DBX16 v Minister for Immigration
[2017] FCCA 3410
•8 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBX16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3410 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA |
| Applicant: | DBX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2264 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 8 November 2017 |
| Date of Last Submission: | 8 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 8 November 2017 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondent: | Mills Oakley |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2264 of 2016
| DBX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore)
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the IAA”) made on 21 September 2016. The IAA affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
I note the terms on which the IAA operates are under Part 7AA of the Migration Act 1958 (“the Act”) however, nothing in particular relating to the statutory terms appears to be at issue in this case.
The applicant had sought a protection visa based upon his Tamil ethnicity, his profile as an LTTE supporter, and because he was a failed asylum seeker and had departed Sri Lanka illegally. The applicant said that his brother had been regularly seen talking to LTTE cadets, and that in 2008 his brother had been arrested by the army and detained for three months.
Prior to the decision the IAA received an email from the applicant attaching copies of documents purporting to be warrants of arrest. This appears at court book p.138 and following. The IAA had regard to these documents, however, was not satisfied that they were genuine.
The IAA did not accept the applicant’s version of events, saying:
11. I do not accept that the applicant's older brother is now missing as a result of attention from the authorities in 2011. I place significant weight on the applicant's account that his brother was detained for three months in 2008 on the basis of having been seen talking to LTTE cadres and was then released. His brother was not charged with any offence at the time, nor was he monitored. In the period immediately after the war people with known LTTE links were rounded up and, depending on the level of involvement, made to undertake some form of rehabilitation [FN: Department of Foreign Affairs and Trade (DFAT), "DFAT Country Information Report - Sri Lanka", 18 December 2015, CISEC96CF14143]. If there had been any residual concern about the brother from the 2008 detention and questioning I consider it highly likely that he would have been questioned or detained in 2009 after the ceasefire. It is not plausible that two years later, in 2011, the brother has come to the attention of the Sri Lankan authorities and has since disappeared. The International Crisis Group [FN: International Crisis Group (ICG) Asia Report No.219, “Sri Lanka’s North: the denial of minority rights”, 1 March 2012, CIS22742] advises that during 2011 a series of killings, assaults and disappearances occurred in the north, however these incidents occurred in Jaffna which is significantly further north than Vavuniya.
12. I accept that the applicant came to the attention of the authorities during the civil war and in the months afterwards while living in Vavuniya, as country information supports the finding that Tamils were monitored at the time [FN: DFAT, “DFAT Country Information Report – Sri Lanka”, 18 December 2015, CISEC96CF14143]. I accept that as young Tamil male the applicant was rounded up and questioned by the authorities.
13. However, I have significant concerns about the applicant's claims to have been detained, tortured and wanted by the CID and to have been in hiding from the CID for three years before departing for Australia. Some aspects of the applicant's account are inconsistent with country information and there are a number of internal inconsistencies in his account. I consider these to be significant and I find they bring the applicant's general credibility into doubt.
· The applicant claims that after his brother was released in 2009 the authorities turned their attention to him. I note the applicant's brother had a profile as he had been observed talking to LTTE cadres, however he was released by the army and was not required to undergo rehabilitation at the end of the war, indicating that he was not of serious concern. I am not convinced that the applicant, who did not share his brother's profile of associating with LTTE cadres, would have attracted the level of attention claimed. The applicant's profile was one of a young Tamil man. Country information indicates that young Tamils would have experienced harassment, identity and registration checks and regular round ups [FN: Ibid]. Questioning may also have included physical assault. However, the applicant's claim to have been released without charge on two occasions is not consistent with his claim to have been imputed with an LTTE profile. Tamils suspected of having LTTE links are likely to have been charged under the Prevention of Terrorism Act. Association with the LTTE at that time was grounds for arrest and the majority of those arrested were sent to Government-run rehabilitation centres [FN: Ibid]. Taking account of country information I find the level of claimed attention to be exaggerated.
