DCH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 102

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DCH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 102

File number(s):

SYG 2192 of 2017

Judgment of:

JUDGE STREET

Date of judgment:

30 September 2021

Catchwords:

MIGRATION – Immigration Assessment Authority – whether the Authority denied the applicant procedural fairness in the review – whether the Authority failed to consider the whole of the applicants claims – no jurisdictional error made out – application dismissed

Legislation:

Migration Act 1958 (Cth), ss 5H(1), 36(2)(a), 36(2)(aa), 473B, 473CB, 473DD, 476

Cases cited:

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

AWT15 v Minister For Immigration and Border Protection [2017] FCA 512

Division:

Division 2 General Federal Law

Number of paragraphs:

39

Date of hearing:

2 August 2021

Counsel for the applicant:

Mr M Jones

Solicitors for the applicant: 

Parish Patience Immigration Lawyers

Counsel for the respondent:

Mr C Hibbard

Solicitors for the respondent:

HWL Ebsworth

ORDERS

SYG 2192 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DCH17
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	30 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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 STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under part 7AA of the Act, made on 13 June 2017 affirming the decision of a Delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise (Subclass 790) Visa (“the Visa”).

   BACKGROUND AND APPLICANT’S CLAIMS

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.  The applicant was found to be a Tamil Hindu from a particular district in the Northern Province. 

3. On 14 November 2012, the applicant arrived in Australia as an unauthorised maritime arrival.  The applicant claimed to fear harm from the Sri Lankan authorities including the Criminal Investigation Department (“CID”) and the army due to his ethnicity, his age and prior involvement with the Liberation Tigers of Tamil Eelam (“LTTE”) imputed from his relationship with family members linked to the LTTE and for providing food to the LTTE casualties during the war. 

4. On 17 March 2017, the Delegate found that the applicant failed to meet the criteria for the provision of the Visa.  On 23 March 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review.  The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information.  The applicant did put on submissions and new information which were expressly referred to in the Authority’s reasons.

5. The Authority identified the background to the visa application having regards to the material referred to it by the secretary under s 473CB of the Act. The Authority identified new information and on a fair reading of the Authority’s reasons, the Authority took into account the whole of the provisions of s 473DD of the Act, in finding that there were not exceptional circumstances to justify considering the new information.

   THE AUTHORITY DECISION

6. The Authority summarised the applicant’s claims including, in particular, an incident that occurred in February 2012 where the applicant and a friend were sexually assaulted in a jungle area and were released when an elderly man from the village intervened.  The applicant identified that news of the sexual assault encounter with the army officers spread through the village, and that he was mocked and teased by other men, and that within a couple of months of the incident the applicant had attempted suicide as a result but was stopped by his brother.  On 28 October 2012, the applicant left Sri Lanka illegally by boat. 

7. The Authority identified the relevant law including in an attachment of applicable law.  The applicant identified the incident that occurred in 2012 in his statutory declaration under a heading “February 2012” from paragraphs 25 to 36, the material part of which is from paragraphs 25 to 33. 

8. The applicant also identified at the commencement of the statement, at paragraph 14, that if forced to return to Sri Lanka he fears he will be arbitrarily detained, seriously physically and sexually harmed, tortured and killed by the Sri Lankan authorities and security forces.  The applicant stated that he fears this will happen because he is a young Tamil male from the Northern Province and because he will be viewed as having an anti-government, pro-LTTE political opinion.

9. In the statutory declaration under the heading “fear of return to Sri Lanka”, the applicant stated that he feared serious harm because of his Tamil ethnicity as well as his real and imputed political opinion of being considered as supporting the LTTE. The applicant further stated that he feared he would be violently interrogated, tortured and beaten on return.  The applicant identified that he feared he would be viewed as in opposition of the Sri Lankan government, as well as referring to his illegal departure and fear that he will be seriously harmed for these combined reasons, especially given the previous adverse mistreatment and interest in the applicant and given the close connection to relatives who are actively involved in the LTTE. 

