CYN17 v Minister for Immigration

[2018] FCCA 427

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYN17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 427

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority considered the applicant’s situation in the reasonably foreseeable future – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 476

Cases cited:

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Applicant: CYN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2089 of 2017

Judgment of: Judge Street

Hearing date: 20 February 2018

Date of Last Submission: 20 February 2018

Delivered at: Sydney

Delivered on: 20 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

On a direct access basis

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. Grant leave to the applicant rely upon the amended application annexed to the submissions filed on 6 February 2018 and the Court dispenses with the need for the electronic filing of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2089 of 2017

CYN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 8 June 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 2 October 2012. The applicant participated in an entry interview on 24 January 2013. On 5 January 2016, the applicant lodged an application for a Safe Haven Enterprise visa.

3. That application was supported by a statutory declaration by the applicant in which he set out his claims. The applicant alleged that he had been involved in political activities in 2010 and 2012. The applicant alleged he came to the adverse attention of the Tamil Makkal Viduthalai Pulikal (“TMVP”) and Karuna Group as a result of those activities, and that by reason of it being known that he had supported the United National Party (“UNP”). The applicant feared that he would be harmed if he engaged in politics and claimed that he was not able to freely support the political party of his choice. The applicant alleged that it remains dangerous by reason of him being a Tamil, and that he could be abducted and killed. The applicant feared that he would not be protected from Tamil paramilitary groups. The applicant feared that because he departed Sri Lanka illegally, he would be imprisoned for a long period and feared he would be harmed by reason of being a Tamil.

4. On 25 October 2016, a delegate found the applicant failed to meet the criteria for the grant of a protection visa. The delegate made reference to being satisfied that the applicant’s political agenda, was in large part in opposition to the Mahinda Rajapakse Government. The delegate found the applicant’s material claims pertaining to his interactions with the Karuna Group and the TMVP were plausible and consistent with country reports.

5. The delegate accepted that the applicant supported the UNP presidential candidate in 2010, campaigned but did not run as an independent candidate in the 2010 parliamentary elections and ran as an Eeelavar Democratic Front (“EDF”) candidate in the 2012 Eastern Provincial elections. The delegate accepted that the applicant was politically active and campaigned against the then Rajapakse Government.

The Authority’s decision

1. It was in those circumstances that the Authority wrote to the applicant on 1 November 2016, identifying that the application for a protection visa had been referred to the Authority for review. The letter explained there were only limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

Information before the Authority

1. The applicant took advantage of that opportunity and provided a submission dated 18 December 2016 as well as providing seven undated video clips. The Authority in its reasons identified the background to the visa application and having regard to the material under s473CB of the Act. The Authority identified that that part of the submission engaging with the delegate’s decision and findings was not new information and accordingly, the Authority had regard to the same.

2. The Authority then identified new information in relation to the contents of the Committee Against Torture report (“CAT”), published after the date of the delegate’s decision. The substance of that report was explained and identified by the Authority, and in particular the Authority referred to the fact that there was no indication in the applicant’s claims that he was involved with the LTTE, or imputed as having an LTTE profile.

3. The Authority referred to the applicant’s information at the Safe Haven Enterprise visa interview that he had no LTTE links and that he had not been personally beaten, in relation to questions about harassment from authorities. It was in those circumstances that the Authority observed it was not satisfied there is a claim that the applicant was imputed with LTTE involvement or support. The Authority noted the content of the applicant’s statutory declaration was to being a Tamil from the Eastern Province in terms of his inability to relocate and that the applicant did not advance any claim of having an imputed LTTE profile.

4. The Authority referred to the submissions in relation to what it was that had been held by the delegate, and that the delegate had referred to incidents of detention of Tamils in the past and noted that LTTE support at times was imputed on the basis of ethnicity and accepted the imputation was made in the past. The Authority found that the delegate did not make a finding that the applicant was imputed with an LTTE profile. The Authority noted that the delegate recorded the applicant had not submitted any claims to have been a member of the LTTE, or to have provided any supported to the LTTE. The Authority found the delegate’s finding supports that the applicant did not have a profile of interest with the Sri Lankan authorities and was not suspected of involvement with the LTTE. The Authority found that there was no indication in the applicant’s claims that he was involved with the LTTE, or was imputed as having an LTTE profile. It was in those circumstances that the Authority found that it was not satisfied they were exceptional circumstances to justify the Authority considering the CAT report.

