DCP16 v Minister for Immigration

[2019] FCCA 57

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCP16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 57

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – whether the Authority failed to consider claims of the Applicant – whether the Authority’s finding was illogical or unreasonable – whether it was legally unreasonable for the Authority not to obtain new information from the Applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473DC

Cases cited:

ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404

SZTJY v Minister for Immigration and Border Protection [2016] FCA 1185

Applicant: DCP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2278 of 2016

Judgment of: Judge Hartnett

Hearing date: 18 October 2018

Delivered at: Melbourne

Delivered on: 16 January 2019

REPRESENTATION

Counsel for the Applicant: Mr Maloney

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2278 of 2016

DCP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant proceeds on an amended application filed 6 October 2017 which contains four grounds of judicial review.

2. The Applicant submits that jurisdictional error attends the decision of the Second Respondent, the Immigration Assessment Authority (‘the Authority’), made 26 September 2016 whereby the Authority affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection (subclass XE-790) Safe Haven Enterprise Visa (‘SHEV’) on the basis the Applicant did not satisfy the criterion for the grant of a protection visa under ss.36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).

3. The First Respondent submits no jurisdictional error attends the decision of the Authority and that the application should be dismissed. Both parties seek costs.

4. The grounds of application, as accurately summarised in the Applicant’s submissions, are as follows:-

   “6.1 The Authority failed to consider the Applicant’s claims with respect to the physical and attempted indecent assault of his wife in June 2012, and the harassment of his wife by telephone after the Applicant’s departure, prompting her to disconnect her phone and move to Eravur.

   6.2. The Authority failed to consider whether the Applicant faced a real chance or risk of serious or significant harm as a result of continued extortion, or else failed to perform its statutory task in considering this aspect of the Applicant's claim.

   6.3. The Authority’s findings that the Applicant, having been charged under the Sri Lankan Immigrants and Emigrants Act (IEA), could (i) secure bail (and have a family member stand as guarantor for that purpose) and (ii) pay any fine imposed, were illogical or unreasonable.

   6.4. Further to 6.3: in circumstances where it was not logically open to conclude that the Applicant would be able to secure bail and pay any fine imposed under the IEA, the Authority's failure to exercise its discretion to get new information about these matters from the Applicant under s 473DC of the Migration Act 1958 (Cth) (Act) was unreasonable.”

5. The Applicant relied upon his amended application; an affidavit affirmed by Sarah Louise Fisher on 27 September 2018 to which is annexed a true copy of the transcript of the Applicant’s protection visa interview held on 25 July 2016; and submissions filed 27 September 2018. The First Respondent relied on submissions filed 11 October 2018. The Court had also before it the evidence contained in the Court Book.

History

1. The Applicant was born on 2 February 1972. He is a citizen of Sri Lanka. He is of Tamil ethnicity and Hindu religion. He arrived in Australia on 26 August 2012 as an unauthorised maritime arrival.

2. The Applicant applied for the SHEV on 9 March 2016. On 12 August 2016 a delegate of the First Respondent refused to grant the Applicant a SHEV. On 18 August 2016 the proceeding was referred to the Authority.

3. The Applicant’s claims were as contained in a statutory declaration dated 9 August 2013, and a further statutory declaration dated 22 February 2016. Those claims were summarised by the Authority in its Decisions and Reasons (‘the Decision Record’), at paragraph 4 as follows:-

   “…

   - The applicant is a Tamil from Batticaloa, Eastern Province, Sri Lanka. During the civil war the area was controlled by the LTTE. The applicant was detained twice during the civil war, in 1992 and 1998.

   - The applicant was a successful goldsmith with a shop in Colombo.

   - In 2009 he was threatened by people from the paramilitary Karuna group who demanded money from him.