10. The applicant at paragraph 46, expanded on his fear that if forcibly returned, he would be detained and interrogated by the authorities. The applicant stated that he feared he would be violently interrogated, physically harmed and sexually humiliated again, and made further reference to his involvement with the LTTE.  The applicant also feared being imprisoned and that he would be targeted and physically and sexually harmed by the authorities and other inmates given his alleged adverse profile.  The applicant referred to the Sri Lankan authorities’ security forces being corrupt and inefficient and referred to himself as having suffered serious physical and sexual mistreatment by the Sri Lankan security forces before he fled.  The applicant referred to having been humiliated and ridiculed and that he was offered no support or help and tried to commit suicide after the sexual harm that the army officers did to him. 

11. The applicant identified that he feared being harmed further and that he would be targeted and harmed by the authorities and the security forces anywhere that he tried to live.  The Authority referred to the applicant’s entry interview and the applicant’s explanation for not raising a claim concerning the sexual assault because he felt ashamed and embarrassed about raising the experience with a female interviewer.  The Authority was willing to accept that the applicant’s responses may have been affected by past traumatic events and given the applicant’s youth and mental state at the time of the interview, accepted the applicant’s explanation for why these issues were not raised earlier at the time, and found the omission did not adversely affect the applicant’s credibility.

12. The Authority accepted that the applicant’s three relatives were LTTE cadres who died during the war while fighting the Sri Lankan army. The Authority accepted the applicant’s claim that a relative may have held a senior role in the LTTE and that another relative was involved in coordinating missions and training other soldiers.  The Authority accepted that the applicant and his family maintained a close relationship with a particular relative and other relatives and that it was plausible that one particular relative could come to the family to seek assistance.  The Authority found, however, a number of inconsistencies in the applicant’s testimony about the involvement in providing food to the LTTE cohort.  The Authority found the inconsistencies undermined the applicant’s credibility in relation to that LTTE support. 

13. The Authority accepted that the applicant’s family was asked for assistance and provided support to an LTTE cohort that was operating in the jungle area near their house by regularly providing food.  The Authority accepted that the assistance may have been provided over a number of months, but given the inconsistencies about the duration and the means of identifying delivery sites, his age, and that he was attending school at the time, and the absence of interest from the authorities in him when they were questioning his relative, the Authority was not satisfied that the applicant was an active or prominent participant in the supply of food to the LTTE cadres.  The Authority found, rather, that it was another relative who was mainly involved. 

14. The Authority referred to an incident in October in 2011, where the applicant claimed that the  was taking the family’s generator battery to be charged with a particular person when  he was questioned at a checkpoint, taken to the army camp and detained and interrogated, and on release was required to report to the army camp.  The Authority referred to the applicant’s clarification of the Delegate that he was questioned on average four times in a month and that it occurred inside the office at a checkpoint.  The Authority did not accept the applicant’s suggestion that he was of interest because the authorities had gained new information, and found that it was the family’s transport of the generator battery that triggered and promoted the investigation in relation to the applicant’s background. 

15. The Authority accepted the applicant may have been required to sign in and questioned as regularly as the applicant claimed at the checkpoint.  The Authority took into account the limited encounters with the authorities prior to October 2003 and that the applicant was not detained for lengthy periods, charged or placed in a rehabilitation centre, and found that this indicates that the applicant was not considered by authorities to have a profile for LTTE involvement, despite a number of relatives having former connections with the LTTE, including a relative who was suspected of supplying the LTTE with food in 2008.

16. The Authority, like the Delegate, accepted the applicant’s account of being sexually mistreated and sexually assaulted by six army officers in February 2012.  The Authority referred to it as being plausible that the applicant was targeted by army officers in his local area.  The Authority referred to the applicant’s account, identifying that the incident occurred in isolated farmland and that the applicant and a particular person were set upon by army officers by chance, rather than being sought or summoned for questioning.  The Authority found that the circumstances suggested the treatment by the officers was not prompted by reason of suspecting the applicant of being involved with the LTTE, but was rather due to factors such as his age and ethnicity, and the ability for the officers to act with impunity at the time.

