of the applicant’s evidence, the Authority did not accept that the applicant had any actual or imputed LTTE connection or profile and found that no member of his family had such a profile.

2. The Authority also took into account the applicant’s scarring and whether that would give rise to any issue on his return. The Authority did not accept that the applicant or his family members have any connection or association with the LTTE and do not accept that simply being part of the diaspora would impute them with such a profile or that there is any real chance of the applicant facing harm on this basis.

3. The Authority made reference to having considered all the circumstances and did not accept the applicant has an actual or imputed or suspected LTTE connection. The Authority did not accept that such a connection would be imputed to him as a result of his ethnicity as a Tamil or for being from the North or as a result of the 2007 incident, including when having regard to any scarring that he may have from the incident. The Authority did not accept that the applicant has been imputed to have a connection with the LTTE through his family, those that are part of the Tamil diaspora, and given the time the applicant has spent in Australia. The Authority did not accept the applicant is currently under investigation by the CID, the TID, the SLA, the Sri Lanka Police or any other authority for reasons of his financial support for the LTTE or for any other reasons.

Claims relating to wealth

1. The Authority found that the risk to the applicant from being a wealthy Tamil businessman or being wealthy was remote. The Authority found that there is not a real chance the applicant would be targeted by the EPDP or any other groups for any of these reasons should he return to Sri Lanka in the reasonably foreseeable future.

Failed asylum seeker claims

1. The Authority was satisfied the applicant would not face a real chance of harm on the basis that he is an asylum seeker or from any actual or imputed political opinion that could arise from him having sought asylum, including as Tamil from the North.

2. The Authority made reference to having considered all the circumstances and found that there is not a real chance the applicant would face serious harm on return on the basis that he is a failed asylum seeker, returnee, any actual or imputed or suspected political profile or any other reason related to this aspect of his claims.

3. The Authority referred to having considered all the circumstances in their totality and found the applicant would not face a real chance of serious harm on the basis that he is a failed asylum seeker or a returnee, as a Tamil, as a Tamil from the North, a wealthy Tamil, a Tamil businessman, or for being from a wealthy Tamil family, any actual, imputed, or suspected connection to the LTTE as a result of the incident with the EPDP in 2007, or for any other reason considered above. The Authority found the applicant did not meet the requirements of the definition of refugee under s.5H(1) and that the applicant did not meet the criteria under s.36(2)(a) of the Act.

Complementary protection assessment

1. The Authority then turned to the issue of complementary protection and considered the applicant’s claims. The Authority was not satisfied that the applicant’s claims in relation to being a Tamil would constitute significant harm, whether singularly or cumulatively. The Authority made reference to the process to which the applicant would be subjected to upon return, including the brief detention and questioning, including with regards to his scarring, and found that would not amount to significant harm as defined under the Act. The Authority found that the processes did not result in the intentional infliction of pain or suffering or extreme humiliation. The Authority did not accept that those processes constitute significant harm, whether considered singularly or cumulatively.

2. The Authority was not satisfied that there is a real risk the applicant will face significant harm upon return to Sri Lanka for the reasons claimed by the applicant. The Authority found there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant returning from Australia to Sri Lanka there is a real risk that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act and confirmed the decision under review.

Proceedings before this Court

Grounds of the application

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

   1. The applicant claimed that in 2007 he fled to India because the EPDP had recently found the applicant in Colombo and demanded that he pay some money to them (CB 43, 58, 131 [73], 180 [22]) The Immigration Assessment Authority (“the IAA”) accepted that the applicant travelled to India in about 2007, rejected the applicant’s explanation for travelling to India in 2007, but did not otherwise consider and make a finding concerning why the applicant travelled to India. In the circumstances, the IAA fell into jurisdictional error.

   2. The applicant’s agent provided a submission to the IAA reminding the IAA of the need to consider the applicant’s claims cumulatively. The IAA did not consider whether, considering the applicant’s claims cumulatively or collectively, he had a well-founded fear of persecution. If so, the IAA fell into jurisdictional error.

Consideration of grounds

Ground 1

1. Mr Zipser of counsel submitted in relation to Ground 1 that there had not been an intellectual engagement with the applicant’s claim to fear harm in relation to the extortion that he had faced from the EPDP in respect of his reasons for travelling to India and that this constituted a jurisdictional error. A fair reading of the Authority’s reasons reflects an intellectual engagement with the applicant’s claims and it was open to the Authority to make adverse findings in relation to the applicant’s credibility. It was not necessary for the Authority to accept the applicant’s evidence as to why he left for India and it was not necessary for the Authority to make a finding of fact as to the applicant’s actual reason for going to India.

2. It was open to the Authority to reject that the EPDP had tracked the applicant to Colombo and to reject that the claimed visit prompted him to leave for India. The Authority was under no obligation to accept uncritically the applicant’s claims and evidence. The Authority did not have to have rebutting evidence before holding that the particular assertion was not made out. The Authority set out comprehensive reasons for rejecting the applicant’s claims that his departure to India was prompted by a visit by the EPDP. That finding was open and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, Mr Zipser of counsel submitted that the Authority had failed to consider the applicant’s claims cumulatively. I accept the first respondent’s submission that the reference to having considered the totality of the applicant’s circumstances and the reference to considering all the circumstances are to the same effect as having considered the claims cumulatively. Further, the Authority expressly referred to having considered the claims singularly and cumulatively in relation to the issue of complementary protection.

2. The Authority correctly identified the relevant law in relation to the requirements of s.5H(1), including having a well-founded fear of persecution and the work done by s.5J. The Authority made a finding in relation to that well-founded fear in holding that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1). On the face of the Authority’s reasons the Authority made that finding having considered the claims cumulatively. No jurisdictional error is made out by Ground 2.

Conclusion

1. The amended application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  26 June 2016