   - The applicant was the victim of further extortion threats. The Pillaiyan group, another paramilitary group, demanded six lakhs; the applicant negotiated a payment to the group of two lakhs. In October 2011, the Karuna group demanded 25 lakhs and the applicant was threatened with death if he did not pay. He negotiated to pay ten lakhs over a two month period.

   - The applicant was a member of the Goldsmith Association and took part in human rights demonstrations protesting the disappearance of Tamils.

   - On 20 June 2012 the applicant was threatened by people over his involvement at demonstrations. These people claimed to be from the CID but the applicant is not sure that they were from the CID. These people demanded 50 lakhs, again on threat of death if he did not pay. He negotiated to pay them 30 lakhs two months later.

   - The applicant reported this incident to the police. The same people came back, physically assaulted him and abused him for involving the police.

   - Following this incident the applicant made arrangements to leave Sri Lanka in fear of further harm.

   - Since he has left Sri Lanka the CID have visited the family home twice looking for him and on these occasions they abused and threatened his wife and said they will get the applicant when he returns.

   - The applicant fears that if he returns to Sri Lanka he will be detained and harmed because he was involved in demonstrations and complained to the police about the CID. He states that he cannot obtain protection from the authorities as his fear emanates from an element of the Sri Lankan authorities and the authorities do not give any protection to Tamil people. His fear relates to all of Sri Lanka.

   - As he has left Sri Lanka illegally without a valid passport and has claimed asylum he will be detained and may face punishment on return.”

4. The Authority’s findings are accurately set out in the submissions of the Applicant and adopted in these reasons. The Authority:-

   “5.1. was not satisfied that the Applicant faced a real chance of serious harm because of his experiences during the Sri Lankan civil war;

   5.2. was not satisfied that the Applicant faced a real chance of serious harm on the basis of his Tamil ethnicity alone, given improved circumstances for Tamils in recent years;

   5.3. was satisfied that the Applicant was part of the Goldsmith Association and that he attended demonstrations, but found that his profile as a ‘simple observer and participant’ in those demonstrations was inadequate to attract adverse attention from the authorities;

   5.4. was satisfied that the Applicant’s claims of past extortion were plausible, and owing to credible reports, could not ‘discount that the applicant could continue to be subject to extortion if he returns to Sri Lanka and continues to work as a goldsmith’; but found that the chance the applicant would face ‘violence or other physical threat’ was remote;

   5.5. was not satisfied that the people who visited the Applicant in 2012, and subsequently visited his wife, were CID, but found they were likely extortionists, and that, ‘[a]s above, I find that the chance the applicant would experience violence or physical harm from these extortionists is remote’;

   5.6. following 5.5 above, found that because the extortionists were not CID members, there was no real chance that the Applicant’s complaint to the police would cause him to be targeted by the CID;

   5.7. accepted that the Applicant may be questioned, arrested, charged, remanded and fined as an illegal emigrant; but concluded that the Applicant would not face serious harm by virtue of the ‘brief period of detention required to complete the process of investigation, or while on remand’, which would in any case follow from a law of general application; and that the payment of any fine would not subject him to serious harm. Further, the Authority was not satisfied the Applicant faced a real chance of serious harm as a failed asylum seeker;

   5.8. with respect to the complementary protection criteria, referred to its findings with respect to s 36(2)(a), and added that the Applicant would not face significant harm as an illegal emigrant or failed asylum seeker, because he does not have a profile that might attract particular mistreatment and because a brief period in detention and the imposition of a fine would not produce a real risk of significant harm.”

Consideration

Ground One and Two

1. In the Applicant’s statutory declaration dated 9 August 2013 the Applicant, relevantly, claimed to fear harm from the Karuna group and the CID. He said that he was a goldsmith, and that on occasions members of those organisations had extorted money from him by the threat of violence. He said that, on 21 June 2012, he lodged a complaint with the police about a recent incident. He then said as follows:-

   “14. The next day I went to Puttalam. On 23 June 2012 when I was at my home in Puttalam, at around 8 pm some people came and knocked on my door. It was the same CID people that had come to my store with some other people, altogether it was 5 people. They asked me if I had made a complaint to the police and why I had done this. They said we warned you not to go to the police. They slapped my face and hit me in front of my wife, my children and my in−laws. My 7 year old son was also crying and one of the CID members pulled my son. They repeated their demand for 50 lakhs. They also hit my wife and tried to indecently assault her. I promised them that I wouldn’t make any further complaints to the police and I would pay the 50 lakhs.

