DCG17 v Minister for Immigration

[2018] FCCA 3381

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCG17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3381

Catchwords:
MIGRATION – Protection visa application – review of decision Immigration Assessment Authority – whether Authority erred in failing to consider a claim – whether Authority erred in failing to engage in a qualitative assessment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R 473DD, pt.7AA

Cases cited:

AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111
Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610

Applicant: DCG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2178 of 2017

Judgment of: Judge Smith

Hearing date: 29 October 2018

Date of Last Submission: 29 October 2018

Delivered at: Sydney

Delivered on: 29 October 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms B Griffin, Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2178 of 2017

DCG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 27 June 2017.  The Authority affirmed a decision of the delegate of the Minister made on 4 November 2016 to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Sri Lanka who arrived in Australia on 10 October 2012 and, once a decision had been made by the Minister to allow him to do so, lodged an application for a protection visa on 20 May 2016.

3. The claims he made in support of that application are set out in summary by the Authority in [13] of its statement of reasons which I will adopt for the purposes of this judgment:

   ...

   •   The applicant is a Tamil male from Batticaloa District, Eastern Province.

   •   In 1993 the applicant’s father went missing. The Sri Lankan authorities issued a death certificate to say the LTTE[1] killed him when it fact it was the Criminal Investigation Department (CID).

   •   In 2000 the applicant’s brother, Brother T, joined the LTTE. Brother T is still missing and the Red Cross informed the applicant's mother he is likely deceased.

   •   In 2000 the applicant began volunteering for the Tamil National Alliance (TNA). He put up posters, distributed pamphlets and attended their meetings and protests. The applicant’s views and role in the TNA were known publicly.

   •   From 2011 the CID came to the applicant’s house and asked where Brother T was. The applicant was taken away and tortured for information about Brother T. The CID believed Brother T was still alive and that the applicant was hiding him.

   •   After this incident, the applicant did not stay in his house overnight as the CID would always look for him in the evenings. The CID told the applicant's wife if he didn’t surrender they would kill him. The applicant tried to lodge a complaint with the police but they would not take a written statement from him.

   [1] Liberation Tigers of Tamil Eelam.

   •   In 2009 the applicant lost his job because of his support for the TNA.

   •   In September 2012 the CID took the applicant to their camp and beat him because of his support for the TNA. The applicant’s mother and wife were outside the camp crying and at midnight he was released. The applicant tried to lodge a complaint with the police but they refused to take a written statement.

   •   On 26 September 2012 the applicant departed Sri Lanka by boat. When the CID came to the applicant’s house looking for him, his wife said he had gone to Colombo.

   •   On 7 May 2013 the applicant saw a news article that indicated his neighbour had been shot. The applicant's wife told him that on the same day a person with their face covered had come to their door and asked about him.

   •   On 26 December 2015 two people, who had their faces covered, were carrying guns and spoke Sinhala, came to the applicant’s family home. The applicant believes they were CID. They stated if they were given 50,000 rupees they would stop coming to the house, but would still continue to pursue the applicant.

   •   The CID are still interested in the applicant and their camp is less than a kilometre from his home.

   •   The applicant fears the Sri Lankan authorities, will detain, interrogate, torture or kill him because: he is a Tamil from the Eastern Province; in 1993 the CID killed his father; in 2000 Brother T joined the LTTE; from 2000 the applicant assisted the TNA; and in 2012 he departed Sri Lanka illegally and sought asylum in Australia.

4. On 4 November 2016 a delegate made a decision to refuse to grant the applicant a protection visa and the matter was then referred for review by the Authority under pt.7AA of the Migration Act 1958 (Cth).

5. On 28 November 2016 the applicant sent a document entitled “Statutory Declaration” to the Authority which contained a number of claims that had not been made before, as well as submissions about the delegate’s decision and a number of documents in support of the applicant’s claims.  I note that that document, which was written in English, not a language in which the applicant is fluent, is said to have been witnessed by a lawyer, Babu Chokkappa. The relevance of that will become clear later in these reasons.

