CVZ16 v Minister for Immigration
[2017] FCCA 401
•5 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVZ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 401 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka, principally because of his late sister’s involvement with the Tamil Tigers – applicant’s fears found to be genuine but not well founded – risk of future harm not found to be serious or significant – numerous legal errors alleged – whether the Authority erred in considering the applicant’s claims relating to his late sister and extortion demands considered – whether the Authority failed to deal with a claim considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.5H |
| Cases cited: BMQ16 v Minister for Immigration & Anor [2017] FCCA 150 Minister for Immigration v SZQPA [2012] FCA 1025 Randhawa v Minister for Immigration (1994) 52 FCR 437; [1994] FCA 1253 |
| Applicant: | CVZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2691 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges of Stephen Hodges, Solicitor |
| Solicitors for the Respondents: | Mr L Dennis of Minter Ellison |
ORDERS
The application filed on 4 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2691 of 2016
| CVZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 5 September 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa known as a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male born in Sri Lanka on 20 September 1975[1].
[1] Court Book (CB) 167
The applicant arrived in Australia without a valid visa by boat on 3 October 2012, and applied for a protection visa on 5 January 2016[2].
[2] CB 212: [1]
The application was rejected by the delegate on 19 July 2016[3].
[3] CB 212: [1]
The Minister’s refusal was automatically referred to the Authority which published its decision on 5 September 2016.
The decision of the Authority was unfavourable to the applicant and the applicant was refused a protection visa.
The applicant’s claims
The applicant is a Tamil Hindu citizen of Sri Lanka, from Batticaloa District, Eastern province[4].
[4] CB 213: [6]
The applicant’s claims include the following[5]:
a)one of the applicant’s five sisters voluntarily joined the Liberation Tigers of Tamil Eelam (LTTE) when she was 15 or 16 years old. She held the rank of Lieutenant in the military wing and died in combat as an LTTE martyr on 22 May 2000;
b)the applicant faced many problems on account of this sister. His family is well-known in the area as a martyr’s family. The Sri Lankan authorities are aware of his sister’s involvement and treat his family different to other Tamils in the area as a result;
c)in 2006, the applicant was arrested by the Criminal Investigation Division (CID) in Colombo and detained for three days in Wattala under suspicion of being an LTTE member. During his detention he was beaten severely and repeatedly asked if he was an LTTE member;
d)from June 2007 – 2010, the applicant worked as a baker at the US army base in Baghdad, Iraq;
e)in 2010, the applicant returned to his village and faced a lot of problems. The Sri Lankan Army (SLA) frequently visited his home and threatened to harm him unless he gave them money and jewellery (which he did). They came in search of him whenever an incident occurred in the area;
f)the applicant went into hiding, staying at his cousin’s house in Batticaloa town and keeping a low profile. During this time, the SLA and police went to his parents’ home in search of him;
g)one of the applicant’s sisters residing in Switzerland advised him to leave Sri Lanka as it was not safe, and the authorities would soon find him. The applicant departed Sri Lanka in September 2012.
[5] CB 212-3: [4]
The applicant claimed to fear harm from the Sri Lankan authorities if he were return to Sri Lanka, as he fears that the authorities will continue to target him and will harm him because his sister was an LTTE martyr. He also fears consequences resulting from his illegal departure and asylum claim in Australia[6].
[6] CB 213: [4]
The decision of the Authority
At [5][7] the Authority considered the applicant’s overall credibility and, while acknowledging some discrepancies regarding dates, accepted that the applicant was a credible witness and that he had provided a genuine reflection of his collections.