   15. I was very afraid to return to Colombo, already they know my home address as well as my phone number. After that, I tried to collect some money but I couldn't. I received information from one of my friends that there was a way of going to Australia and I left my country. I left on 7 August 2012 at midnight. I couldn't leave immediately because it took some time to arrange my journey to Australia and raise the money. During this time, the CID people came to my shop a couple of times to ask if the money was ready yet but I said I was still trying to raise enough money to pay them.

   16. Now that I have left Colombo without paying the CID, I am worried that the CID will harm my family. When I was in Christmas Island, I was informed by my wife that these people have been to my house twice and said that they know I had gone to Australia. They hit my wife and tried to misbehave with her. They told my wife that if I return to Sri Lanka I will face problems at the airport.”

2. Subsequently, in the Applicant’s further statutory declaration dated 22 February 2016, the Applicant stated that he continued to rely on his initial statutory declaration. He also, relevantly, stated:-

   “5. In Clause 16 of the Statutory Declaration of 9th August 2013 I explained that after I left Sri Lanka, CID Officers went to my wife's home twice and threatened her. They also harassed her on the telephone. Since then, she has since moved back to Eravur to be close to her brother where she feels safer and has disconnected the telephone so she cannot be harassed further.”

3. On 25 July 2016, the Applicant was interviewed by the Department of Immigration and Border Protection (‘the Department’) in relation to his SHEV application. The Applicant gave further evidence about the alleged incident in June 2012, and his wife's interactions with the authorities since he left Sri Lanka.

4. The Applicant submits the above stated claims were ‘distinct and substantial’ and were not considered by the Authority.

5. The Court finds the Authority did consider each of the claims made by the Applicant, and rejects the submissions made by the Applicant in this regard.

6. The Applicant’s claims as to extortion threats and the CID visiting his home, following his departure from Sri Lanka, and his claims that the CID on those occasions abused and threatened his wife, were claims specifically recognised by the Authority in paragraph 4 of the Decision Record.

7. The Authority went on to make specific findings of fact in respect of the evidence before it, as set out in paragraphs 10, 11 and 13 of the Decision Record, as follows:-

   “10. The applicant’s claim to have been the victim of a number of extortion threats is plausible considering he was a successful goldsmith and country information indicates that paramilitary groups have resorted to criminal activities and extortion to raise funds. However, I find that there has been a significant change in Sri Lanka since the applicant departed in 2012 and I am not satisfied that his fear of facing serious harm on return is well-founded.

   11. I accept that Tamils have in the past had concerns about engaging with the authorities, however I place significant weight on the improved security situation since 2012. There are indications the paramilitary groups have renounced their paramilitary activities although DFAT are aware of credible reports that these groups continue to be active in criminal activity. Country information indicates that the police are pursuing criminals from the disbanded Karuna group and other criminal groups involved in extortion. Groups such as the Karuna group are increasingly becoming part of the mainstream and the Karuna group itself is now a registered political party (Tamil Makkal Viduthalai Pulikal). The authorities are taking steps to prosecute members of paramilitary groups for past crimes, as evidenced by the arrest in 2015 of two TMVP members wanted for past crimes. The indications are that the police are pursuing crimes of extortion and related threats and kidnappings. Vavuniya police arrested two armed gangs involved in abductions and ransoms. I note the credible reports that paramilitary groups are involved in criminal activities and I cannot discount that the applicant could continue to be subject to extortion if he returns to Sri Lanka and continues to work as a goldsmith. However, the weakening of the paramilitary groups and their renunciation of paramilitary activities, their move into the mainstream and the prosecution of past members for violent crimes leads me to find that the chance the applicant would face violence or other physical threat is remote. I find there would not be a real chance that the applicant would suffer serious harm on return to Sri Lanka.

