Dau17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 465
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DAU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 465
File number(s): SYG 2146 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 14 June 2022 Catchwords: MIGRATION – Immigration Assessment Authority – Protection visa – whether the Authority failed to address and deal with a claim – whether there is jurisdictional error – no jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Abebe v The Commonwealth (1999) 197 CLR 510
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 6 June 2022 Date of hearing: 6 June 2022 Place: Parramatta Counsel for the Applicant: Mr Zipser Solicitor for the Respondents: Mr Fisher ORDERS
SYG 2146 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAU17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
14 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 $7328.00.
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
The applicant is a Tamil male, in this twenties, from the Northern Province of Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival on 3 October 2012.
On 15 February 2016, the applicant lodged an application for a Safe Haven Enterprise visa (“Protection visa”). On 14 November 2016, a delegate of the Minister for Immigration and Border Protection (“the delegate”) decided to refuse the applicant a Protection visa.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 26 June 2017, the Authority affirmed the decision not to grant the applicant a Protection visa.
The applicant now seeks judicial review of the Authority’s decision.
GROUNDS OF JUDICIAL REVIEW
The applicant now relies on a single ground of judicial review, having abandoned a second ground that was contained in an Amended Initiating Application filed on 1 May 2018. The single ground now relied upon is as follows:
1. The applicant claimed to fear significant harm on return to Sri Lanka because, among other reasons, “he is a young Tamil male from the Northern Province”: decision of the Immigration Assessment Authority (“the IAA”) at [2]. The IAA did not properly address and deal with this claim. Specifically, the IAA found out [40]-[43] (in a section titled “Fear of harm because of imputed connections with the LTTE”) that “there is no real chance the applicant would be subjected to harm… as a person with suspected LTTE connections”: at [43]. However, an integer of the applicant’s claim which the IAA did not address was whether, separate from imputed connections to the LTTE, the applicant faced a real chance of significant harm because he was a Tamil from the north. The IAA’s failure to deal with this integer of the applicant’s claims involve jurisdictional error.
THE APPLICANT’S SUBMISSIONS
Counsel for the applicant conceded that in the applicant’s Statutory Declaration which accompanied his Protection visa application, no express claim was made for fear on the basis of being a Tamil from the Northern Province. However, at two places in the delegate’s decision record, a specific reference was made to a fear as being a Tamil from the Northern Province.
Relevant country information indicated that Tamils from the Northern Province face discrimination. The delegate made that finding. However, the Authority made no specific finding that the applicant feared harm as a Tamil. Rather, the Authority dealt with the matter on the basis that the applicant came from an area in the Northern Province that was formerly controlled by the LTTE.
It was submitted that the wording at the end of paragraph 43 of the Authority’s decision is of importance, where the Authority stated:
I am satisfied there is no real chance that the applicant would be subject to harm now or in the reasonably foreseeable future as a person with suspected LTTE connections, including on account of his Tamil ethnicity and residence in areas formally under LTTE control.
On behalf of the applicant, it was submitted the above paragraph should be read narrowly so as not to support a finding that the Authority dealt with the claim that the applicant feared harm merely by being a Tamil from the Northern Province. It was submitted that it should have been a separate subheading or paragraph which clearly discussed this issue in detail.
In terms of the claim that the applicant faced fear as a returning asylum seeker, it was submitted that the “wrap-up” at paragraph 50 of the Authority’s decision was insufficient as the Authority had never previously dealt with the applicant’s claim that he faced a real chance of harm simply by being a Tamil.
The applicant sought to rely on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 where the Full Court stated in part at [55]:
where the Tribunal fails to make a finding on ‘… a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to is accord procedural fairness and a constructive failure to exercise jurisdiction.
THE FIRST RESPONDENT’S SUBMISSIONS
On behalf of the Minister for Immigration, it was conceded that it was uncontroversial that the failure to consider an integer of the claim that is squarely raised in other materials before a decision-maker can be a jurisdictional error.
The applicant claims to fear significant harm on return to Sri Lanka because “he is a young Tamil from the Northern province”. It was submitted that the claim is incomplete in that the Authority set out his claim at paragraph 2 of the decision record as follows “… he is a young Tamil male from the Northern Province, an area formally can under the control of the LTTE’.
Later, at paragraph 12 of the decision record, in a section headed “Applicant’s claims for Protection”, the Authority repeated this by saying “the applicant claims he comes from X district in the Northern province of Sri Lanka, an area that was under LTTE control during the war”.
These statements are consistent with the applicant’s claims at Court Book page 174 where he said that he came from “…Y village, situated in X district, and the Northern province, Sri Lanka. Y village is a former LTTE controlled area…” It was submitted that the applicant’s claims were fully addressed in the Authority’s decision.
The claims of fear as a member of the Tamil population living in the North were addressed at paragraphs 40, 42 and 43 of the decision record. At paragraph 43, the following was said:
…[there] is no real chance the applicant would be subjected to harm now or in the reasonably foreseeable future as a person with suspected LTTE connections, including on account of this Tamil ethnicity and residence in areas formally under LTTE control.
It was submitted the claim by the applicant that the Court should draw an adverse inference from the omission of a specific subheading relating to the “applicant claimed to fear harm because he was a Tamil from the Northern Provinces’ proceeds from an erroneous premise. The description of the applicant’s claim is incomplete and the claim cannot be decoupled from consideration, as relied upon by the applicant, that the Northern Province was formerly an area under LTTE control.