[7] CB 213
At CB 213-220, the Authority considered the applicant’s claims and evidence, and made findings which included the following that it:
a)accepted that one of the applicant’s sisters was a ranking LTTE member who was killed in combat in 2000 and was therefore considered an LTTE martyr[8];
[8] CB 213: [7]
b)accepted that the applicant was arrested by the CID at a checkpoint in 1999, interrogated, beaten and detained for three days on suspicion of being an LTTE member because they identified him as originating from an LTTE controlled area[9];
c)was satisfied that the applicant was not of adverse interest to authorities on account of any suspected LTTE membership or support, nor for his sister’s membership or any other reason between his 1999 release and his return from Iraq in 2010[10];
d)accepted that different members of the local SLA and police units used their knowledge of his sister’s LTTE involvement to extort money and jewellery on numerous occasions, the last time being in May 2012[11];
e)accepted that the applicant was harassed by authorities during this time whenever an incident occurred in the area[12];
f)found that the extortion against the applicant was opportunistic extortion by corrupt officers and that the threats against him were empty threats which did not amount to serious or significant harm[13];
g)accepted that his family has faced discrimination on account of his sister’s LTTE involvement but on the evidence was not satisfied that this has been of a level which amounted to serious or significant harm[14];
h)found that the harassment against the applicant did not otherwise amount to a level of serious or significant harm[15];
i)was not satisfied that any members of authorities visited his home looking for him, for extortion or other purposes after his departure[16];
j)was not satisfied that the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, or his Tamil race combined with his origins from the East[17];
k)found that it is not implausible that the applicant would be monitored upon return to his home area, but did not accept that this would amount to serious harm[18].
[9] CB 213: [9]
[10] CB 214: [11]
[11] CB 214: [12]
[12] CB 214: [13]
[13] CB 214: [15]
[14] CB 215: [16]
[15] CB 215: [17]
[16] CB 217: [27]
[17] CB 218: [30]
[18] CB 220: [41]
Despite accepting most of the applicant's factual claims, the Authority found that none of the claimed experiences “amounted to serious or significant harm”[19].
[19] CB 214–215: [15]–[17]
In light of these findings and relevant country information[20], while accepting that the applicant may face “some discrimination or harassment including monitoring” on return to Sri Lanka[21], the Authority found that the applicant would not suffer harm on account of his Tamil ethnicity or as a perceived supporter of the LTTE[22].
[20] CB 216–218: [22]–[28]
[21] CB 218: [29]
[22] CB 219: [34]
The Authority accepted the applicant would return as a failed asylum seeker who departed illegally[23]. However, in light of country information and the applicant’s profile, the Authority did not accept that any experiences or penalties on return would amount to serious harm[24]. The Authority also found that any “conviction or punishment” for his illegal departure would be the “result of a law of general application”[25].
[23] CB 218: [31]
[24] CB 218–220: [32]–[40]
[25] CB 219–220: [39]
For those reasons, and considering the applicant’s claims cumulatively[26], the Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act 1958 (Cth) (Migration Act)[27]. The Authority made specific findings addressing the applicant's claims in the context of complementary protection[28]. The Authority concluded that the applicant's claims did not give rise to a real risk of significant harm[29].
[26] CB 220, 222: [41], [52]
[27] CB 216, 220: [21], [41]–[42]
[28] CB 221–222: [45]–[51]
[29] CB 222: [52]–[53]
The present proceedings
These proceedings began with a show cause application filed on 4 October 2016. There are five grounds in that application, upon which the applicant continues to rely:
Ground 1
The assessor committed error in failing to undertake a quantitative assessment of the “specifics of the applicant's case” in considering the applicant's need for protection due to his sister's high profile family link to the LTTE.
PARTICULARS
(i) The assessor accepted that the applicant's sister was a high ranking LTTE member, was killed in combat and was considered an LTTE martyr ([7]).
(ii) The assessor accepted that the applicant was harassed by authorities when incidents occurred in the area ([13], [17], [21]), and also accepted that the harassment was a result of his sister's LTTE involvement, and his profile as a young Tamil male in the East ([17]).
(iii) One of the risk profiles identified by the UNHCR is persons with family links to former LTTE combatants or cadres ([24]).
(iv) The applicant clearly falls squarely within that risk profile, which the assessor accepted, as indicated above.
(v) The assessor noted that the UNHCR advises that the need for protection for persons falling within that risk profile depends on the specifics of the case ([24]). However, the assessor did not follow her own direction to consider the specifics of the case; she merely stated that they must be considered, but did not proceed to do so.
Ground 2
The assessor fell into error in assuming without consideration that threats which do not lead to violence cannot amount to serious harm.
PARTICULARS
(i) The assessor accepted at several points that the applicant was extorted and threatened, but was not harmed, even when he refused to comply with the extorter's demands ([12], [15], [21], [27], [41]).