· The applicant claims that his younger siblings did not come to the attention of the authorities as the authorities targeted 17 and 18 year old teenagers, this being the standard age for LTTE recruits. He stated that his parents were not targeted because of their advanced age. Reputable reporters such as ICG and DFAT do not indicate that the authorities exempt older Tamils from questioning and suspicion. I accept that the authorities may have targeted teenagers of LTTE recruitment age for particular attention. However, if the authorities had any serious suspicions about the applicant or his older brother being linked to the LTTE, on the evidence, I consider it likely that his father, and possibly his younger brother (aged 14 in 2009), would have come to some attention.
· I do not accept that the applicant could have evaded the authorities for three years by moving to Batticaloa and Trincomalee. Both these areas are in the Eastern Province which at this time remained highly militarised [FN: ICG, Asis Report No.219, “Sri Lanka’s North I: the denial of minority rights”, 1 March 2012, CIS22742; Sri Lankan Guardian “A series of serious concerns regarding the situation in North & East Sri Lanka”, 25 October 2011, CX280047]. DFAT advises that the CID maintained a high level of awareness of the civil population in the east and closely monitored the Tamil population [FN: DFAT, “DFAT Country Information Report – Sri Lanka”, 18 December 2015, CISEC96CF14143]. I consider the applicant's claims that he was hiding from the CID for this period by staying indoors to be implausible. The applicant worked on three different construction sites for three different employers for the period 2009 to 2012. Considering the high level of military and CID presence I find it implausible that he did not come to the notice of the army or the CID during this time. The army and CID would have been evident in the area and I accept that the applicant and his work colleagues would have seen army and CID moving around the area. However, I find that this does not support the applicant's claim that he was wanted by the CID. Rather, this is indicative of the monitoring in the period immediately after the war.
· I consider the applicant's claims to have met a person in Batticaloa who offered him employment and residence to be implausible. The applicant claims to have fled Vavuniya in fear, having escaped out the back door of the family home when the CID come looking for him. He states that he told his story to an unknown stranger in Batticaloa. I do not accept that the applicant, who states he was in fear of the pervasive Sri Lankan authorities, would take the risk of informing a complete stranger that the CID had an interest in him and thereby exposing himself to considerable risk of that person informing the authorities. Furthermore, I do not accept that this person, on hearing from the applicant that he was wanted by the CID, would take the risk of employing and housing him. This is at the time of the end of the civil war and the authorities still had an active interest in people with LTTE links and were active in monitoring and registering Tamils in Eastern province.
· I do not accept the applicant's claim not to have contacted his family during these three years for fear that they may come to harm if he made contact. At his TPV interview the delegate asked the applicant about contact with his family. The applicant responded that because of his fear he does not telephone his family too often. When asked by the delegate how the authorities could know he had contacted his family the applicant clarified and explained that the PLOTE do not monitor the telephones, but they observe and notice if someone is missing from the village. From the applicant's account there is no logical reason why he could not have contacted his family by telephone during this three year period. On his own evidence the applicant has stated that the telephones are not monitored and there is no other reason to believe that he could not have telephoned his parents during this three year period.
· The applicant completed a further Part C of the 866A application form, dated 15 February 2016. At question 84 of this form the applicant has listed his employment history. For the period June 2008 to July 2012 the applicant has stated "sometimes I came back to work on the family farm". This contradicts his claim not to have been in contact with his family from 2009 to 2012.
· After the civil war the public investment in rebuilding infrastructure eased the previous high unemployment in both the Northern and Eastern provinces, with the unemployment rate dropping most significantly in the east in the years leading up to 20128. I find it more likely that the applicant moved to Eastern Province in 2009 for work opportunities and moved around different places to follow the job opportunities, and not because he was in hiding as claimed.
14. I do not accept that the applicant was detained in February 2009, and detained and tortured in March 2009, nor that he was regularly pursued by the CID and/or PLOTE from 2009. I find that the applicant has fabricated these claims in order to enhance his protection visa claims.
15. I accept the applicant has scars on his body. I have not accepted that the applicant was tortured in 2009 and as a consequence I am not satisfied that the scars on his body are the result of torture. I note that the applicant has worked in as a farmer and in construction, both manual labour industries where physical injury is not uncommon.
