DAS18 v Minister for Home Affairs

[2019] FCCA 253

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAS18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 253

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth)

Immigration and Emigrants Act 1948

Applicant: DAS18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 576 of 2018

Judgment of: Judge Vasta

Hearing date: 30 January 2019

Date of Last Submission: 30 January 2019

Delivered at: Brisbane

Delivered on: 30 January 2019

REPRESENTATION

Applicant appearing in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Application filed 13 June 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 576 of 2018

DAS18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 31 May 2018 the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the applicant, DAS18, a protection visa.  On 13 June 2018 the Applicant launched the present application in this Court to review that decision. 

2. The background to this can be summarised as follows: the Applicant claims to be a Tamil man of Hindu faith, from the Northern Province of Sri Lanka. 

3. He was born in Kilinochchi and, due to the civil war, he moved with his family to Vavuniya.  His mother, father and younger sister moved back to Kilinochchi in 2009 and the Applicant remained in Vavuniya with his two older brothers. 

4. They lived with his uncle, so that they could complete their studies.  In 2013, he had completed his studies and he moved back to Kilinochchi with his parents.  His two brothers remained living in Vavuniya with his uncle.

5. He claimed that he came to the attention of the Sri Lanka Army officers, who questioned him about where he had been living.  In one version of this tale, he said that this occurred when he was with his mother, who was hanging out clothes or something of that nature, and his mother told them that he had been living in Vavuniya. 

6. In another version, he said that this came about when he was playing cricket with some friends and the Sri Lankan Army came along.  They asked him where he had been living and the Applicant replied in Tamil.  The officers could not understand him, so they went to his house and interrogated his father.  The father explained that his son had been studying in Vavuniya. 

7. The Applicant said that after that, a number of officers used to question him regularly and accused him of being a member of the LTTE.  He said that there was one occasion where he was taken to an army camp, because the army suspected that he was a former member of the LTTE.  He said that he was interrogated, threatened and ordered to confess, but he consistently maintained that he had not been in the LTTE and had been living in Vavuniya studying.  He was released and he was scared, he said, to leave his house. 

8. He said that after this, soldiers came to his house on at least three occasions and would ask his mother and father for his whereabouts.  His parents reassured the soldiers that the Applicant was not associated with the LTTE.  He said that his house remained under surveillance. 

9. He said that other parents warned his mother that she must protect the Applicant, because Tamil boys were being abducted by the army soldiers and not returned to their homes.  He said due to his situation, he suffered panic attacks, sleepless nights, a loss of appetite and nightmares. 

10. He learned of an opportunity to flee by boat to Australia and his mother gave him some money and he fled the village overnight.  He said since he has been in Australia that the soldiers have come to his house and confiscated a photo of him from the wall of his home, and his mother informed him by phone in 2016 that his departure had confirmed the army’s suspicions that the Applicant is, in fact, LTTE and they sought out his father and beat him. 

11. He said that the soldiers are actively looking for him and he will be harmed in Sri Lanka on account of the suspicion that he has something to do with the LTTE.

12. The IAA assessed all of these claims.  They did have some problem with the Applicant’s timeline, in that he was not able to realistically say when the family moved from Vavuniya.  He gave the delegate a copy of his Sri Lankan drivers licence. That drivers’ licence was issued in Vavuniya in January 2013.  In his original screening interview, the Applicant mentioned that he worked as a taxi driver in Vavuniya. 

13. The delegate questioned him about this and he said that it was a very casual arrangement where he would drive his friends’ vehicles and he would charge a fee for transporting people various places around the area.  He said he did this for about one to two months.  Now, the IAA accepted that this was correct.

14. Where they had some problem is he claimed at different times that he had moved from Vavuniya to Kilinochchi between one month and five months before it was that he left to go to Australia.  The IAA made quite a deal out of this, and that is because, if the Applicant had lived in Kilinochchi for five months prior to his departure, then it would give his claims a little more credence. 

15. What was known was that the Applicant did arrive in Australia on 9 June 2013 as an unauthorised maritime arrival.  That means that he would have left in either mid to late May of 2013.  Given that the IAA accepted that he had worked for a couple of months as a taxi driver in Vavuniya, it would seem that such work would not have commenced until he had his driver’s licence in January of 2013; which really means that he was in Vavuniya about a month before he left for Australia. 