Further, whether a decision-maker has failed to consider a claim is to be determined as a matter of substance, not form: (see; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [45] (“Applicant WAEE”)).
In terms of fear of harm as a failed asylum seeker who departed Sri Lanka illegally, the Authority also turned its mind to whether the applicant had a well-founded fear of harm in consequence of being a young Tamil from an area, the Northern Province that was formerly controlled by the LTTE.
At paragraph 44 of the decision record, the Authority referred to the applicant as being the resident of a formally LTTE controlled area and was not satisfied that a connection with the LTTE would be imputed to him merely because of his Tamil ethnicity and his residence in the former LTTE controlled area. The Authority was not satisfied that there was a real chance he would face harm as a consequence of the routine investigation he may undergo at the airport on return.
This then feeds into a comprehensive finding at paragraph 50 of the decision record which includes the key risk factor in relation to being mistreated and subjected to torture, particularly for detained for a prolonged period, is whether a Tamil has certain actual or perceived links to the LTTE. The Authority goes on to state:
… Merely being a Tamil, a Tamil from the north, or being a failed asylum seeker is not enough to give rise to a real chance of harm on return. I do not accept that the applicant will be imputed with a pro-LTTE or anti-government dissident beliefs by authorities for any reason, including his Tamil ethnicity; the fact that he is a young Tamil male who departed illegally and sought asylum; his place of residence in a formally LTTE controlled area.
It was submitted that when the Authority’s reasons are read as a whole, the contention that the Authority did not consider whether the applicant faced a real chance of harm as a consequence of being a Tamil or more to the point a Tamil from an LTTE controlled area cannot be sustained.
CONSIDERATION
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91] the following was said:
Further, in rejecting the argument that the two attacks it accepted had occurred could give rise to a well‑founded fear of persecution, the Tribunal made a finding that the Hawiye clan was not targeting the Abaskul clan. This finding, being a finding at a higher level of generality than the question of specific incidents, may well explain why the Tribunal made no detailed finding about the house invasion. That being so, it is not demonstrated that the Tribunal made some error of law. It is not shown that it failed to take account of a relevant matter or that it asked itself the wrong question.
Nor should reasons of the Authority be read with “an eye keenly attuned to error”: (see; Applicant WAEE).
As set out above in the first respondent’s submissions, the Authority considered at numerous places within the decision record that the applicant feared harm as a young Tamil male who came from an area formerly controlled by the LTTE. The situation is that the Northern Province was an area formally controlled by the LTTE. Thus, a consideration of an area formally controlled by the LTTE encompassed the Northern Province. This integer, it is complained, was not dealt with was fully encompassed in the finding at paragraph 43 that:
I am satisfied there is no real chance that the applicant would be subjected to harm now or in the reasonably foreseeable future as a person with suspected LTTE connections, including on account of this Tamil ethnicity and residence in areas formally under LTTE control… I am not satisfied that there is a real chance that he faces serious harm amounting to persecution on return to Sri Lanka because he would be imputed, for any reason arising on credible evidence before me, to have links with the LTTE, or to hold views supportive of that organisation (emphasis added).
The Court is satisfied that it was not necessary for there to be a separate and discrete finding in relation to fear as being a young Tamil male from the Northern Province as this was fully encapsulated with the discussion that the applicant came from an area that was formerly under LTTE control. The Authority considered country information, but properly came to a view as set out in the decision record at paragraph 33 that the focus on the part of Sri Lanka and authorities had shifted to those who might be of adverse interest in relation to LTTE connections or activity. The Authority went on to say that, based on country information, it was not satisfied that the applicant’s family connection with a cousin that had fought with the LTTE, whose involvement had been fully investigated and who had undergone rehabilitation, would cause the applicant to be regarded as a security risk or source of useful information by the authorities. The Authority also dealt with the claims in relation to the applicant’s brother. The Authority further went on to say that the applicant would not be viewed as a person who currently supports the LTTE or would wish to revive it. It was on this basis that the Authority went on to state at paragraph 50 of the decision record that it was not satisfied that the applicant would face a reasonable risk of harm as it would not be imputed with pro-LTTE or anti-government views. This included cumulatively finding that the applicant did not face a real chance of persecution on returning to Sri Lanka.
As was acknowledged by Counsel for the applicant, the claim of fear in relation to being a young male from the Northern provinces was not a specific claim raised initially, it was submitted that this claim must have arisen during the course of the interview with the applicant by the delegate. Otherwise, the delegate would not have referred to it. No transcript of the interview with the delegate was tendered in evidence, and the Court was asked to infer that this must be what had taken place. Otherwise, why would the delegate have made specific reference to that claim?
The respondent submitted that the onus of proof lay on the applicant and, if they sought to advance that proposition, then evidence in support of the contention should have been tendered by them. The Court accepts that the onus of proof is on the applicant to advance whatever claims and evidence they wish to in support of the contention that they have a well-founded fear of persecution: (see; Abebe v The Commonwealth (1999) 197 CLR 510 at [187]).
The Court is satisfied that the claim of fear of being a young Tamil male from the Northern province both in terms of general fear upon returning home and general fear as a failed asylum seeker returning to Sri Lanka was considered by the Authority and was dealt with by findings of greater generality. The Authority referred to these claims in paragraph 2 of the decision record on the basis that the applicant was a young Tamil male from the Northern Province, an area formally under the control of the LTTE in the North.
CONCLUSION
No jurisdictional error exists. The application is dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 14 June 2022
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