CVN16 v Minister for Immigration

[2018] FCCA 292

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVN16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 292

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Authority overlooked an element or integer of the applicant’s claims considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 46A, 473DD

Cases cited:

NABE v Minister for Immigration (No.2) (2004) 144 FCR 1

Applicant: CVN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2673 of 2016

Judgment of: Judge Driver

Hearing date: 8 February 2018

Delivered at: Sydney

Delivered on: 23 February 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The further amended application handed up in court on 8 February 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2673 of 2016

CVN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 8 September 2016.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is from Sri Lanka and arrived in Australia by boat on 17 August 2012 as an unauthorised maritime arrival.  On 20 August 2012, he participated in an entry interview.[1]

   [1] see court book (CB) 224-231

4. Between 17 August 2012 and February 2013 the applicant was in detention, following which he was granted a temporary visa and released into the community on the Australian mainland.

5. The applicant made an application for a protection visa on 7 August 2013[2] and was notified that it was invalid by letter dated 19 May 2014.[3]

   [2] CB 5

   [3] CB 68

6. The applicant subsequently applied for a Safe Haven Enterprise Visa (SHEV) after being advised that the delegate had lifted the bar under s.46A of the Migration Act 1958 (Cth) (Migration Act).[4]

   [4] CB 74

7. On 16 June 2016 the applicant participated in an interview with the delegate.[5] 

   [5] CB 156

8. As noted above, that application was refused by the delegate and the decision was referred to the Authority for review under Part 7AA of the Migration Act. The applicant was notified by the Authority on 28 July 2016 that the matter had been referred for review.[6]

   [6] CB 593

9. On 18 August 2016 the applicant sent an email including a letter and other attachments to the Authority.[7]

   [7] CB 608-629

Applicant’s claims

1. The applicant’s claims were outlined in the statement accompanying his initial protection visa application[8] and a supplementary statement.[9]  They were also summarised by the Authority.[10] Those claims, as set out in the initial statement, may be summarised as follows:

   a)the applicant left Sri Lanka in fear of his life.  His family fled by boat to India where they stayed from 1990 to 1995 and after returning to Sri Lanka, his father was frequently arrested and beaten by the army.  He claimed that his father was suspected of being connected to the Liberation Tigers of Tamil Eelam (LTTE);

   b)in 1999 his father went missing while fishing at sea and is presumed dead;

   c)in 2002 his sister died.  She committed suicide due to “rape at the hands of the soldiers”;

   d)in 2006, the applicant was arrested by the army and taken to a police station where he was detained for a month and eventually produced in court and discharged;

   e)following that, he was frightened to continue living in his home town and used to move houses to avoid arrest;

   f)the applicant was arrested again in February 2008 but released the following day and was being sought by unidentified people in late 2008 or 2009; and

   g)in May 2010, the applicant was captured by the Karuna Group[11] and eventually released after two days after his mother paid a ransom.  He claimed to have moved after this incident, and also claimed that Criminal Investigation Division (CID) men came and made enquiries about him in June 2012, after which he started looking for ways to leave the country.

   [8] CB 113-115

   [9] at CB 116-118

   [10] at CB 639-640, decision record at [7]-[9]

   [11] a pro-government Tamil paramilitary group

2. Some of these claims were the subject of clarification in a later statement dated 23 October 2015.[12]  In that statement, in addition to elaborating on some of the matters in the earlier statement, the applicant mentioned visits to his family’s home after he left Sri Lanka and indicated that he still feared the Karuna Group, who had detained him in May 2010, and believed that he could be targeted for arrest by former “Karuna people” now in the police or army.

   [12] CB 116-118

3. The applicant claimed that he did not consider that he could live anywhere safely in Sri Lanka and also feared being detained and assaulted or inhumanly treated by the authorities for having left the country illegally. 