The IAA went on to consider whether the applicant would be imputed with the profile of being a supporter of the LTTE, and concluded that he would not and that the applicant was not likely to attract the attention of authorities.
The IAA also considered what harm might befall the applicant if he returned to Sri Lanka, having departed illegally, and applied for a protection visa. The IAA concluded;
26. I consider it is likely that on return the applicant will be charged under the I&EA, fined and released, or, should he plead not guilty, he will be released on his own personal surety. There is no indication he was involved in organising or facilitating people smuggling, and accordingly I find that there is no real chance that the applicant will be given a custodial sentence. I am not satisfied that the imposition of a fine would constitute serious harm. If he were to have difficulty meeting the cost of the fine there is scope to request that the fine be paid by instalment. In the applicant's case I am satisfied he has no connection to the LTTE or criminal history and I am further satisfied that he does not have an adverse profile with the Sri Lankan authorities. I am not satisfied the applicant would be subject to further investigation or prolonged detention, or mistreatment during questioning and investigative procedures carried out under the I&E Act.
…
28. The applicant fears that the authorities will harm him because of his profile as an asylum seeker. I note that DFAT [FN: DFAT, “DFAT Country Information Report – Sri Lanka”, 18 December 2015, CISEC96CF14143] has reported some accounts of mistreatment of returnees; however the indications are that those targeted for mistreatment are persons with a profile that suggests connections with the LTTE. The country information in the referred material advises that returnees, including Tamils, who have sought protection while overseas are not at risk of harm on that basis alone and are not specifically targeted for adverse attention, unless they are suspected of having links with the LTTE. For the reasons I have outlined in this decision I find that the applicant does not have actual or perceived links to the LTTE and would not be of concern to the authorities on return to Sri Lanka. Accordingly, I am not satisfied he faces a real chance of harm as a returnee and failed asylum seeker, or on my findings, a real chance of persecution as a Tamil who departed Sri Lanka illegally. I am not satisfied that he has a well founded fear of persecution.
Ultimately, the IAA found;
29. I have considered whether the applicant's accumulated profile as a young Tamil from an LTTE controlled area, with visible scars, whose brother had been suspected of LTTE links, and an illegal departee who has sought asylum, would raise his profile to the extent that he would experience serious harm. I have taken into account that many of the returnees to Sri Lanka since the end of the war have been young Tamils from the north who departed illegally and have sought asylum. The evidence does not support the applicant's fear that this raises his profile to the extent that would attract attention. I have considered the addition of the scars and I accept that this may be something the applicant could be questioned about. However, because of the lack any LTTE profile, or other reasons to come to attention, I find that there is not a real chance that he faces serious harm on return to Sri Lanka.
The IAA went on to consider the complementary protection provisions, and refused the application under those provisions for similar reasons.
At the hearing before me today the applicant sought an adjournment. The applicant attended today without any documents. He has filed no amended application or written submissions, despite orders made by the Registrar in April 2017. His application was first filed in October 2016.
The applicant claimed not to have received a copy of the Court Book, despite it being posted to him by the solicitors for the first respondent on 3 March 2017, a copy of which is marked Exhibit ‘1’.
The applicant said that he had changed his address and didn’t receive it for that reason. However, a Notice of change of address was not filed until 12 April 2017.
I provided the applicant with a copy of his own application so that the interpreter could read his grounds to him. The applicant said he didn’t have the money for a lawyer, and wanted time to try and find a lawyer who may act for him for free.
In this case the applicant has had more than ample time to find a lawyer, if there is one to be found, to act for him for free. I do not accept that the Minister didn’t post the Court Book to him. In the circumstances I’m not persuaded that the applicant’s case should be adjourned.
I turn to consider the grounds of application.
Ground One
Ground 1 provides that:
1. The Minister erred in law by taking into consideration facts not relevant to the matter in making the decision.
This ground as drawn refers to the decision of the Minister. To the extent it is intended to be a ground against the decision of the delegate, it is not relevant, as the decision under review is that of the IAA. I have therefore considered it on the basis of a claim against the IAA.
