CWH17 v Minister for Immigration and Anor

[2020] FCCA 1244

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWH17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1244

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 part and other fears found not to be well-founded – whether the Authority dealt properly with all of the applicant’s claims considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 36

Cases cited:

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

WZAVW v Minister for Immigration [2016] FCA 760

Applicant: CWH17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2038 of 2017

Judgment of: Judge Driver

Hearing date: 19 May 2020

Delivered at: Sydney

Delivered on: 19 May 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Mr E Taylor of Mills Oakley by telephone

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application lodged on 28 June 2017 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2038 of 2017

CWH17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  A decision was made on 9 June 2017.  The Authority affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions. 

2. The applicant is a male citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 10 October 2012.[1]  He participated in an entry interview on 24 October 2012 in which he made brief claims to fear harm in Sri Lanka from the Criminal Investigation Department (CID).[2]

   [1] Court Book (CB) 108

   [2] CB 1-19

3. The applicant applied for a Safe Haven Enterprise Visa (SHEV) on 11 May 2016.[3] Accompanying his SHEV application was a statement by the applicant dated 11 May 2016.[4]

   [3] CB 26-62

   [4] CB 63-68

4. In that statement, the applicant claimed that in about 1985, he was shot in the leg while escaping conflict. Around October 2007, the applicant’s nephew was forcibly taken by the Liberation Tigers of Tamil Eelam (LTTE).[5]

   [5] CB 64

5. The applicant claimed the CID considered he was responsible for his nephew and was hiding or working with his nephew. The CID would come to the applicant’s home every week and threaten him. He fled Sri Lanka in around February 2008 and travelled to Thailand, but returned to Sri Lanka around March 2008. The CID continued to come to the applicant’s home and interrogate him.[6]

   [6] CB 65

6. The applicant claimed that he was an “influential figure in his community” and was approached by the Karuna Group and asked for his support in relation to an election to be held on 8 September 2012. He claimed the Karuna Group threatened him with physical harm if he did not support them. However, the applicant did not support the Karuna Group and instead supported the Tamil National Alliance (TNA) by speaking publicly on its behalf and encouraging support from others. After the TNA won the election, the applicant claimed he immediately went into hiding and decided to flee Sri Lanka two weeks later as he feared the Karuna Group would take revenge.[7]

   [7] CB 66

7. On 25 October 2016, the applicant attended an interview with the delegate (the SHEV interview).[8]

   [8] CB 110.6

8. On 4 November 2016, the delegate refused the application for a SHEV.[9] The delegate accepted that the applicant was a Tamil, was injured in 1985, that his nephew was forcibly recruited by the LTTE, and that the applicant was harassed by the CID.[10] On the basis of inconsistent evidence, the delegate found that the applicant did not speak publicly on behalf of the TNA or play a lead role in its electoral campaign.[11]  The delegate relied on independent country information and found the applicant would not face harm in Sri Lanka due to his accepted profile.[12]

   [9] CB 108-125

   [10] CB 114.8

   [11] CB 113.5

   [12] CB 115-121

The Authority

1. The matter was referred to the Authority on 9 November 2016.[13]

   [13] CB 127-128

2. On 23 November 2016, the applicant provided an email containing brief submissions[14] and attaching a social worker’s report dated 13 November 2016,[15] and a doctor’s letter dated 10 November 2016.[16] The submission referred to a news article from the Colombo Telegraph.[17]

   [14] CB 136-137

   [15] Supplementary Court Book 1-2

   [16] CB 138-139

   [17] CB 140

The Authority’s decision

1. On 9 June 2017, the Authority affirmed the delegate’s decision not to grant the applicant a SHEV.[18]

   [18] CB 151-168

2. The Authority considered the applicant’s email of 23 November 2016 and its attachments, and found that the part of the email submission which comprised argument in response to the delegate’s decision was not new information.[19]

   [19] CB 152, [4]

3. The Authority found that the social worker’s report dated 13 November 2016 and doctor’s letter dated 10 November 2016 post-dated the delegate’s decision and accordingly could not have been provided to the delegate. The Authority found that these documents provided updated information concerning the applicant’s health, and found that there were exceptional circumstances to justify their consideration pursuant to s.473DD of the Migration Act 1958 (Cth) (Migration Act).[20]