16. He had actually given that timeline when he first arrived.  In his first screening interview he told the department that he was living in Vavuniya when he left, and he had been there since 2005.  It was in the SHEV interview that he said he had been back in Kilinochchi for five months and he said that he got that because he contacted his mother. 

17. One would expect that he would know where it was he was living when he left, but nevertheless the IAA accepted that he was there in Kilinochchi for approximately one month prior to departing Australia.

18. That then puts a different slant on what it is that he says occurred in that time.  Whilst the IAA did not cavil with the fact that as a young Tamil male of fighting age, living in the north, the SLA would have been very sensitive about such a person and want to ensure that they were not a person whose sympathies could reignite the powder keg that was the LTTE. 

19. However, when the IAA actually considered what has happened, they were not convinced.

20. Whilst they were happy to accept that the Applicant had been taken to an army camp, it was pertinent that the Applicant had not been harmed during that time, was there for about 20 minutes and left without charge. 

21. The evidence about being harassed and questioned by the army officers was varied and confused, according to the IAA.  The Applicant had told the delegate in the SHEV interview that after he left Sri Lanka, the army officers visited his house.  The delegate asked him if they had ever visited his house before this.  His response was no.  That contradicted the SHEV application and the entry interview, where the Applicant said that the officers had visited his house three times and questioned his parents about association with the LTTE. 

22. The IAA also found it confusing and contradictory that the Applicant indicated that, after being taken to the camp for 20 minutes, he was too scared to leave his home on account of this treatment from the army.  Yet when the army came to the house, apparently, they would question and intimidate the Applicant’s parents, rather than the Applicant himself. 

23. All in all, the IAA found that the reason advanced by the Applicant that he was imputed with LTTE suspicion, that being that he was absent from Kilinochchi during the war, to be very unconvincing. 

24. The IAA found that given what the Applicant said had happened, it was unbelievable that, if that is what occurred, that the Applicant would have some sort of profile with the army as being an LTTE supporter. 

25. The delegate asked the Applicant whether it was strange that given that the Applicant kept saying that he had been staying with his uncle in Vavuniya, that the army did not go and question the uncle, if they were this concerned.  The Applicant said “they would question young boys like this, even though they know we are not involved, and that is why they did not interview us about our whereabouts or do anything serious like this”. 

26. The IAA found that the acknowledgement that the army inquiries were not serious to be a direct contradiction with the Applicant’s written statement, where he said that these incidents are to be taken very seriously.

27. The IAA did not accept that the Applicant was questioned frequently.  The IAA did not accept that the army sought the Applicant out at this home and questioned his parents, on account of their concerns.  The IAA did not consider the Applicant was a person of interest to the authorities, and did not accept that the army placed the residence of the Applicant under surveillance, as he claimed.

28. Whilst the Applicant has said that he has a number of issues because of this including panic attacks, insomnia, nightmares and loss of appetite, the IAA noted that there was no supporting evidence that he suffered these health issues.  The Applicant did not raise this claim when he arrived in Australia, and he did not mention it during the SHEV interview with the delegate.  He did put it into the written application, but because there has been no other material other than what the Applicant said, the IAA did not consider that the Applicant had in fact suffered those mental conditions and certainly not for any of the reasons that he had claimed.

29. Whilst the IAA understood that people may have warned the mother of the Applicant that things may not have been safe for the Applicant, the IAA simply noted that that may be that the mother had some concern over the general safety of the Applicant. 

30. Whilst the Applicant in his application said that due to what he considered to be the imminent threat on his life, he left the village overnight, the Applicant’s evidence at his entry interview was that his mother had assisted the planning of his departure and had organised the payments. 

31. He said that he received new clothes and some anti-nausea medication for the sea journey.  His father brought him to Kilinochchi city where they met with someone who accompanied him to a bus, which then took him on to the location where the boat was that then departed for Australia.  So there was an unexplained inconsistency in the story.

32. The IAA did not accept that after the Applicant left and came to Australia that the army came looking for the Applicant.  The IAA did not accept that a photograph of the Applicant was taken from the family home, or that the father of the Applicant was beaten by the army, on account of the Applicant. 

33. Therefore, the IAA came to the conclusion that the Applicant did not have a well-founded fear of persecution, and so therefore he did not fit the criteria. 