17. The Authority referred to the applicant’s ongoing psychological trauma from the incident and in the months following in which the applicant was the recipient of harmful, at least of hurtful, and negative comments from other male members of his village.  The Authority took into account that the applicant had been referred for assistance and to receive counselling.  The Authority accepted that during the following months, the applicant continued to be monitored by the local army and CID officers and considered it plausible that the change of habits triggered inquiries by the authorities, and that he was questioned and subjected to further regular reporting.

18. The Authority accepted that the applicant was mistreated and threatened with receiving the same treatment as a particular person, and accepted that the applicant was informed that the particular person was killed and his body dumped.  The Authority found that whilst the Sri Lankan authorities appreciated the applicant’s relationship with the particular person and used this to intimidate the applicant, the Authority was not satisfied that particular person’s treatment by the authorities and reference to that particular person, gives rise, of itself, or is indicative of a real chance that the applicant is at risk of harm. 

19. The Authority referred to the applicant’s unsuccessful attempt to leave Sri Lanka in 2012 when he was intercepted, interrogated, released and ordered to report monthly to a police station.  The Authority accepted that the applicant was convicted under the Immigration and Emigration Act for attempting illegal departure in August 2012, and that part of his sentence was a fine and requirement that he report to a police station monthly.  Accordingly, the Authority said that there may have been attempts made by the Sri Lankan authorities to locate the applicant in 2015 and 2016 in respect of that breach. 

20. The Authority referred to the applicant and a relative being suspected of LTTE assistance in the jungle in 2008, but took into account that the applicant was released after three or four hours and  ordered to report back again in a month.  The Authority accepted that given the short duration of questioning and relative infrequent reporting requirement, the Sri Lankan authorities may have been initially suspicious of the applicant, but was not satisfied that following the interview the applicant was considered by them to be involved with the LTTE.  The Authority referred to the targeting and mistreatment and harassment since 2011 and found that the applicant was not treated as though he was considered to be involved in the LTTE. 

21. The Authority referred to the applicant having experienced mistreatment by local officers in his home area.  Since the applicant’s departure, the applicant identified a relative who continues to be required to report and is regularly interrogated by local army and CID.  The Authority was not satisfied that local army and CID officers had been interrogating the applicant’s relative since the applicant’s departure in 2012, including questioning him about the applicant’s whereabouts.  The Authority was not satisfied the applicant would be considered by the authorities to be connected with high profile former LTTE members who remain wanted.

22. The Authority found that the applicant did not have a profile for LTTE involvement or would otherwise be considered a security or political risk by the Sri Lankan authorities.  The Authority found that the applicant would not be targeted or subject to processes on re-entry to Sri Lanka that would be different from the usual procedures.  The Authority was not satisfied that the financial penalty would amount to serious harm in relation to his illegal departure.  The Authority was not satisfied the applicant faced a real chance of serious harm on the basis of being a returned asylum seeker and/or for illegal departure.

23. The Authority referred to having considered the applicant’s claims cumulatively in respect of his profile as a young, male Tamil from the Eastern Province, who is imputed with being involved in the LTTE arising from having relatives linked to the LTTE, and who were former LTTE cadres and for being suspected of providing food to the LTTE during the war, and that he will be a returning asylum seeker who departed the country illegally with a prior conviction for departing the country illegally, and in breach of Court conditions to report to a particular location. 

