CVZ17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 481

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CVZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 481

File number(s):

SYG 2026 of 2017

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

21 June 2022

Catchwords:

MIGRATION – Immigration Assessment Authority – Protection visa – whether the Authority failed to take into account relevant country information.

Legislation:

Migration Act 1958 (Cth) ss 36, 473DC, 473DD

Cases cited:

AYC18 v Minister for Immigration (No 2) [2020] FCCA 1637

BDI17 v Minister for Immigration [2018] FCCA 216

BHX18 v Minister for Home Affairs [2018] FCCA 3498

BND18 v Minister for Immigration [2019] FCCA 2218

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641

Division:

Division 2 General Federal Law

Number of paragraphs:

52

Date of last submission/s:

14 June 2022

Date of hearing:

14 June 2022

Place:

Parramatta

Counsel for the Applicant:

Mr Foster

Counsel for the First Respondent:

Mr McDonald-Norman

ORDERS

SYG 2026 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CVZ17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZEMSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	21 JUNE 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application is dismissed.

3.The Applicant pay the First Respondent’s costs fixed in the sum of $7206.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a Tamil male who is now in his early 30’s. The applicant arrived in Australia on 17 August 2012 as an unauthorised maritime arrival. On 14 September 2014, the applicant applied for a Safe Haven Enterprise (Protection) visa (“Protection visa”).

2. On 19 October 2017, a delegate of the Minister for Immigration (“a delegate”) refused to grant the applicant a Protection visa. The matter was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 2 June 2017, the Authority affirmed the decision to refuse the applicant a Protection visa.

3. The applicant now seeks judicial review of the Authority’s decision.

   THE AUTHORITY’S DECISION

4. Paragraphs 3 to 9 of the Authority’s decision outline the consideration of new information provided by the applicant to the Authority. The Authority found exceptional circumstances to admit a United Kingdom Home Office Report “Country Information and Guidance – Sri Lanka” of August 2016 and a UK Home Office “Country Policy and Information Note – Sri Lanka: Tamil Separatism”, March 2017. At paragraph 4 of the decision record the Authority stated:

   I find that the use of current country information is critical in assessing the chance of harm befalling an applicant for protection. As such I find there are exceptional circumstances which justify the consideration of the August 2016 and March 2017 UK Home Office Reports: s.473DD.

5. At paragraph 6 of the decision record, the Authority also considered a Human Rights Watch report on events in Sri Lanka in 2015. Other information was rejected.

6. At paragraph 11 of the decision record, the Authority sets out in detail the applicant’s claims for protection, which include that he came from a previously Liberation Tamil Tigers Eelam (“LTTE”) controlled area, was approached to join the Karuna group, was suspected of being an LTTE Cadre as he came from an LTTE controlled area, and was threatened to be killed by armed men if they did not join their groups. The applicant also fears harm from Sri Lankan Authorities due to imputed LTTE links and because he fled Sri Lanka illegally.

7. The applicant stated that he cannot live elsewhere in Sri Lanka as he has no family or support outside his home area.

8. At paragraph 14 of the decision record, the Authority accepted the applicant’s identity and that he was a national Sri Lanka.  At paragraph 15 of the decision record, the Authority accepted the applicant was perceived in 2007 by authorities as having links to the LTTE.  Country information before the delegate indicates that all Tamils from areas previously controlled by the LTTE were regarded this way.

9. At paragraph 17 of the decision record, the Authority accepted that the applicant’s family fled their home and relocated to a refugee/Internally Displaced People (“IDP”) camp when the Sri Lankan army took control of the Batticaloa district in January 2007 and that they lived in the camp for  approximately three months.  The Authority accepted that, as a young Tamil male of approximately 17 years of age at the time, the applicant was interrogated by the Sri Lankan Army (“SLA”), the police and the Criminal Investigation Department (“CID”) about his links with the LTTE and was subjected to forced labour while in the camp.  The applicant’s evidence at all times until his SHEV interview was that he was not beaten, tortured, arrested or charged and the family left the camp after three months.