The Authority decision

Information before the Authority

1. In its reasons, the Authority first discussed the information before it, stating that it had regard to the referred material, and then noted that the applicant had provided a statement with a number of attachments on 19 August 2016.  The Authority had regard to the applicant’s response to the delegate’s decision as this was not considered new information.[13]

   [13] at [5a]

2. The Authority also considered new claims made by the applicant, concerning communications by the applicant’s mother and brother with Tamil politicians in August 2016 relating to the death of the applicant’s sister.[14]  The Authority, while finding this was new information, considered that there were exceptional circumstances that warranted that information being considered, as the events occurred after the delegate’s decision and, if the claims were credible, they were central to his protection claims.[15]

   [14] see [5b]

   [15] CB 639; s.473DD

3. However, the Authority did not have regard to other material that the applicant sought to submit which included, among other things, news articles that the Authority noted were not before the delegate and did not appear to have direct relevance to the applicant’s claims.[16]

   [16] at [6]

4. The Authority considered the applicant’s case as follows.

The sister’s death

1. The Authority rejected as fabricated the applicant's claim that his sister had committed suicide in 2002, after being raped by army officers.[17]  This was because, among other things, the Authority found the applicant’s evidence about his sister to be inconsistent.[18] 

   [17] at [19]

   [18] and see [17] for a summary of the various different accounts

Arrest in 2006

1. The Authority accepted that the applicant was arrested and detained by the Sri Lankan army for one month in December 2006 on suspicion of his being in the LTTE, and that his detention and assault amounted to serious harm.[19]  The Authority accepted that the applicant was released by the Court, and also that he was re-arrested in February 2007 but released the same night on a personal surety of his mother.  However, it found that the evidence before it did not suggest that the Sri Lankan authorities took any further action against the applicant following his release in February 2007, which was consistent with his being caught up in a cordon and search operation, but he was no longer considered of interest to the Sri Lankan authorities.[20] 

   [19] at [22]

   [20] at [22]

2. While the Authority accepted the 2006 arrest claim in general, it also found that the applicant had made other exaggerated and fabricated claims about the 2006 arrest.[21]

   [21] at [23]

Arrest in 2008

1. The Authority rejected the applicant's claim that he was detained in 2008[22] after noting that, unlike his claims about what happened in 2006, in relation to which he was able to provide some documentary evidence, there was nothing provided to support that claim, aspects of which were found to be implausible.[23]

   [22] at [26]

   [23] at [25]-[26]

Abduction by the Karuna Group in 2010

1. The Authority also did not accept that the applicant had been abducted by the Karuna Group in 2010, and after setting out the various matters recounted by the applicant in relation to this claim, noted that it considered this to be “another instance of the applicant providing fabricated claims of past harm”.[24] 

   [24] at [27]

Escape from arrest in 2012

1. The Authority also considered it implausible that the CID was looking for the applicant in 2012, and that it had been searching for him since 2006, and rejected his claim concerning any CID interest in the applicant in 2012.[25]

   [25] at [29]

2. After reviewing other claims made by the applicant, the Authority summarised its findings on the claims made at [32]. It accepted that the applicant had experienced serious harm in 2006, but rejected all the other claims about harm in 2008, 2010 and 2012.

3. The Authority then considered whether the applicant would face harm as a Tamil from the north of the country but was not satisfied that he faced a real chance of serious harm for any imputed pro-LTTE or anti‑Sri Lankan government political opinion, and/or because of his age, his Tamil ethnicity, his being born in the Northern province, his having lived in the Eastern province, and/or because he lived in an area of Sri Lanka that was once under LTTE control, now or in the reasonably foreseeable future.[26]

   [26] at [39]

4. Finally, the Authority considered whether the applicant would face harm either as a failed asylum seeker or as a person who had departed Sri Lanka illegally but found that neither circumstance would give rise to serious harm.[27]

   [27] see [42]; [50]

5. On that basis, having considered all the claims individually and cumulatively, the Authority found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) and thus did not satisfy s.36(2)(a).[28]

   [28] at [51]-[52]

Complementary protection

1. The Authority next considered whether there were substantial grounds for believing that if returned to Sri Lanka, there was a real risk that the applicant would suffer significant harm and found that he also did not meet the requirements of s.36(2)(aa).[29]

   [29] at [59]

The present proceedings

1. These proceedings began with a show cause application filed on 30 September 2016.  The application has been amended several times since then.  At the time of the trial of this matter on 8 February 2018, the applicant relied upon a further amended application filed in draft form with the applicant’s submissions on 19 January 2018 and handed up in court in final form by leave at the trial. 