24. The Authority expressly referred to having weighed the applicant’s profile as a person with significant connections to former LTTE cadres, who was targeted, harassed and questioned by local army and CID officers on suspicion of involvement with the LTTE from October 2011 until the applicant’s departure in October 2012, and that the applicant was sexually assaulted by a number of local army officers,  against his personal circumstances which are counter-indicative that he held a profile with the Sri Lankan authorities for LTTE members or support beyond his local area.  Factors in his personal circumstances that were taken into account included that he was not questioned by the authorities until 2011; that he was not detained or sent to a rehabilitation camp and that his near relatives were not detained in or sent to rehabilitation camps and continued to reside in a particular location, and that the applicant was not questioned by the CID in relation to LTTE involvement or connection with family members who were former LTTE members.

25. The Authority found that in assessing the applicant’s claims cumulatively, they did not give rise to a real chance of serious harm. The Authority found that the applicant did not meet the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria in s 36(2)(a) of the Act.  The Authority referred to complementary protection and whether the applicant met that criteria.  The Authority expressly referred to the reasoning the Authority had already stated and that the Authority had found there was not a real chance the applicant will face serious harm from the Sri Lanka authorities or a return to Sri Lanka on the basis of his age, Tamil ethnicity,  because he originates from the Northern Province or by reason of his  imputed LTTE involvement arising from his connection with family members who were formerly linked with the LTTE or suspected of assisting the LTTE by providing food or due to a particular persons  treatment by the authorities and their death in 2012.

26. The Authority was not satisfied that there were substantial grounds for believing as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there is a real risk that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria of s 36(2)(aa) of the Act and affirmed the decision under review. 

    THE GROUNDS

27. The Grounds in the originating application area as follows: 

    Ground 1

    1. The Authority denied procedural fairness to the Applicant.

    Particulars

    The Authority relied on a Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB. The making of the Direction in so far as it purports to limit submissions to no more than five pages and to return longer submissions to an applicant is beyond the power given in s473FB to make Directions. In relying on that Practice Direction the Tribunal denied the Applicant an opportunity to make proper submissions in support of the review.

    Ground 2

    2. The Authority failed to consider an issue implicit in the Applicant's claim to be owed protection obligations.

    Particulars

    The Authority accepted the Applicant's claim that he had been sexually assaulted by government officers due to factors such as his age and ethnicity and the ability of the officers to act with impunity at the time. The Authority failed to consider whether the Applicant would face such treatment in the future or would suffer humiliation and degrading treatment from other sources as a result.

    GROUND 1

1. Mr Jones, solicitor for the applicant, in relation to the first Ground, properly conceded, given the decision of the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, that this Ground must fail. Mr Jones formally contended that the decision was wrongly decided. This Court is bound by the Full Court’s decision. It was a proper concession for Mr Jones to make that this Ground must fail before this Court. Having raised the issue in this way properly preserves Mr Jones’s client’s Grounds to seek to re-agitate the decision if he seeks to do so on appeal. No jurisdictional error is made out by Ground 1.

   GROUND 2

2. It is Ground 2 that was the principal focus of Mr Jones’s submissions, including both in his written submissions and orally, the detail of the events that were identified by the applicant in relation to the sexual assault in his statutory declaration and the reasons of the Authority.  Mr Jones contended that there was an articulated or partially unarticulated claim arising on the materials and evidence before the Authority, that the applicant had a well-founded fear of persecution as a member of a social group.  That social group, although not articulated in Ground 2, was suggested in paragraph 20 of the written submissions, as being a social group of males who had engaged in sexual activities with other males whether willingly or not. 

3. Mr Jones also submitted, in the alternative, that the Authority should have considered in relation to complementary protection, whether the applicant would face possible harm at the hands of either the officers or his own community in the form of sexual assault or in the form of a serious impact on his mental health, driving him to commit suicide. 

   CONSIDERATION

4. The principle in relation to the Authority’s obligation is to consider all of the essential elements of a claim squarely raised by the material or evidence given by the applicant.  The Court accepts that the Authority’s reasons in this regard must be read fairly and as a whole and should not be construed minutely or with a keen eye for error, nor is the Authority required to refer to every contention made by the applicant in its written reasons.