10. The Authority accepted at paragraph 18 of its decision that after leaving the camp, the applicant was taken from his grandmother’s house in a white van and interrogated about his links to the LTTE and his knowledge of specific LTTE cadre.  The applicant stated that he was released after approximately three hours.  The Authority also accepted that the applicant was interrogated by Sri Lankan police and CID about his links to the LTTE.  This occurred because the applicant lived in an area that was previously controlled by the LTTE.  Again, the applicant’s evidence, in his written statement of claims, was that he was not physically harmed during these interrogations. At his SHEV interview, the applicant initially confirmed the evidence in his written statements of claims that it was not physically claimed, however later in the interview he claimed he was tortured by the CID and Sri Lankan army.  The Authority did not accept the applicant’s claims of torture by the police or CID or any other group in Sri Lanka.

11. At paragraph 20 of the decision record, the Authority concluded that the applicant had always been released by authorities after relatively brief period after being detained and interrogated.  On his evidence, the applicant had never been arrested or charged with any offence or required to report to police or the military regularly.

12. Paragraphs 22 through to 27 of the Authority’s decision are a review of relevant country information which included the reports outlined above.  The Authority concluded at paragraph 22 that neither the applicant nor his family were imputed to have links with the LTTE, and that they had not been involved in any activity aimed at Tamil separatism.  The Authority was also satisfied the applicant’s father was not an LTTE member or imputed to be an LTTE member or advocate of Tamil separatism.  The Authority did not accept the applicant’s claims that the authorities were searching for him when he departed Sri Lanka.

13. At paragraph 29 of the decision record, the Authority accepted the applicant’s claims that his brothers have left Sri Lanka; that one brother obtained protection in Australia in 2009 and is now an Australian citizen; and that his other two brothers are asylum seekers in two separate countries.  The Authority did not accept the applicant’s claim that his brothers, who fled overseas more recently, did so because authorities were searching for the applicant.

14. At paragraph 30 of the decision record, after assessing all of the evidence, the Authority was satisfied, given the applicant’s profile, on the available country information reports, the chance of him facing harm now and in the foreseeable future because of imputed links with the LTTE, was very remote. The applicant’s fears of persecution in this regard were not well-founded.

15. Paragraphs 31 to 38 of the Authority’s decision deal with the question of whether the applicant faces a real chance of harm from paramilitary groups.  The applicant gave evidence that paramilitary groups, particularly the Karuna group, searched for the applicant on a number of occasions.  From 2010 to 2012, the applicant claims paramilitary soldiers threatened the applicant and his father that if they did not join the group there would be serious consequences.  The applicant claimed that in March 2012, there was a threat to kill him if he did not join the group.

16. At paragraph 33 of the decision record, the Authority found the applicant’s evidence regarding these claims at his SHEV interview was vague and unconvincing.  The Authority found that the applicant’s claims to have been pressured to join paramilitary groups had been greatly exaggerated, however based on country information, the Authority was prepared to give the applicant the benefit of the doubt and accept that he was pressured to join with and support the Tamil Makkal Viduthalai Pulikal (“TMVP”) and that this pressure included threats of harm if he did not do so.  The Authority did not accept however that the pressure and threats occurred as frequently as claimed by the applicant.  The Authority did not accept the applicant’s change of address was necessitated by threats of harm from paramilitary groups and that he was not “in hiding” as claimed.

17. In assessing the chance of the applicant facing harm now or in the foreseeable future, the Authority noted that in the five years from 2007 until 2012, when the applicant left Sri Lanka, the applicant was not harmed or killed.  The Authority also noted the applicant’s father has not been harmed or killed, remains living at the family address and continues to work in his shop as a goldsmith.  The Authority considered country information which indicated that the two main paramilitary groups had reportedly run such activities and that the TMVP is now a recognised political party.

18. At paragraphs 37 and 38 of the decision record, the Authority assessed the relevant evidence and was satisfied the chance of the applicant being subjected to harm by paramilitary groups now and in the foreseeable future was not well-founded.

19. Paragraphs 39 to 45 of the decision record deal with the chance of harm due to the applicant and his father actively supporting the Tamil National Alliance (“TNA”).  The applicant claimed he and his father were long-time supporters of the TNA.  This included door knocking, distributing leaflets and posting TNA posters during the 2010 election.  At the SHEV interview, the applicant clarified his involvement in politics and in supporting the TNA was limited to approximately three months. It was the applicant’s support for the TNA that contributed to him being pressured by the Karuna group and the TMVP.