2. There are two grounds in the further amended application, but the second ground was not pressed.  The sole remaining ground is:

   1. The applicant claimed to fear harm from the Karuna group and its successor, the TMVP, if required to return to Sri Lanka.  The Immigration Assessment Authority (“the IAA”) failed to deal with part of the claim.  This is a jurisdictional error.  The applicant more broadly claimed to fear harm from paramilitary groups if required to return to Sri Lanka.  The IAA failed to deal with this claim.  This is a jurisdictional error, or part of the IAA’s jurisdictional error arising from its failure to properly deal with the applicant’s claim concerning the TMVP.

3. I received as evidence the court book filed on 16 March 2017.  Both the applicant and the Minister prepared pre-hearing submissions but those of the Minister were overtaken by the further amendment of the application.  The applicant and the Minister made oral submissions through their counsel at the trial. 

Consideration

1. The applicant contends that the Authority failed to deal with all elements or integers of his claim to fear harm at the hands of the Karuna Group or other paramilitary groups in Sri Lanka.

2. The applicant claimed to fear harm from the Karuna Group and its successor, the TMVP, if required to return to Sri Lanka.  The claim appears in detail in the applicant’s statement dated 23 October 2015 as follows:[30]

   I still fear the Karuna group … Now, this group is known as TMVP and are part of the military forces and police.  I therefore fear the authorities will be targeting me not just because of being Tamil [or] my father’s LTTE connection, but because the TMVP people in the army or police would know me and target me.

   I could also be targeted for arrest by former Karuna people now in the police or army because they would think me or my family can pay ransom money to them.  Or, they might think I could identify the people who took me into custody previously and feel threatened by my presence in the country.  I do think I could remember the faces of some of the people who detained me previously.  Given there is a new Government, there are former Karuna people who will want to protect themselves from future prosecution … so would want to target me before I could provide evidence against them.  I fear [their] non-uniformed people would abduct me and I would disappear and be killed by them.

   [30] CB 117

3. The claim appears in shorter form in the applicant’s statutory declaration dated 22 July 2013 where he states:

   Who might harm me if I return: The Sri Lankan authorities, CID, Karuna group and other government backed militias.

4. The applicant, through his migration agent in a written submission dated 5 August 2013,[31] more broadly claimed to fear harm from paramilitary groups.  See in particular:

   a)at CB 5.6 – “In summary, the applicant fears persecution at the hands of … affiliated paramilitary organisations …”

   b)at CB 6.9 – “the activities of paramilitary groups whose actions are condoned by the central authorities …”

   c)at CB 9.3 – “Tamils from the East face particular threats from paramilitary groups …”

   d)at CB 9.9 – discussion about “non-LTTE paramilitary groups” including the TMVP; and

   e)at CB 10.5 – “The applicant’s return to the East would see him regularly come into contact with members of … associated paramilitary groups that would heighten his vulnerability to facing harm at the hands of these armed groups.”

   [31] at CB 5-20

5. There are said to be two aspects or integers of the claim about the Karuna Group and TMVP as follows:

   a)one aspect of the claim is based on or follows from the applicant’s claim in his July 2013 statutory declaration that in May 2010 that he was captured and detained for two days by the Karuna Group; and

   b)a second aspect of the claim is said to go beyond and be separate from the applicant’s claim of capture and detention by the Karuna Group in May 2010.  For example, the applicant states in his October 2015 statement that, “I could also be targeted for arrest by former Karuna people now in the police or army because they would think me or my family can pay ransom money to them”.  As noted at [34(e)] above, the applicant’s agent states in his August 2013 submission:

   The applicant’s return to the East would see him regularly come into contact with members of … associated paramilitary groups that would heighten his vulnerability to facing harm at the hands of these armed groups.

6. In relation to the aspect of the claim at [35(a)] above, the applicant concedes that the Authority disposed of this matter by its finding at [27]:

   I reject the applicant was abducted by the Karuna group.

7. However, that finding is said not to dispose of the aspect or integer of the claim at [35(b)] above.  The applicant submits that, unless the Authority dealt with that element or integer of the claim by some separate finding (which the applicant says it did not), the Authority failed to deal with a claim by the applicant, which is a jurisdictional error.[32]

   [32] see NABE v Minister for Immigration (No.2) (2004) 144 FCR 1

8. As to whether the Authority dealt with the element or integer of the claim at [35(b)] above, the applicant submits as follows:

   a)the Authority at [39] found that it was not satisfied that the applicant faces a real chance of serious harm “from the Sri Lankan authorities or Sinhalese” for various reasons.  However, this finding does not dispose of the applicant’s claim, which is claim of fear of harm from members of the TMVP; and

   b)the Authority at [51] made a “wrap-up” finding as follows:

   …I have considered the applicant’s claims individually and cumulatively … I am not satisfied the applicant has a well-founded fear of persecution from the Sri Lankan authorities or Sinhalese …

   Again, this finding does not dispose of the applicant’s claim at [35(b)] above, which is claim of fear of harm from members of the TMVP.