6. The Authority made its decision on 27 June 2017.  Its reasons are summarised in the respondent’s written submissions at[16]–[23] which I adopt for the purpose of this judgment:

   16.    On 27 June 2017 the IAA affirmed the decision to refuse to grant the applicant a SHEV. The IAA accepted the applicant’s statutory declaration as a submission and had regard to the letter from the applicant’s father-in-law accepting that it post-dated the delegate’s decision and there were exceptional circumstances justifying its consideration. The IAA found that there were not exceptional circumstances to justify consideration of the applicant’s new claims to be wanted in connection with a bomb blast and that his father was a LTTE member. It also declined to consider a news article and country information cited in the applicant’s submissions which predated the delegate’s decision. However, the IAA did have regard to new country information, being a DFAT country report on Sri Lanka, which was published after the delegate’s decision.

   17.    The IAA accepted the applicant’s identity as claimed. The IAA also accepted the circumstances surrounding the applicant’s father’s death. However, the IAA was not convinced that the circumstances of the father’s death were a factor in the CID’s treatment of the applicant because there was a gap of 18 years between the applicant’s father’s death and the time when the applicant claimed that the CID first became interested in him.

   18.    The IAA was prepared to accept the applicant’s claim that he was taken away and tortured in 2011 because of his brother’s involvement in the LTTE. However, it found this only occurred once and the CID had not visited the applicant’s house since 2011. The IAA found that Tamils do not now face harm in Sri Lanka for that reason alone and there was a lack of credible evidence to indicate the applicant was of interest to the Sri Lankan authorities at the time of his departure or that he will be on return. The IAA was not satisfied the applicant faces a real chance of harm on account of an imputed pro-LTTE political opinion, arising from family links.

   19.    The IAA accepted the applicant had provided basic level support for the TNA and assisted them in the 2010 and 2012 elections. However, the IAA did not accept the applicant had a profile to warrant the adverse attention claimed or that he had been warned or harmed by the CID or others due to his involvement, nor did it accept that the CID had been asking for him at his house or that his neighbour was shot arising from the CID looking for the applicant. Based on country information on the status of the TNA, the IAA did not accept the applicant faces a real chance of harm of because of any real or imputed political opinion arising from his support for the TNA.

   20.    The IAA did not accept did that the applicant would face harm due to having the same first name as the former LTTE leader, due to its general concerns about the applicant’s credibility.

   21.    The IAA reached an overarching conclusion that it did not accept that the applicant is of any ongoing interest to the CID or any other Sri Lankan authorities, or any paramilitary groups or any unknown persons for the reasons claimed.

   22.    The IAA accepted the applicant departed illegally and that he would be charged for illegal departure. However, the IAA found that the applicant would not face a real chance of serious harm arising from this, noting that although he may have once been of interest to the authorities due to his family’s LTTE connections, that was no longer the case, the fine would not constitute serious harm and he would not face serious harm during a brief period of detention. The IAA also found it would be a non-discriminatory law of general application. The IAA specifically considered this issue in considering complementary protection. It found that while Sri Lankan prisons do not meet international standards, any brief detention would not give rise to arbitrary deprivation of life, the death penalty or torture and there would not be an intention to inflict pain or suffering, or cause extreme humiliation. Nor would the fine amount to significant harm, and together the applicant would not face significant harm due to his illegal departure.

   23.    Otherwise, for similar reasons to its findings on persecution, the IAA found that there is not a real risk that the applicant will suffer significant harm if returned to Sri Lanka.

   (Citations omitted)

7. The applicant now seeks judicial review of that decision.

8. There are three grounds in the application. Before dealing with those grounds, I note that while the applicant appeared unrepresented today he informed the Court that the grounds of his application had been prepared by a lawyer, that is, by Babu Chokkappa, the same lawyer who had, at least, witnessed the Statutory Declaration that was sent to the Authority.  It was incumbent upon the lawyer, in those circumstances, to certify that there were reasonable grounds for believing that the migration litigation had reasonable prospects of success: see s.486I of the Act.

9. There was no such certification and the grounds in the application, for reasons which I am about to explain, never had any reasonable prospects of success.  That leaves the possibility that Mr Chokkappa has breached a number of provisions of the Migration Act.  I say “possibility” simply because he is not here to defend himself and it is not a matter that I am seized with today.  In any event, the involvement of the solicitor will have other consequences which I will come to.