   [20] CB 152, [6]

4. The Authority found that the Colombo Telegraph news article post-dated the delegate’s decision and accordingly could not have been provided to the delegate. The Authority found the article was relevant to the applicant’s claims, and found that there were exceptional circumstances to justify its consideration.[21]

   [21] CB 152, [7]

5. The Authority referred to new information it had obtained, namely a Department of Foreign Affairs and Trade (DFAT) country information report on Sri Lanka dated 24 January 2017, and found there were exceptional circumstances to justify its consideration because it updated a 2015 report on which the delegate relied.[22]

   [22] CB 153, [8]

6. The Authority considered the applicant’s claims and evidence.[23]

   [23] CB 152, [9]; CB 14-155, [12]-[19]

7. The Authority accepted that the applicant was a Tamil male from Batticaloa District in the east of Sri Lanka.[24]  The Authority also accepted that the applicant sustained a gun shot injury to his leg in 1985, but found he did not face a real chance of serious harm in Sri Lanka on this basis because: he had not specifically claimed to fear future harm on account of this incident; independent country information indicated many civilians had sustained injuries from the conflict; and there was no evidence to indicate that the applicant would come to the adverse attention of the authorities or any other group for this reason.[25]

   [24] CB 154, [12]

   [25] CB 155, [21]

8. The Authority accepted that the applicant’s nephew was forcibly recruited by the LTTE in October 2007,[26] but found the applicant’s evidence that he came to the adverse attention of the CID after this event was “unconvincing” and contained a number of identified inconsistencies that undermined his credibility.[27]

   [26] CB 155, [22]

   [27] CB 156, [23]-[26]

9. The Authority accepted that the applicant had made an application for protection in Thailand in February 2008 but found that, other than the applicant’s oral evidence that he fled Sri Lanka because of harassment by the CID and his imputed LTTE links, there was no other evidence of the claims he advanced to the Thai authorities at that time. The Authority also had regard to three letters of support the applicant had submitted and found they all indicated that the applicant left Sri Lanka in 2008 for reasons different to those claimed in his SHEV application.[28] The Authority further noted that the applicant travelled back to Sri Lanka in 2008 without difficulty and was able to obtain a new passport in 2011 in Colombo, which indicated he was not a person of interest to the authorities at that time.[29]

   [28] CB 156, [27]

   [29] CB 156-157, [28]

10. On the basis of the inconsistencies it identified, the Authority found that the applicant “was not recalling a genuine personal experience” and the letters he submitted did not support his claims to be of adverse interest to the authorities in 2008. Given his ability to travel freely in and out of Sri Lanka at a time of conflict and when he claimed to have an LTTE profile and to obtain a new passport in 2011, the Authority did not accept the applicant was of interest to the CID, the Sri Lankan Army or other Sri Lankan authorities for any of the reasons he claimed, including his nephew’s involvement with the LTTE. The Authority also rejected the applicant’s claims that the CID continued to look for him and his children received threats after he departed Sri Lanka.[30]

    [30] CB 157, [29]

11. Despite inconsistencies between the letters of support submitted by the applicant and his SHEV application, the Authority accepted that an unknown militant group for unknown reasons attempted to approach the applicant in or around 2005. However, as there was no evidence to indicate the applicant remained a person of interest to the unknown group, the Authority was not satisfied that he faced a real chance of serious harm on that basis.[31]

    [31] CB 157, [30]

12. The Authority found that the applicant would not face harm on the basis of three distant relatives who were involved with the LTTE, who he spoke about during the SHEV interview. The Authority accepted that the relatives were involved with the LTTE, but found that the applicant did not know anything about their roles and had not advanced any claim in relation to them.[32]

    [32] CB 157, [31]

13. The Authority accepted the applicant was involved in societies and clubs and was well known due to his community involvement. However, the Authority found that his claimed involvement with the TNA, and the threats he received on that basis, were “unconvincing” and inconsistent.[33] The Authority identified four examples of such inconsistencies.[34]