9. Further, the applicant submits that the Authority failed to deal with his related but broader claim, made through his migration agent, that he feared harm from paramilitary groups if required to return to Sri Lanka.  Again, this is said to be a jurisdictional error, or part of the jurisdictional error referred to above.

10. I accept that the applicant claimed to fear harm from paramilitary groups, in particular the Karuna Group, which operated in the east of Sri Lanka.  That fear was said to be based principally upon the applicant’s alleged abduction by the Karuna Group in 2010 but also on threats and attempted conscription.[33]  Among other things, the applicant’s representative drew attention to the activities of paramilitary groups in the north and east of Sri Lanka.[34]

    [33] see the submission by the applicant’s representative on 5 August 2013 at CB 5

    [34] see CB 6, CB 9 and CB 10

11. These claims were, to some extent, developed in later submissions, in particular, the applicant’s supplementary statement of 23 October 2015 at [7]-[8].[35]

    [35] CB 117

12. The claim of abduction was expressly dealt with by the Authority in its reasons at [27].[36]  That is conceded by the applicant.  The applicant asserts, however, that there were remaining elements or integers of his claims concerning paramilitary groups that were not dealt with.  I disagree. 

    [36] CB 646

13. In my opinion, the remaining elements or integers of the applicant’s claims concerning paramilitary groups drew upon his attributes as a Tamil born in the northern province who subsequently lived in the east.  These claims were dealt with by the Authority in its reasons from [34]-[39].[37]  The Authority concluded at [39] that it was not satisfied that the applicant faces a real chance of serious harm from the Sri Lankan authorities or the Sinhalese majority for an imputed pro-LTTE or anti Sri Lankan government political opinion “and/or because of his age, he is a Tamil, he was born in Northern province, he lived in Eastern province, and/or because he lived in an area of Sri Lanka that was once under LTTE control”.  In my opinion, properly understood, that paragraph first deals with the claimed fear of harm from particular actors based upon an imputed political opinion and then deals with a fear of harm by anyone involved arising from the applicant’s other attributes.  This, in my opinion, encompasses the claimed fear of harm at the hands of paramilitary groups.

    [37] CB 647-648

14. It is true that [39] begins with the words, “For the above reasons”, and hence the rolled up findings must be read in the context of those reasons.  Relevantly, the Authority’s reasons can be found at [37], where the Authority stated:[38]

    The DFAT country and thematic reports indicate that the overall situation for Tamils in Sri Lanka has improved since the end of the civil conflict in 2009. There have been improvements in the security situation in the North and the East since the end of the conflict, however military and security forces continue to have presences in these regions. DFAT advises that the monitoring and harassment of Tamils in these areas has decreased under the new government.  Politically, the new government has taken a more proactive approach to human rights and the issue of reconciliation than previous governments. The DFAT country report further states there is a moderate level of societal discrimination against Tamils still present in Sri Lanka, but there is no evidence of official laws or policies that discriminate based on ethnicity or language, including in the context of access to education, employment and housing. Both DFAT and the most recent UNHCR guidelines assess that Tamil civilians who live in former LTTE areas in the North and East, including Tamils that provided low level support to the LTTE or who had family members that are former members of the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted. (citation omitted)

    [38] CB 648

1. While I accept that the focus of attention in that paragraph is the Sri Lankan authorities, it is also plain that the Authority was dealing generally with the improved security situation in the north and east of Sri Lanka since the end of the civil war, which logically includes the activities of paramilitary groups in those areas.

2. The applicant’s claims in relation to paramilitary groups were at the margins of his claims for protection (especially when uncoupled from his claim of abduction by the Karuna Group) and the Authority was entitled to deal with the residual claim at a relatively high level of abstraction.  It was unnecessary for the Authority to recite every asserted fact and every detail of the asserted fear.  I reject the contention that the Authority overlooked an element or integer of the applicant’s claims.

Conclusion

1. I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  23 February 2018