10. The applicant did not file any written submissions in support of his grounds but made oral submissions at the hearing today.  Effectively, he said that the government that was in control of Sri Lanka at the time he left that country in 2012 had returned to power and effectively, that as pointed out by the Minister in his oral submissions, he is, in effect, seeking merits review of the Authority’s decision, not something which might give rise to, or establish jurisdictional error.  I return then to the grounds of the application.

11. The first two grounds are, in effect, to be read together and their contention is that the Authority failed to consider the applicant’s claim that he would be imputed with an LTTE profile and persecuted for that reason because of his family’s history with the LTTE.  The Authority however did deal with that claim.

12. It accepted a large part of the applicant’s claims concerning his family but found, at [28], on the basis of the information concerning the circumstances in Sri Lanka at the time, that there was a lack of credible evidence to indicate the applicant was at the time of his departure, or will be on return, of interest to the Sri Lankan authorities. In particular, it found that it was not satisfied the applicant faced a real chance of harm on account of an imputed pro-LTTE political opinion arising from his familial link to his father or brother should he return to Sri Lanka.

13. Once it is accepted, as it must be, that the Authority dealt expressly with that claim, grounds 1 and 2 could only make any sense if they are really an assertion that the Authority ought to have accepted his claims rather than rejecting them. However, that in itself, is not a matter that constitutes jurisdictional error and again only goes to the merits of the Authority’s decision, something which is beyond the power in this Court. 

14. The third ground is that the Authority “failed to engage itself in WZAPN qualitative assessment”.  The reference to “WZAPN” I take to be a reference to the decision of the High Court in Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610. That case concerned an issue arising from an earlier decision of North J in the Federal Court of Australia on appeal from a decision of this Court construing s.91R(2) of the Act to mean that where there is an acceptance that there might be, or there is a real chance of a threat of detention or any detention, then in and of itself that must constitute serious harm and therefore bring the person within the definition of a “refugee” depending on the reasons for that harm. The High Court rejected that construction finding, at [45], that what is always required in determining what amounts to persecution (within the meaning of what was then s.91R) and serious harm, was a qualitative analysis of the actions and the harm to which those actions might give rise.

15. The Authority was alive to that decision it seems not simply because it was something referred to in the Statutory Declaration of 28 November 2016 but also because it stated, at [48] of its reasons, that the question of whether a loss of liberty that the applicant might face upon return to Sri Lanka as an illegal departee, was a matter of qualitative judgment involving the assessment of matters of fact and degree as well as an evaluation of the nature and gravity of that loss of liberty. Indeed, the Authority, in a footnote, referred expressly to the decision of WZAPN.  Cognisant then of the proper test, the Authority proceeded to state its conclusions about the type of detention and other treatment that might be faced by the applicant for the reasons he claimed upon return to Sri Lanka but, in its analysis, concluded that none of those matters amounted to serious harm.  That was both in the context of the refugee criterion in sub-s.36(2)(a) and the complementary protection criterion in sub-s.36(2)(aa).

16. Ordinarily, in the case of an applicant who is unrepresented the Court might be expected, at some level, to examine the balance of the Authority’s reasons to determine whether there is something of an obvious nature, legal or factual, that might give rise to a reasonable argument that the Authority or other decision-maker has fallen into jurisdictional error.  The purpose of the Court doing that is to balance, as far as it is possible and as far as is fair, the inequality that otherwise appears when one side is represented and the other is not.

17. In this case, as I have said, the applicant was in fact represented at some level.  Sitting behind these proceedings was a lawyer and a registered migration agent who was involved, at some point, in advising the applicant concerning the review before the Authority and in the preparation of the application to this Court.  For that reason, even though there is a possible argument that the Authority may have taken an overly narrow view of s.473DD of the Act in at least [5] and [7] of its reasons, I do not propose to examine that in any detail.

18. It suffices to say, for present purposes, that I accept the submissions for the Minister that on the face of those paragraphs the Authority had regard to what it considered might be relevant to determining whether there were exceptional circumstances within the meaning of s.473DD(a).  That is essentially a question which turns on a close analysis of the reasoning in each case, as was implicit in the reasons of the Full Court of the Federal Court in AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111.

Conclusion

1. I am not satisfied that there is any jurisdictional error in the Authority’s decision.  For that reason, the application must be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 21 November 2018