(ii) The assessor failed to consider that, in some cases, threats can amount to serious harm even where violence does not result. In these circumstances, this is because the threats were carried out for a convention reason, being that the applicant is the family member of an LTTE martyr.
(iii) In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Mason CJ stated at 388: “Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason.”
Ground 3
The assessor fell into error in assuming without making a qualitative assessment of the specific threats and extortion to the applicant that extortion cannot amount to serious harm.
PARTICULARS
(i) The assessor accepted that the applicant was extorted and threatened ([12], [15], [21], [27], [41]), but failed to make a qualitative assessment of those specific threats.
(ii) It constituted an error for the assessor to find that extortion cannot amount to serious harm, without even considering the nature of the threats and extortion to the applicant, and the underlying convention reason behind them, being that the applicant is the family member of an LTTE martyr.
Ground 4
The assessor fell into error by failing to consider if the extortion of the applicant, even though referred to as being opportunistic by local officials was directed to the applicant for a convention reason, that is a family member of a Tamil martyr.
PARTICULARS
(i) In SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175, the court stated at [15]:
“Extortion related refugee claims require very particular care in the analysis of the underlying occasion for the claimed extortion. This may reveal that the occasion for the extortion is multi-factorial but nonetheless founded in part in a particular vulnerability to extortion for a Convention-based reason…”
(ii) SZTAP at [15] also cited Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111 at [46] and [48]:
[46] “... In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a convention reason. The extorted party may have been chosen specifically as the target of extortion for a convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.”
[48] “In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of convention-related persecutory conduct ... Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.”
(iii) The assessor found that the extortion against the applicant was opportunistic ([15), [21], [27]), and that it was of no consequence for that reason. The assessor, therefore, was not satisfied that the applicant would be subject to serious harm if he were to return to Sri Lanka ([21]).
(iv) The word ‘opportunistic’ indicates that the extorting party is acting for a self-interested personal reason. However, the assessor failed to consider that even if the extort was opportunistic, it was also because the applicant was chosen as the target of extortion for a convention reason, or was vulnerable to extortion for a convention-based reason; specially, because the applicant is a family member of an LTTE member and Tamil martyr.
Ground 5
The assessor committed error by failing to consider a claim made by the applicant.
PARTICULARS
(i) The assessor failed to consider the applicant's claim that in 2006, he was arrested by the CID in Colombo and detained for three days in Wattala under suspicion of being an LTTE member, and that during his detention he was beaten severely and repeatedly asked if he was an L TTE member.
(ii) This claim was stated by the IAA in the summary of the applicant's claims for protection at [4], and yet was not considered.
(iii) The following statements clearly demonstrate that the assessor failed to consider this claim:
[11]: “On the evidence, after the applicant's release from detention in 1999, he was not subject to any reporting conditions, questioning or any problems from authorities between his 1999 release and 2007 departure for Iraq ... Given the applicant's release and that the authorities did not seek to question or detain him again . . . I am satisfied that the applicant was not of adverse interest to the authorities…”
[17]: “However on the evidence, the only incident of physical harm against the applicant was that of his 1999 arrest and the harassment against the applicant in these instances did not otherwise amount to a level of serious or significant harm.”
(iv) Consideration of the above claim is material to the assessor's conclusion that the authorities did not suspect that the applicant was an LTTE member or supporter, or that he would he would be suspected as such on return to Sri Lanka ([41]).
I have before me as evidence the court book filed on 2 November 2016.
Both the applicant and the Minister made pre-hearing submissions in writing and made oral submissions at the trial of the matter on 3 March 2017.
Consideration
I prefer the Minister’s submissions in relation to the grounds of review and have some additional reasons for rejecting those grounds. The grounds are, to a significant extent, interrelated and I have considered the claims collectively in relation to the extortion issue.
Ground 1 – did the Authority err in assessing the risk to the applicant arising from his familial links with his sister who was a ranking member of the LTTE?
I accept that a person’s risk profile will be increased where the person has close family links to the LTTE and, in a particular case, a decision maker may fall into error in failing to deal with that risk profile[30]. This is, however, not that case.