20. At his SHEV interview, the Authority assessed that the applicant was not able to speak with any detailed knowledge of the TNA and its policies. The applicant clarified that he had not had any interest in Sri Lankan politics since arriving in Australia in 2012.

21. At paragraph 41 of the decision record, the Authority noted that the applicant’s claim of having actively supported the TNA was limited to a three-month period.  The Authority considered the applicant’s evidence that he was “in hiding” from paramilitary groups at this time and found his involvement in actively and publicly supporting the TNA was inconsistent with his claim to be “in hiding”.  This claim undermined his credibility as a witness of truth.  The applicant’s lack of knowledge of TNA policies and complete lack of interest in Sri Lankan politics since arriving in Australia also undermined his claim to have been an active supporter of the TNA in 2010.

22. The Authority noted country information, which included the election of a new President, Sirenesa, in 2015, also resulted in the TNA having a majority of seats on the Northern Provincial Council.  The Authority noted the applicant’s claim that he joined the Australian Labour Party New South Wales, but that he was unable to name the ALP politician he supported in Parramatta.  The Authority was not satisfied that the applicant’s involvement with the ALP was not indicative of him being a politically minded person such that it was inevitable he would become involved in politics now and in the foreseeable future in Sri Lanka.  The Authority was not satisfied that there was a real chance of the applicant being harmed now or in the field foreseeable future because of his support for a political party and his fears of persecution for reasons of his political opinion were not well-founded.

23. Paragraphs 46 through to 53 of the Authority’s decision deal with fears of a chance of harm as a failed Tamil asylum seeker who departed Sri Lanka illegally.  The Authority found the applicant would be detained on return to Sri Lanka, possibly overnight, charged with illegally leaving Sri Lanka, placed before a Magistrate and would receive a monetary penalty in a relatively small amount.

24. Having considered the applicant’s individual claims and on a cumulative basis, the Authority was not satisfied the applicant would face a real chance of harm and that he did not meet the refugee criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). The Authority also found that the applicant did not meet the complimentary protection requirements under s 36(2)(aa) of the Act for the same reasons.  Accordingly, the Authority affirmed the decision not to grant the applicant a Protection visa.

    GROUNDS OF JUDICIAL REVIEW

25. The grounds of judicial review relied upon are contained in an amended Initiating Application file with the Court on 10 May 2022. They are as follows:

    1.   Not Pressed.

    2.   The IAA failed to take into account the relevant country information contained in the DFAT report dated 24 January 2017.

    Particulars

    i.The IAA relied upon material in the DFAT 2015 report, but not the 2017 report;

    ii.Country information relevant to the decision in the 2017 report in issue which was not in the 2015 report, included:

    a.Discussion of the LTTE including the UNHCR publication [pages 15-16];

    b.Discussion of imputed membership of the LTTE [pages 16-18];

    iii.The IAA accepted the Applicant was perceived by the Sri Lankan authorities during the civil war to have links with the LTTE [CB206].

    iv.The applicant claimed he had lived in LTTE controlled areas since his birth [CB70];

    v.The IAA mentioned material concerning the UNHCR publication at [CB208] but did not refer to the material contained in the 2017 report’s discussions (pages 16-18);

    vi.The IAA did not address the possibility the Applicant may require international refugee protection due to perceived links with the LTTE, as stated at Cl 3.32 [page 16] of the 2017 report, he having lived in LTTE controlled areas since his birth [CB70];

    vii.Accordingly, the IAA failed to take into account relevant country information contained in the DFAT report dated 24 January 2017, and came to an unreasonable decision thereby committing jurisdictional error.   

    THE APPLICANT’S SUBMISSIONS

26. Given that ground one was not pressed, the applicant’s written submissions were relatively short.  It was submitted that the 2017 DFAT report was available to the Authority and was relevant to the decision.  The 2017 report provided more up-to-date information concerning the situation Sri Lanka.

27. The 2017 report contained, in particular, discussions concerning the LTTE and the UNHCR report.  It was submitted that the issue for the applicant was whether or not there was a real chance that he would face persecution because of his prior perceived relationship with the LTTE.  The UNHCR report noted “a person is real or perceived links with the LTTE may give rise to a need for international refugee protection”.

28. Whilst the Authority mentioned the UNHCR report, the Authority referred to another portion of the report instead, stating “simply being a Tamil does not of itself give rise to will find it fear of persecution a serious harm in Sri Lanka”, yet did not consider the applicant’s claim of needing protection due to links with the LTTE, having lived in LTTE controlled areas since his birth. 