5. The Authority also made reference to the CAT report commentary regarding torture during pre-trial detention, or as part of criminal investigations. The Authority noted that there was no indication in the applicant’s claims that he would be subject to pre-trial detention or criminal investigations and was not satisfied there were exceptional circumstances to justify the Authority considering that new information.

6. The CAT report in that regard in paragraph 9 refers to regular criminal investigations, as well as the issuing of a warrant. On a fair reading of the CAT report, the pre-trial or criminal investigation there referred to, was not one that is involved with the consequences of illegal departure and the application of the Immigrants and Emigrants Act.  Further, the criminal investigation and allegations of torture during police detention in the CAT report on a fair reading was not dealing with the topic in respect of which the applicant had identified because he had departed Sri Lanka illegally, he believed he could be imprisoned for a long period and if imprisoned, feared he would be harmed because he was a Tamil.

7. The Authority’s reasons deal with other new information and identifies reasons in support of finding that it was not satisfied there were exceptional circumstances to justify considering the information. Those reasons expressly refer to both limbs of s 473DD of the Act. This is not a case in which the Authority’s reasons reflect an erroneously narrow meaning of exceptional circumstances or a failure to take into account both limbs of s 473DD of the Act in the consideration of new information.

The Applicant’s claims

1. The Authority identified the applicant’s claims and evidence. The Authority referred to the 2010 UNP presidential election, and the applicant stating he was an active UNP supporter. The Authority found the applicant was a low-level UNP supporter for a short period before and during the presidential election, and provided low-level support for the UNP at that election. The Authority did not accept that from this role, the applicant had a profile that would have attracted ongoing adverse attention from political opponents, as claimed.

2. The Authority referred to the applicant being asked at the Safe Haven Enterprise visa interview how the Karuna Group or TMVP would have been aware of his support for the UNP, considering he did his canvassing at night. The Authority was not convinced by the applicant’s response, in which he referred back to being known because of his social work in the local area. The Authority was not convinced that the applicant had a significant enough profile to have been targeted for threatening telephone calls from a senior Karuna group/TMVP official.

3. It was in these circumstances, the Authority noting the applicant’s low profile political activities and that the candidate he supported did not win the presidential elections, that the Authority did not accept that the applicant was of ongoing adverse interest to the Karuna Group or TMVP after the election, and that paramilitaries came to his home and tried to set it alight.

4. The Authority referred to a card acknowledging a complaint lodged with the Human Rights Commission on 1 February 2010 but decided to give this little weight. The Authority noted it supported that a complaint was lodged but did not provide independent corroborative evidence of the claimed incident.

5. The Authority referred to alleged incident involving the applicant’s house and that his family no longer live in the house because it was burnt and it is now overgrown with weeds. The Authority was not convinced that the claim of extensive damage was consistent with the photographs. The Authority found part of the applicant’s account of that incident to be implausible. The Authority found implausible the claim that attackers tried to, or did, beat his wife which was not referred to in the applicant’s statutory declaration.

6. The Authority noted the inconsistency between the applicant’s statement at the interview that after this incident he no longer lived in the house but moved to a particular location and the conflicting information provided in his Safe Haven Enterprise visa application. The Authority found the inconsistencies and implausibilities cast doubt on the veracity of the applicant’s claims. The Authority was willing to accept that the applicant provided low level support to the UNP in the 2010 presidential elections. The Authority accepted that the applicant may have been involved in counting votes after the 2010 elections but had difficulty accepting that the UNP would ask the applicant, who was not a party member, to represent the party for the important role of vote counting.

7. The Authority was however, willing to give the applicant the benefit of the doubt and accepted he counted votes at the 2010 election but did not accept that this was as a representative of the UNP but as an administrative role. The Authority did not accept the applicant was targeted for threats by the Karuna Group/TMVP or that a senior TMVP member telephoned him, threatened him to shoot him during the election campaign, or that paramilitaries attacked and attempted to burn his house and beat his wife after the election.