[30] Minister for Immigration v SZQPA [2012] FCA 1025
This ground contends that the Authority erred by “failing to undertake a quantitative assessment” of the “specifics of the applicant's case” in relation to his family's LTTE connections. The particulars identify aspects of the applicant's claims that were accepted and complains that the Authority nevertheless found that there was no real chance of harm in the future.
The Authority carried out an assessment of the applicant’s risk profile by reference to his relationship with his dead sister at [21] where the Authority said[31]:
I accept that the applicant and other Tamils in his area were harmed during the war and subsequently.[32] I accept the applicant was arrested in 1999 on suspicion of LTTE involvement stemming from his Tamil ethnicity and the fact that he came from Batticaloa in the Eastern Province. While I have accepted local police and SLA members became aware of the applicant’s sister’s LTTE involvement and took advantage of this information and the fact that he had recently returned from working abroad to extort him, I found that this was the result of opportunistic behaviour from corrupt officials and that if they had wanted to locate and harm him after he failed to pay they could have done so. I found that the discrimination against his family did not amount to serious harm and that while he was harassed by authorities and was of some interest to them during the period claimed, he was not considered by the authorities to be an LTTE member or supporter and nor did this harassment amount to serious harm. For the reasons below I am also not satisfied that the applicant would be subject to serious harm in the reasonably foreseeable future upon return.
[31] CB 216
[32] DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 3.4, 2.5
After referring to the improved circumstances in Sri Lanka since the end of the civil war and the election of the Sirisena government, the Authority continued at [26][33]:
The applicant maintains that even though his sister died in 2000, his family still did not receive the same help others in the area received. While I have not accepted this amounted to serious harm, I note DFAT acknowledges that there is a moderate level of societal discrimination resulting largely from the conflict.[34] TamilNet has report on renewed compulsory registration for Tamil households in Batticaloa[35] and in June 2015 the United States State Department also reported that Tamil males especially in the North and East continue to face discrimination and harassment[36] and I accept this may be continuing to some extent. However country information indicates there have been significant positive developments for Tamils in the country’s politics and that the situation has generally improved, including through a decrease of monitoring and harassment in the Eastern Province. Country information does not indicate that there is discrimination or harassment of a level amounting to serious harm.
[33] CB 217
[34] DFAT, “DFAT Country Information Report Sri Lanka”, 18 December 2015, CISEC96CF14143 at 3.3
[35] TamilNet, “Colombo resumes surveillance of Eezham Tamils through ‘registration’ in Batticaloa”, 5 March 2016, CIS38A8012891
[36] US Department of State, “Human Rights Report 2014 Sri Lanka”, 25 June 2015, OG2B06FAF8;
It was open to the Authority to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. The Authority’s findings were not ones at which “no rational or logical decision maker could arrive on the same evidence”[37]. Nor did the Tribunal's reasons lack an “evident and intelligible justification”[38].
[37] Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at 667–8 [130]
[38] Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at 367 [76]
Grounds 2, 3 and 4 – did the Authority err in dealing with the extortion threat claim?
These grounds contend that the Authority erred by assuming that threats and extortion cannot amount to serious harm and that there was no Convention nexus to the extortion.
The Authority accepted that the Sri Lankan authorities “knew of his work abroad” and “used their knowledge” of his sister's LTTE involvement to commit extortion[39]. However, the Authority concluded that this was the result of “opportunistic corrupt behaviour” which did not amount to serious or significant harm[40]. Further, at [15][41] the Authority found that the threats against the applicant were “empty threats” as they had not been “carried through”[42]. The Authority did not presuppose that threats and extortion “cannot amount to serious harm”. Rather, the Authority considered the applicant's claims and circumstances and concluded that his experiences did not amount to, nor give rise to a risk of, serious harm[43]. These findings were open to the Authority for the reasons it gave.
[39] CB 214, 217: [12], [27]
[40] CB 214: [15]
[41] CB 214
[42] CB 214: [12], [15]
[43] CB 214, 217: [12], [15], [27]
Further, the Authority’s reasons should not be read as including a finding that there was no Convention nexus with the applicant’s claim of extortion. The Authority did not refer in its reasons to whether or not there was a Convention nexus. Given that the Authority accepted at [15] that corrupt local officials used the applicant’s sister’s LTTE martyrdom to extort the applicant, a Convention nexus can be assumed. The Authority found that the extortion was opportunistic criminal activity but, as I pointed out in BMQ16 v Minister for Immigration & Anor[44] there may be multiple reasons for extortion and ethnicity or family connection to the LTTE may identify an individual as a target for extortion. In the present case it was probably a combination of perceived wealth and the applicant’s sister’s involvement with the LTTE. In my view, the Authority proceeded on the unspoken assumption that a Convention nexus existed.