    [33] CB 158, [32]

    [34] CB 158, [33]-[36]

14. The Authority found that a number of the applicant’s documents did not support the claims advanced in his SHEV application.[35] The Authority found that the applicant “was not recalling a genuine personal experience in relation to his involvement with the TNA and the associated threats received from the Karuna Group”. The Authority found the applicant was nothing more than a low level supporter of the TNA and did not accept that: he provided assistance to the TNA in the lead up to the September 2012 elections; he was approached by the Karuna Group to canvass votes or threatened by them in any way; or that he came to the attention of the Karuna Group or any other group due to his support for the TNA. The Authority rejected the applicant’s claim that he went into hiding two weeks after the September 2012 election and prior to his departure from Sri Lanka, given his evidence at the entry interview that he started making arrangements to come to Australia one month before he left Sri Lanka, which was two weeks prior to the election and before he claimed he first received threats from the Karuna Group.[36]

    [35] CB 158, [37]

    [36] CB 158-159, [38]

15. The Authority accepted the applicant was being treated in Australia for unstable angina and post-traumatic stress disorder but was not satisfied that he had a well-founded fear of being unable to obtain relevant medical treatment in Sri Lanka.[37]

    [37] CB 159, [40]

16. The Authority had regard to independent country information that indicated the “overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009”. It considered the applicant’s background including his education and employment history and found that there was no evidence that indicated the applicant would face any barriers to accessing education, employment or government services in Sri Lanka.[38]

    [38] CB 159, [41]

17. The Authority accepted that the applicant may have provided low level assistance to the LTTE but was not satisfied this gave rise to an adverse profile with the Sri Lankan authorities.[39]  Further, the Authority accepted that the applicant may be “at risk of facing societal discrimination on the basis of his Tamil ethnicity” but was not satisfied that would constitute serious harm. It referred to the Colombo Telegraph article provided in the applicant’s email submission dated 23 November 2016, but found the applicant’s circumstances were different to the person the subject of that article.[40] The Authority found that the applicant was not a person who faced a real chance of serious harm because of his Tamil ethnicity, his former place of residence, his support for the TNA or for any actual or imputed LTTE connections, including familial connections.[41]

    [39] CB 160, [44]

    [40] CB 160, [45]

    [41] CB 160, [46]

18. The Authority accepted that if returned to Sri Lanka the applicant would return as a failed asylum seeker and would be identified by the authorities as someone who left illegally.[42] However, the Authority referred to independent country information and found that he did not face a real chance of serious harm due to being a Tamil asylum seeker or a failed asylum seeker returning from either Thailand or Australia.[43]

    [42] CB 160, [47]

    [43] CB 160-161, [48]

19. The Authority found that the applicant might face penalties including fines and imprisonment for departing Sri Lanka illegally.[44] The Authority found that the applicant would be charged and fined under the Sri Lankan Immigrants and Emigrants Act but was not satisfied there was any chance he would be imprisoned.[45]

    [44] CB 161, [51]

    [45] CB 161, [53]

20. The Authority found the applicant did not face a real chance of serious harm due to his illegal departure, travel to Australia or for any other reason.[46] The Authority concluded that the applicant did not meet the requirements of the definition of refugee in s.5H(1) or the requirements of s.36(2)(a) of the Migration Act 1958 (Cth).[47]

    [46] CB 162, [54]

    [47] CB 162, [56]

21. In its complementary protection assessment, the Authority found, on the basis of its previous factual findings, that the applicant did not face a real risk of significant harm in Sri Lanka.[48]

    [48] CB 162-163, [59]

22. The Authority found there was not a real risk that the applicant would face significant harm during any investigation process due to his illegal departure.[49] The Authority found that the applicant might be subjected to poor prison conditions if detained, but found that such conditions did not constitute significant harm.[50] The Authority found that questioning, a fine, a surety or detention, did not amount to significant harm either individually or cumulatively.[51] The Authority found the applicant did not face a real risk of significant harm and did not meet the requirements of s.36(2)(aa) of the Migration Act.[52]

    [49] CB 163, [61]

    [50] CB 163, [62]

    [51] CB 163, [63]

    [52] CB 163, [64]-[65]

The present proceedings

1. These proceedings began with a show cause application filed on 28 June 2017.  There are three grounds in that application:

   1.      IAA made a jurisdictional error or relevance.

   Particulars

   IAA did not consider the requisite Convention nexus with the Convention reason being imputed political opinion as Applicant was connected to LTTE through is cousin.