5. The Court accepts that the Authority is only required to consider such claims where they are either:

   (a)The subject of a substantial, clearly articulated argument relying upon established facts, or

   (b)Clearly emerged from the materials.

6. The principles in relation to whether a claim clearly emerges are collected by the learned Barker J in AWT15 v Minister For Immigration and Border Protection [2017] FCA 512 at [67] and [68], relevantly:

   (a)such a finding is not to be made lightly;

   (b)the fact that a claim might be supervised from the materials is not enough;

   (c)to clearly emerge from the materials a claim must be based on established facts;

   (d)while there is no precise standard to determine whether an unarticulated claim has been squarely raised or “clearly emerges” from the materials “a Court will be more willing to draw the line in favour of an unrepresented party”;

   (e)understanding whether a claim clearly emerges from the materials cannot be assessed in a vacuum, and that consideration must be given to the way in which the applicant’s claims are presented over time.

7. The Court accepts the first respondent’s submissions that the applicant’s case focused on the risk of harm he would face by reason of being imputed with associated with the LTTE and his status as a returnee who fled Sri Lanka illegally.  The applicant’s claims in relation to the sexual assault were features of this claims and that is supported by the applicant’s description of the claims in his statement to the Delegate to which the Court has referred.  It is further supported by the Delegate’s summary of the claims and the applicant’s submissions to the Authority. 

8. The Court accepts the first respondents’ submission that the sexual assault and the earlier attempted illegal departure were relevant because they further allegedly raised the applicant’s risk profile with the Sri Lankan authorities.  The sexual assault and ongoing psychological trauma and hurtful negative comments were considered by the Authority in relation to the applicant’s profile.  There was no claim made that the applicant feared future negative mental health consequences as a result of comments by his local community, nor was there a claim advanced that the applicant feared harm from the officers who had assaulted him, which the Authority identified arose from the belief that those officers were able to act with impunity at that time.

9. On a fair reading, the Authority took into account the hurtful and negative comments from other male members of his village in considering the applicant’s claims to fear harm.  The Authority considered the impact of the sexual assault on the applicant’s profile in the local area.  The Authority on a fair reading, took into account the applicant’s claim of suffering future harm in the form of sexual assault in relation to the applicant’s profile not being sufficient to suggest he was at risk of harm due to his imputed involvement with the LTTE, and clearly took into account that the sexual assault occurred because of the ability of the officers to act in that way at that time.

10. The first allegation that the applicant belonged to a particular social group is made in the written submissions which articulates a social group not found expressly in Ground 2.  It is apparent the Authority took into account country information and that the country information “Silenced:  survivors of torture and sexual violence in 2015” was clearly taken into account in the context of accepting the applicant’s credibility, given the omission that occurred at the time of his entry interview.  The Court does not accept that there was a clearly articulated argument or claim that was advanced on established facts that the applicant was a member of a social group of males who had engaged in sexual activity with other males whether willingly or not.  The Court does not accept that such a claim clearly emerged from the materials. 

11. The sexual assault was raised in the context of the applicant’s profile and his fear of harm on the basis of his age, Tamil ethnicity and/or because he originates from the Northern Province, or from imputed LTTE involvement, all of which were the subject of dispositive adverse findings by the Authority. There is no failure by the Authority to consider the applicant’s claims as advanced to the Authority, and no other claim alleged by the applicant was the subject of a clearly articulated argument relying on the substantial facts. No other claim as alleged by the applicant emerges from the materials. There was no claim advanced that the applicant may commit suicide. There was no error in the determination of the complementary criteria as no such claims as advanced by Mr Jones clearly emerged on the materials. Accordingly, no jurisdictional error as mentioned in Ground 2 is made out. 

12. Accordingly, as no jurisdictional error is made out, the application is dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate: 

Dated:  30 September 2021