8. The Authority accepted the applicant stood as an independent candidate at the 2010 parliamentary elections and found it plausible that the applicant and his campaign supporters were harassed and threatened by political opponents and warned to stop canvassing. The Authority accepted that the applicant stood as a candidate for the Eeelavar Democratic Front (“EDF”) at the 2012 provincial council elections and was threatened by members of the Karuna Group/TMVP.

9. The Authority also accepted the applicant may become involved in politics on return to Sri Lanka and that he illegally departed Sri Lanka and sought asylum.

Assessment of Refugee Convention criteria

1. The Authority expressly referred in paragraph 32 of the Authority’s reasons to the well-founded fear of serious harm being a forward looking test. The Authority was not satisfied the applicant would come to the adverse attention of paramilitary groups or the authorities on return to Sri Lanka.

2. The Authority was not satisfied there is a real chance the applicant would face serious harm because of his past involvement in the 2010 and 2012 elections. The Authority found there was not a real chance the applicant would face serious harm on the basis of his role in past elections, nor if he were to become politically active on return to Sri Lanka. The Authority was not satisfied that the social work which the applicant had undertaken or any social work he may undertake on return would attract adverse attention in Sri Lanka.

3. The Authority referred to the applicant’s fear in relation to his home area not being safe for Tamils and found the country information does not support this fear as being well-founded should he return to Sri Lanka.

4. The Authority was not satisfied there is a real chance the applicant would experience harm as a Tamil on return to Sri Lanka. The Authority did not accept that being from the Eastern Province or from an area in close proximity to the LTTE would result in harm and referred to the 2012 UNHCR report that originating from an area that was previously controlled by the LTTE does not in itself result in the need for international refugee protection.

5. The Authority found that the chance of the applicant being harmed by a remnant of the TMVP /Pillayan group or other paramilitary groups is remote. The Authority accepted the applicant departed Sri Lanka illegally as an asylum seeker. The Authority accepted that the applicant may be questioned by police at the airport and charged under the Immigrants and Emigrants Act 1949 and that most returnees will be fingerprinted, photographed and transported to the nearest Magistrates Court at the first available opportunity. The Authority accepted the returnees may be required to remain in police custody at the CID airport office for up to 24 hours if a Magistrate is not available before this time, such as a weekend or public holiday, and may be held at a nearby prison.

6. The Authority did not consider that the brief period of detention constituted the necessary level of threat to his life or liberty, or to significant physical harassment or ill treatment under s 5J(5) of the Act or otherwise amount to serious harm for the applicant. The Authority did not consider any likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed or imposition of a fine to constitute serious harm under s 5J(5) of the Act.

7. The Authority referred to country information stating that all persons who depart Sri Lanka illegally are subject to the Immigrants and Emigrants Act 1949. The Immigrants and Emigrants Act 1949 was found to be a law that is not discriminatory on its terms and that its application does not amount to discrimination. The Authority found that the law is not enforced in a selective manner or applied in a discriminatory manner. The Authority found that the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act 1949 would be the result of a law of general application and does not amount to persecution for the purpose of s 5H(1) and s 5J(1) of the Act.

8. The Authority was not satisfied the applicant’s status as a failed asylum seeker would bring him adverse attention on return to Sri Lanka. The Authority was not satisfied there was a real chance the applicant would face any harm as a returning failed Tamil asylum seeker. The Authority was not satisfied there is a real chance of the applicant being persecuted in Sri Lanka in the reasonably foreseeable future. The Authority found the applicant’s fear of persecution is not well-founded.

9. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria under s 36(2)(a) of the Act.

Assessment of complementary protection criteria  

1. The Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision on review.

Before this Court

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

   Ground 2

   2. The IAA accepted some of the applicant's claims but not others. In the circumstances, in relation to the claims which the IAA did not accept, it was necessary for the IAA to take into account the possibility that those events claimed by the applicant occurred: see Minister v Rajalingam (1999) 93 FCR 220. The IAA did not take into account this possibility. This was a jurisdictional error.