29. During the course of oral submissions, Counsel for the applicant agreed that the Authority found that the applicant was not a high level supporter of the LTTE.  It was further conceded that in terms of the DFAT 2017 report, the additional information contained for most part had been cut and pasted from the UNHCR report that had been taken into consideration by the Authority.  It was submitted that the real gravamen of the complaint was a failure by the Authority to consider whether or not the applicant was at risk because he came from previously controlled LTTE area and that he had been interrogated and questioned previously.

    THE FIRST RESPONDENT’S SUBMISSIONS

30. The first respondent noted that the following information was before the Authority on its review of the delegate’s decision:

    a.   DFAT Thematic report – People with links to the Liberation Tigers of Tamil Eelam, a report dated 3 October 2014 (Thematic Report; CB 172-186);

    b.   DFAT Country Report – Sri Lanka, a report dated 16 February 2015 (February 2015 Report CB 146-171);

    c. DFAT Country Report – Sri Lanka a report dated 18 December 2015 (December 2015 report: Annexure B to the Affidavit of Andrew Thay 26 May 2022 Ex 2 in the proceedings).

31. The fourth report, a DFAT report dated 24 January 2017, was published after the delegate’s decision, but before the Authority’s decision.

32. In relation to ground two, the applicant alleges the Authority failed to take into account relevant country information in the DFAT 2017 report.  In particular, it is alleged the 2017 report “provided more up-to-date information concerning the situation Sri Lanka in the 2015 report” including “discussions” of the LTTE and the UNHCR report.

33. It was submitted that there are two reasons why this ground fails.  First, the applicant has not established that the 2017 report was before the Authority on its review of the delegate’s decision regarding the applicant.  Secondly, the applicant has not identified or relied upon any difference between the December 2015 report and the 2017 report which would have rendered it unreasonable for the Authority not to “seek” or “consider seeking” that report, or which would otherwise give rise to jurisdictional error.

34. The delegate’s decision was dated 19 October 2016, hence the 2017 report was ‘new information’ for the purposes of ss 473DC and 473DD of the Act. The 2017 report was not one of the forms of new information identified and addressed by the Authority at paragraphs 4 to 10 of its decision record. In particular, it was not one of the new country information reports identified by the Authority at paragraph 4. At no stage did the Authority expressly find the 2017 report satisfied s 473DD of the Act and hence, it was able to consider that report.

35. The applicant contends that the 2017 report was “available” to the Authority at the time of its decision. But, there is nothing in the Authority’s decision to indicate that the 2017 report formed part of the material evidence before it in its review of the delegate’s decision to refuse the protection visa application.  The applicant’s ground as pleaded is misconceived, the Authority did not err by failing to consider evidence that was not in fact before it on review.

1. Further, the Authority did not fall into error or did not commit any material error by failing to seek (or failing to consider seeking) a copy of the 2017 report as part of its review of the delegates decision.

2. In some circumstances may be unreasonable for the Authority not to seek, or consider seeking, the most recent DFAT country information report regarding an applicant’s country of reference: (see; BDI17 v Minister for Immigration [2018] FCCA 2162 at [70] – [72]; BND18 v Minister for Immigration [2019] FCCA 2218 at [49]). The decision as to whether it would be unreasonable for the Authority not to seek such report, depends, in part upon whether the updated DFAT report differs in its conclusions from a previous DFAT report: (see; BHX18 v Minister for Home Affairs [2018] FCCA 3498 at [52], [78](c) and [81]). Further, it is not necessarily an error for the Authority to rely on old DFAT report where the old report is not contradicted or rendered unreliable by the new report: (see; AYC18 v Minister for Immigration (No 2) [2020] FCCA 1637 at [103], [107]).

3. The Authority’s reasons for its decision does not expressly state that it considered seeking the 2017 report. However that does not, of itself, support an inference that the Authority did not consider exercising that discretion, because the Authority is not required to record in its reasons whether it has considered exercising a procedural discretion: (see; CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [42]).

4. The onus is on the applicant to establish that the Authority did not consider exercising its discretion to seek the 2017 report, and the applicant has not discharge that onus.