34. As to the complementary protection criteria, the IAA looked at all of the consequences according to the country information as to what would happen to the Applicant, if it were, that he were to be returned to Sri Lanka.  Whilst the IAA looked at the fact that the Applicant may have breached the Immigration and Emigrants Act 1948, the penalty for that would be the imposition of a fine and there may be some short detention until his case could be heard. 

35. However, the IAA found that this did not constitute a real risk of significant harm on that basis.  In those circumstances, the IAA affirmed the decision.

36. The Applicant’s originating application had one ground, and that was:

    That the Immigration Assessment Authority and delegate of the Minister for Home Affairs erred in law in making his decision. 

37. Straightaway the ground is incompetent in that it talks of the delegate for the Minister for Home Affairs and that is not the remit of this Court.  This Court can only look at the decision of the IAA.  Nevertheless, that ground is so wide and general that it actually means nothing without any further particularity. 

38. In the application, the Applicant had asked that leave be granted for the Applicant to file and serve an updated application before the directions hearing.  The application also asked whether the Applicant required an interpreter and the answer of yes was crossed out, and the answer of no was circled.

39. Registrar Belcher made orders on 18 July 2018 which did allow for the Applicant to file and serve a further originating application or amended application, and also that the Applicant file submissions for the matter. 

40. The Applicant did not file any amended application and certainly missed the deadline for his submissions.  The Minister filed their submissions on time.  The Applicant did file submissions, but filed them yesterday which is at least two weeks late.  Nevertheless, I have still looked at the submissions that the Applicant had made.

41. In effect, he has said that he does not believe that his case has been fairly heard.  He said that he was unwell during the SHEV interview and that he does not work well under pressure and he suffers from post-traumatic stress disorder, which he mentioned in his statutory declaration. 

42. He claims that this was not fully considered by the delegate or the IAA.  However, it was noted by the IAA that there was no material whatsoever before it to indicate that such was the case.  The IAA made a conclusion as to that, which was open to it on the evidence.

43. I should add that the Applicant today has come here and has attempted to give me some form of medical certificate.  But as I explained to him when I refused to see it, that because it was not before the IAA, it really should not be looked at by me. 

44. The Applicant says that the IAA erred by reaching the wrong conclusion because it failed to consider his integral claim of being a member of a social group, particularly being a young male from the north east.  When one has a look at the whole of the reasons, it is quite obvious that the IAA looked at this aspect, understood why it is that the Applicant may feel the way he did; but then looked at the country information and looked at what had actually happened as a whole, and came to an objective view that what the Applicant was fearful of, was not well-founded. 

45. In the course of the discussion between the Applicant and the Bench today, I pointed out to the Applicant that someone may be subjectively scared of the dark but objectively the fear of the dark is not a well-founded fear.  It is that same sort of reasoning that the Applicant has failed to come to grips with in this submission. 

46. The Applicant has said that the IAA should have imputed that the army would say that the Applicant had a political opinion as an LTTE member, due to imputed opinion of dealings with the LTTE. 

47. The IAA looked through all of that, understood that the Applicant came from that particular area, accepted the Applicant’s evidence that he was taken to an army camp and he was interrogated, but that he was not harmed and he was released 20 minutes later.  The IAA said that in those circumstances, the Applicant could not have been imputed with LTTE leanings.

48. The Applicant spoke of UNHCR eligibility guidelines for Sri Lanka and said that it noted that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection.  There is nothing in the decision of the IAA that is contrary to this.  The IAA has simply looked at the facts and found that in the Applicant’s situation, that there was nothing that gave rise to a need for international refugee protection.

49. The Applicant also claimed that the IAA had a predetermined view of the outcome of their review.  But there is nothing that has been proffered that would in any way show that that has occurred.  In fact, the IAA has made some determinations in the Applicant’s favour, which it need not have done.  It is very difficult in that situation to come to a view that the IAA has been biased.

50. It was also suggested that the IAA has guidelines on dealing with vulnerable persons and that the IAA did not follow their policies through.  The Applicant has not shown in any way what evidence the IAA had to say that he was a vulnerable person, nor what it was that those guidelines would have caused the IAA to do that they did not do, and how he was affected because of that.  So there is no merit in any of those submissions.

51. I have looked very thoroughly at what the IAA has done and I cannot find that there has been any jurisdictional error. 

52. Therefore, I dismiss the application and I order that the Applicant pay the costs of the Minister, fixed in the sum of $5,000.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 17 April 2019