[44] [2017] FCCA 150 at [61]
There is more force in the applicant’s contention that the Authority erred by limiting itself to a consideration of whether the extortion resulted in physical harm, rather than whether the extortion itself amounted to serious or significant harm. The Authority’s reasons at [15] do focus on the issue of physical harm. However, those reasons have to be read in context. The Authority went on to find at [27] that the extortion attempts ended with the applicant’s departure from Sri Lanka. At [28] the Authority reasoned that the risk of extortion had declined under the Sirisena government and that state protection would not be refused on the basis of religion or ethnicity. At [41] the Authority concluded that, while corrupt officials had used the applicant’s sister’s LTTE activity against him, it was not satisfied that he was subject to serious harm or that he would face a risk of such harm on return. Further, at [48] in relation to its complementary protection assessment, the Authority said[45]:
Having regard to the extortion specifically, I have accepted the applicant was threatened when he failed to pay. However on the evidence, I am not satisfied that this amounted to significant harm and while I note he went into hiding, I found that he could have been located by his extortionists if they wanted to find him. I am satisfied that the extortion experienced by the applicant was opportunistic targeted by corrupt individuals and that the authorities did not consider the applicant to be an LTTE member or supporter on the basis of his sister’s LTTE involvement or his work in Iraq. I note that the applicant would again be returning from abroad and that he may have worked during his time in Australia, however country information cited above does not support that persons who have worked overseas are targeted for extortion (or otherwise harmed) by any group in Sri Lanka with such frequency that the applicant would be at risk. Given this and that country information also indicates an improved situation for Tamils in the Eastern Province, I do not accept that the applicant faces a real risk of significant harm through extortion upon return.
[45] CB 221
In my view, on a fair reading of the reasons as a whole, the Authority found that the extortion of the applicant in the past did not amount to serious or significant harm (whether in relation to physical harm or otherwise) and that his risk profile had decreased markedly since he left Sri Lanka.
I find that the Authority did not err in considering the applicant’s extortion claim.
Ground 5 – did the Authority fail to deal with the applicant’s claim of being arrested, detained and beaten in 2006?
This ground contends that the Authority failed to consider the applicant's claim to have been arrested and detained in 2006. In the applicant's statement he claimed that[46]:
[46] CB 63: [9]
Prior to departing Sri Lanka in June 2006, I was arrested while in Colombo by the CID.
Further, in its summary of the applicant's claims, the Authority notes that the applicant claimed to have been arrested and detained in 2006[47]. While this claim is not subsequently addressed by the Authority, the issue is resolved by reference to the delegate's decision. The delegate's decision record notes that the applicant “provided different dates” in relation to when his arrest and detention occurred but ultimately clarified that it occurred in 1999[48]. In these circumstances, I accept the Minister’s submission that the Authority addressed the case sought to be made out by the applicant[49].
[47] CB 212: [4.4]
[48] CB 170: [11]
[49] Randhawa v Minister for Immigration (1994) 52 FCR 437; [1994] FCA 1253 at 443 [17]
I find that the Authority accepted the applicant’s claim at [9] of its reasons where the Authority stated[50]:
I accept the applicant was arrested by the CID at a checkpoint in 1999, interrogated, beaten and detained for three days on suspicion of being an LTTE member because they identified him as originating from an LTTE controlled area. I accept that throughout the course of this interrogation and detention the applicant was repeatedly asked if he was an LTTE member however he confirmed at the SHEV interview that he was not questioned about his LTTE member sister. I am satisfied that at that time in 1999 the authorities had not identified this familial link.
[50] CB 213
While the Authority did not deal with the matter as clearly as it could have, the above paragraph should be read as a finding that the relevant events occurred in 1999 rather than in 2006 (or 1996) as the applicant had previously claimed.
Conclusion
I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 5 April 2017
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