   Ground 2A

   3. The applicant made claims concerning his involvement in the 2010 presidential election in Sri Lanka. The Minister's delegate accepted the claims. The IAA did not accept some of the claims.

   The IAA did not put the applicant on notice that his account of his involvement in the 2010 presidential election was in issue. In the circumstances, the IAA acted unreasonably in not giving the applicant an opportunity under s 473DC of the Migration Act to comment on this issue.

   Ground 4

   5. The IAA accepted that “the applicant stood as a candidate for the EDP at the 2012 provincial council elections and was threatened by members of the Karuna group/TMVP."  [at para 26]. The IAA also accepted that “the applicant may become involved in politics on return to Sri Lanka.” [at para 27]. IAA further accepted that “the leader of the EDP was shot at in May 2015 and a person identified as a social services officer was shot in his home in Mandur, Batticaloa.” [at para 29]. The IAA also accepted that “the applicant assisted at his temple and helped people in his village." [at para 18]. The IAA accepted “that the applicant stood as an independent candidate at the 2010 parliamentary elections and was threatened by members of the Karuna group/TMVP." [at para 26]. The IAA accepted that “the applicant was involved in elections in 2010 and 2012 and that he was harassed and threatened by political opponents when he stood as a candidate in the parliamentary and provincial council elections. Reports of the elections in 2010 and 2012 document many irregularities and fraud and incidents of harassment of political opponents and accounts of violence against candidates." [at para 32]. The IAA said that “the applicant stated that he may adopt an active role in politics in the future. I note that he has not been involved in any political activity since leaving Sri Lanka in 2012, but I do not discount him doing so in the future.” [at para 36]. it was incumbent for the IAA to consider whether an applicant for protection visa in Australia would face of real chance of persecution in Sri Lanka in the reasonable foreseeable future in these circumstances and the available independent country information is contrary to the information of the DFAT report 24 January 2017. Failure to consider this was a jurisdictional error.

   Ground 8

   5. The IAA with reference to s 473DD of the Migration Act found at [9] that it was not satisfied there were exceptional circumstances to justify the IAA considering a submission and country information the applicant provided to the IAA on torture during pre-trial detention or as part of criminal investigations. The IAA committed a jurisdictional error in making this finding.

1. Mr Zipser of counsel on behalf of the applicant confirmed that only the above grounds in the amended application were pressed.

Ground 2

1. In relation to ground 2, Mr Zipser took the Court to the findings of the Authority in relation to what he described as the three political activities, two of which occurred in 2010. Mr Zipser took the Court to the rejection by the Authority of the applicant’s claims to having received adverse attention as a result of the role he played in the presidential election in 2010. Mr Zipser submitted that the delegate had accepted the applicant’s claims and made no negative or qualifying findings concerning the applicant’s credibility.

2. Mr Zipser submitted that the Authority accepted the applicant’s claims concerning the parliamentary election that the applicant contested in 2010 and the provincial election in 2012 but did not accept the aspects of the applicant’s claims as to his involvement in the 2010 presidential election. Mr Zipser referred to the Authority’s reasoning in paragraph 19 where the Authority referred to a range of documents that he had been provided in relation to the 2010 and 2012 elections and said while these documents may support the applicant’s claims to have been a candidate in two elections and to provide administrative support in the presidential elections, the Authority had significant doubts about the plausibility of parts of the applicant’s accounts of events and was not convinced that his account of events and harm experience is genuine. Mr Zipser argued that this was a case where, consistent with the Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60], [62], [63] and [67], that the Authority was required to take into account the possibility of “what if I am wrong”.

3. Mr Zipser submitted that on a fair reading, the Authority in relation to the rejection of the applicant’s claims concerning the consequence of his activities and providing support for the presidential elections, were in the category where there was a real doubt and that the Authority accordingly had to consider the possibility and make findings as to what if the Authority was wrong.

4. I accept the submissions of the first respondent that the findings made by the Authority in relation to the applicant’s activities in 2010 in relation to the presidential election are not the subject of any real doubt. The Authority made adverse findings that were open to the Authority for the reasons given by the Authority. Ground 2 fails to make out any jurisdictional error.