   CONSIDERATION

5. The Court accepts that the Tribunal did not have the 2017 DFAT report before it for consideration.  The comment of the reviewer at paragraph 4 of the Authority’s decision record, “I find that the use of current country information is critical in assessing the chance of harm befalling an applicant for protection”.  It was on this basis that the Authority determined there were exceptional circumstances to justify the consideration of the August 2016 and March 2017 Home Office Reports.  The parties agreed during the course of oral submissions that the appropriate inference in this case was that the Authority was simply not aware, as at the time of its decision, of the updated 2017 DFAT report.  Had it been so aware, given the comments quoted above, there seems little doubt that the Authority would have accepted the 2017 report as new information.

6. The question however, is not whether the report would have been received had the Authority been aware of it, rather, in the current circumstances not receiving the report constitutes jurisdictional error.  In the Court’s view, in the circumstances of this case, it does not.

7. Counsel for the first respondent helpfully provided at the back of his written submissions, a table which compared the 2017 DFAT report to the previous 2015 DFAT report that was considered by the Authority.  The differences between the two reports are relatively minor.  As noted by Counsel for the applicant, the UNHCR report appears to have been cut and pasted into the 2017 DFAT report.  Any changes, appear to be more advantageous to the applicant, in terms of a lessening of the risk that he faced upon return due to the expiration of time, since the end of the war and the election of the Sirenesa Government in Sri Lanka.

8. For example, at paragraph 3.31 of the 2017 report, the following appears:

   DAFT assesses that the LTTE no longer exists as an organised force in Sri Lanka.  Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad.  DFAT further assesses that there has been an overall decrease in monitoring in the north and east. Under Sirenesa, the Sri Lankan government has demonstrated a commitment to easing restrictions… However high-profile individuals with links to the LTTE would continue to be of interest to Sri Lanka authorities and may be subject monitoring.

9. The 2017 report notes at paragraph 3.41 that many thousands of LTTE members had been arrested and detained in rehabilitation centres.  “Generally this includes former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict.”  At paragraphs 3.54 to 3.55, the 2017 Report indicates a reduced number of former LTTE cadres in custody.

10. The Authority comprehensively dealt with the chance of real harm due to an imputed link by the applicant as a member or supporter of the LTTE because he came from the north.  For example, at paragraph 15 of the decision record, the Authority accepts that because the applicant was from the north, he would have been perceived at that time by Sri Lankan authorities to have links with the LTTE.  All Tamils from areas previously controlled by the LTTE were regarded in this way.

11. At paragraph 18 of the decision record, the Authority accepted that the applicant was interrogated by Sri Lankan police and CID about links with the LTTE and that this occurred because he lived in an area that was previously controlled by the LTTE.

12. The Authority, however, noted the paragraph 21 of the decision record that the applicant had not been arrested and held by authorities nor had this happened to his father, who had remained in Sri Lanka.  The Authority concluded that this indicated that the Sri Lankan authorities did not suspect the applicant’s or his father as being members or active supporters of the LTTE, irrespective of them being Tamils from the northern areas previously controlled by the LTTE.

13. Again, at paragraph 25 of the decision record, the Authority noted the conclusion of the UK Home Office that “simply being a Tamil does not of itself give rise to a well-founded fear of persecution or serious harm in Sri Lanka.’.

14. At paragraph 28 of the decision record, the Authority found that it was not satisfied that the applicant had ever been and was not imputed to be an LTTE member, or involved in any activity supportive of Tamil separatism.  The Authority also found that the applicant’s father was not an LTTE member or imputed to be an LTTE member.  The Authority did not accept the applicant’s claim that the authorities were searching for him when he departed Sri Lanka.

15. The Court is satisfied that the Authority comprehensively dealt with the risk to the applicant on return of being a Tamil male from the North.  Based on all of the information, the Authority was satisfied that this did not of itself pose a risk of serious harm.  A fair reading of the entirety of the Authority’s reasons, indicate that this claim was noted, considered and addressed with the conclusion that as a result of being a Tamil male from previously controlled LTTE area, he was not at risk on return.

16. There is nothing contained in the 2017 DFAT report which would have made a material difference to the consideration of the applicant’s claims by the Authority.  In these circumstances, a failure to consider the report cannot give rise to legal unreasonableness.

    CONCLUSION

17. Ground two reveals no jurisdictional error.  The application is dismissed.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       21 June 2022