   2.      IAA fell into a jurisdictional error.

   Particulars

   As a person suspected of LTTE connection Applicant will be harmed by the Sri Lankan authorities.

   3.      IAA fell into a Jurisdictional error.

   Particulars

   IAA did not consider all the claims of the Applicant.       (errors in original)

2. The applicant continues to rely upon those grounds.  The applicant also relies upon a short affidavit filed with his application, which I received.  I also have before me as evidence the court book filed on 18 December 2017, as well as two supplementary court books filed on 11 May 2020 and 18 May 2020.  This matter was originally docketed to Judge Barnes but on 12 May 2019 it was transferred to my docket. 

3. Only the Minister filed pre-hearing submissions in accordance with orders made by a registrar.  I invited oral submissions from the applicant this afternoon.  He appeared somewhat diffident and had difficulty addressing any legal issues.  He told me that he had told the truth to the Minister’s Department and, by extension, to the Authority.  In his submissions in reply the applicant told me that he works and pays taxes in this country.  He stated that he doubted that the Authority understood the full circumstances in Sri Lanka.  He said that specific problems can be found in particular locations and suggested that the Authority should have made further inquiries.  The applicant told me that he planned to register with the International Organization for Migration (IOM). 

4. The applicant’s oral submissions did not advance in any material way the grounds in his application.  Those grounds do not establish any jurisdictional error by the Authority.  Neither is any error apparent to me from my own reading of the material.  I accept the Minister’s submissions concerning the grounds in the application.   

Ground 1

1. Ground one appears to assert that the Authority failed to consider a claim, or an integer of a claim, that the applicant feared harm on the basis of an imputed pro-LTTE political opinion due to his relationship with his cousin.

2. The Authority expressly considered this claim.[53] The Authority accepted that the applicant had three distant relatives (his mother’s cousin’s children) who were involved in the LTTE in some capacity, but found that the applicant would not face adverse attention from the Sri Lankan authorities or was at risk of harm due to these distant familial links.

   [53] CB 157, [31]

3. Accordingly, Ground 1 does not establish any error by the Authority.

Ground 2

1. Ground 2 expresses grievance with the Authority’s factual conclusions that the applicant would not be suspected of having LTTE connections and did not face harm from the Sri Lankan authorities on this basis.

2. The Authority’s factual conclusions in this regard were plainly open to it on the material before it, and it gave cogent reasons for its findings. At its highest, ground two invites the Court to engage in impermissible merits review of the Authority’s decision.[54]

   [54] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Ground 3

1. Ground 3 is a bland assertion that the Authority did not consider all of the applicant’s claims. Its particulars do not identify which claims it asserts were not considered. A failure to particularise a ground of review is a sufficient basis for it to be dismissed.[55] Without any particulars, the allegation in ground three is meaningless and fails to identify an arguable case of jurisdictional error on the part of the Authority. There is no evidence to indicate that the Authority failed to consider any of the applicant’s claims. The Authority’s reasons for reaching its conclusion were findings of fact that were open to it on the available evidence.

   [55] WZAVW v Minister for Immigration [2016] FCA 760 at [35]

2. I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order. 

1. In consequence of the dismissal of the application the Minister seeks an order for costs fixed in the sum of $5,500.  Scale costs in this instance would be $7,467.  I have no difficulty in accepting that the costs claimed have been reasonably and properly incurred.  The applicant told me that he had approached IOM a month ago and had asked for assistance in discontinuing this proceeding.  He had not told me this previously and when I queried it he said that he did not understand what was permitted.  There is no doubt that some costs might have been avoided if the applicant had discontinued his application in a timely way.  Nevertheless, the application has been heard and determined and the Minister should receive his costs.

2. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  22 May 2020