Ground 2A

1. In relation to ground 2A, Mr Zipser submitted that this was a case where if the Authority was going to depart from the findings of the delegate, the Authority should have invited the applicant to comment or respond in relation to that course. Mr Zipser submitted that it was a legally unreasonable exercise of power by the Authority not to invite the applicant to comment or respond and drew attention to the Court’s powers to obtain such information under s 473DC(3) of the Act.

2. The submissions advanced to the Authority did not invite the Authority to exercise the power under s 473DC(3) of the Act. The finding by the Authority in the present case is not of a kind that is other than making different factual findings that were open on the material before the Authority. The finding by the Authority in relation to the applicant’s alleged political activities and involvement in 2010 is not one in respect of which it was legally unreasonable for the Authority not to invite the applicant to comment or respond under s 473DC of the Act. No jurisdictional error as alleged in ground 2A is made out.

Ground 4

1. In relation to ground 4, Mr Zipser drew the Court’s attention to the requirement for consideration into the reasonably foreseeable future. Mr Zipser drew attention to the country information identifying the situation in Sri Lanka as being fluid. Mr Zipser submitted that where the political and security situation of a country is fluid, it is important for the decision maker to consider the situation for the applicant into the reasonably foreseeable future on his or her return to the receiving country.

2. Mr Zipser drew attention to the fact that the Authority accepted the applicant may become involved in politics on return to Sri Lanka. Mr Zipser submitted that the Authority had not considered the situation of the applicant into the reasonably foreseeable future. Mr Zipser’s argument was founded in part on the finding in paragraph 36 of the Authority’s reasons in which Mr Zipser argued the finding did not address the reasonably foreseeable future.

3. Paragraph 36 of the Authority’s reasons is not to be read with a keen eye to error. On a fair reading, paragraph 36 of the Authority’s reasons did address the future and that is supported by the reference to the concept of what would happen if the applicant were to become politically active on return.

4. Further, the reference in paragraph 32 to the Authority’s reasons to the forward looking test, as well as the future language used in paragraph 37 of the Authority’s reasons and the language used in paragraph 52 of the Authority’s reasons, are consistent with the Authority taking into account the reasonably foreseeable future in the adverse findings.

5. Ground 4 is in substance an invitation to this Court to engage in impermissible merits review. There was no failure by the Authority to correctly apply the relevant law in determining whether or not the applicant met the criteria for the grant of a protection visa. No jurisdictional error as alleged in ground 4 is made out.

Ground 8

1. In relation to ground 8, Mr Zipser drew attention to the finding of the Authority in paragraph 9, where the Authority referred to the proposition that there was no indication in the applicant’s claims that he would be the subject of pre‑trial detention or criminal investigation. Mr Zipser referred to the applicant’s statement in paragraph 19, in which the applicant had referred to his illegal departure and believed he could be imprisoned for a long period, and if imprisoned, he feared being harmed as a Tamil.

2. The consequences of the illegal departure by the applicant was a claim the subject of consideration and adverse findings by the Authority that were open to the Authority. The reference to the illegal departure and consequence of imprisonment is not I find, a reference to the same topic of pre‑trial detention and criminal investigation identified in CAT report. That CAT report, on a fair reading, was concerned with regular criminal investigations, and not the consequence of return to Sri Lanka, having illegally departed. That proposition is supported by the reference to the issuing of warrants or arrest without warrants in the CAT report.

3. I find the Authority was correct in its understanding of the CAT report and was correct in its understanding that the applicant had not raised a claim of concern in relation to pre‑trial detention or as part of a criminal investigation of the kind identified in the CAT report. Accordingly, there was no jurisdictional error by the Authority as alleged in ground 8 when considering the application of s 473DD of the Act.

4. Further, I find that if there was an error by the Authority in relation to the CAT report, it was an error of fact within the jurisdiction of the Authority, and not an error of the kind giving rise to jurisdictional error. This is a case where the Authority clearly addressed the applicant’s claims to fear harm, as raised in his statutory declaration, in respect of his illegal departure. No jurisdictional error as alleged in ground 8 is made out.

5. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 April 2018