The applicant was not able to articulate which facts that he says were irrelevant, were taken into account. On reading the decision of the IAA it does not appear that irrelevant considerations were taken into account.
Ground Two
Ground 2 alleges:
2. The Minister erred in law by not taking into considerations relevant facts in making the decision.
Again, the applicant was unable to articulate any fact or circumstance referred to in this ground.
Ground Three
Ground 3 alleged:
3. The Minister erred in not taking into account relevant Country Information in making the decision.
It is clear from the decision that country information was considered by the IAA. The applicant did not identify any country information that he says should have been considered.
Ground Four
The fourth ground alleges that:
4. The Immigration Assessment Authority erred in law by taking into consideration facts not relevant to the matter in making the decision.
I have dealt with this ground under ground 1.
Ground Five
Ground 5 alleges that:
5. The Immigration Assessment Authority erred in law in failing to ask a reasonable number of questions in order to ascertain the credibility of the Applicant and make a fair decision.
This ground entirely misconceives the limited statutory basis for reviews by the IAA under Part 7AA of the Act. The provisions are intended to provide for a review on the papers.
Ground Six
The final ground is that:
6. The Immigration Assessment Authority erred in not taking into consideration under the Complementary Protection Provision of the Migration Act 1958 of the information provided by the Applicant.
The IAA specifically considered this aspect of the claim at paragraphs [31] to [39]. When asked at the hearing before me what error the applicant thought the IAA had made in law or in process, he said that he gave the IAA evidence of the search warrants and they didn’t consider it. This is the evidence that was emailed to the IAA, and appears at court book pp.139 to 145. The IAA specifically considered this evidence, saying:
4. On 9 September 2016 the IAA received an email from the applicant forwarding a statutory declaration and copies of three documents titled Warrant of Arrest. The statutory declaration states that the applicant contacted his family after receiving the decision of the delegate and asked if it was safe for him to return. He states he was informed that the CID came to the family home to arrest him and "gave Warrant of Arrest documents to my family". He requested that copies of these documents be forwarded to him. The first document is dated 8 September 2012 and the alleged offence is described as "involved supporting activities LTTE groups". The second and third documents are dated 20 October 2012 and 17 November 2015 and the alleged offence on both is "failed to attend court".
5. The applicant states that he received these documents after the delegate decision. However, the documents themselves are dated between 2012 and 2015, before the date of the delegate decision. I note that the applicant had the benefit of representation to assist with his TPV application. I am not satisfied that the documents could not have been provided to the Minister before the decision was made.
6. In considering whether these documents contain credible personal information I have had regard to the authenticity of these documents. I have considered the applicant's statement that the CID gave these to his family. I consider it unlikely that the applicant would have access to arrest warrants and I do not accept his account that these documents were given to his family by the CID. I am not satisfied that these documents are genuinely issued arrest warrants. Therefore, I find that these documents do not contain credible personal information about the applicant. Nor am I satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.
Not surprisingly the IAA, at the very least, thought that this was not new information within the meaning of the statutory provisions. Even if the IAA were wrong in this regard, their reasons indicate that the material was of no weight.
The applicant argued that the IAA had misunderstood his claims, and that the police had given the warrants to his family, not the CID. This is not a case where, arguably, the IAA misunderstood his evidence, as the allegations were set out in writing in a statutory declaration: see court book p.139.
At [4]of that statutory declaration, the applicant said;
4. CID wanted to arrest me and gave ‘Warrant of Arrest’ documents to my family.
This document was signed by the applicant and witnessed by a Justice of the Peace, and then emailed by the applicant to the IAA. At best, it seems that the applicant was mistaken in the material he set out in his statutory declaration, at least compared to his current version of events.
It does not appear to me that the IAA has misconstrued the terms of the statutory declaration provided by the applicant.
In the circumstances the applicant has not established a ground for judicial review.
I therefore dismiss the application.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 25 May 2018
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