   …

   13. …I find that it is more likely that the people involved in the June 2012 visits were not from the CID, but rather persons seeking to extort money from the applicant. Similarly I find that the subsequent visits to the applicant’s wife were not from the CID but were related to these extortion attempts. As above, I find that the chance the applicant would experience violence or physical harm from these extortionists is remote and I find there would not be a real chance that the applicant would suffer serious harm on return to Sri Lanka.”

8. As submitted by the First Respondent, the Authority clearly considered the Applicant’s claim to have a well-founded fear of harm in the future from persons who had harassed and threatened him and his wife in the past. It found that the Applicant’s fear, while it may be subjectively held, was not well-founded. It did so on the basis of country information to the effect that the incidence of extortion from paramilitary groups had significantly subsided in recent years, to the point where the risk of the Applicant suffering such harm in the future was remote.

9. The Authority not referring to an item of evidence in its Decision Record does not lead to the conclusion that the Authority failed to consider it. As the Applicant acknowledges, the Authority is not required to engage in a “line by line” refutation of all the evidence provided by an applicant. It is probable that the Authority did not refer to the assault on the Applicant’s wife and/or the harassment by telephone and visiting of her specifically, because it was not necessary to do so given its reasons for not being satisfied that the Applicant had a well-founded fear of harm in the future. That satisfaction derived from country information before the Authority that went to the likely extortion of Tamils.

10. The Authority found that the June 2012 and subsequent visits to the Applicant’s wife were not from the CID but were related to the extortion attempts. The Authority found, as can be seen in paragraph 11 of the Decision Record (at paragraph 16 above), that the threat to the Applicant of extortion in the form of violence or the threat of violence and physical threats in the future was below that of a real chance, although was not no chance. Rather, in the context of the country information before the Authority, the possibility was remote.

11. No jurisdictional error is evident in respect of these grounds.

Grounds Three and Four

1. The Authority accepted that the Applicant had departed Sri Lanka illegally, that he may be arrested and charged on return.

2. With respect to the “refugee” criterion in s.36(2)(a), the Authority stated:-

   “17. …Returnees may be arrested and charged under the I&E Act and remanded in custody at the airport or at a prison, while waiting to be brought before a magistrate. This remand period would normally be twenty four hours but may be up to four days if detention over a weekend is involved. If a person pleads guilty, they will be fined and discharged. Returnees who plead not guilty are immediately granted bail on personal surety, though they may be required to have a family member act as guarantor. Bail conditions may be applied, but generally these are not applied. The returnee will return to court for the hearing of the case.

   18. I accept that 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 and if he were to have difficulty meeting the cost of the fine there is scope to request that the fine be paid by instalment.”

3. And with respect to the ‘complementary protection’ criterion in s.36(2)(aa), the Authority stated:-

   “27. I accept that the applicant may be subjected to poor prison conditions during any possible brief period of detention but country information confirms that this is due to overcrowding, poor sanitation and lack of resources. It does not amount to the death penalty, arbitrary deprivation of life or torture. Further, the evidence does not indicate there is an intention to inflict pain or suffering or extreme humiliation. In the circumstances, I am not satisfied the poor prison conditions to which the applicant may be subject, of themselves, constitute significant harm as defined under ss.36(2A) and 5 of the Act. For these reasons, I am not satisfied the applicant will face a real risk of significant harm during any possible brief period in detention.”

1. That reasoning, it is submitted by the First Respondent, does not betray jurisdictional error as alleged by the Applicant.

2. The Applicant submitted that jurisdictional error attends the decision of the Authority in respect of these grounds because:-

   “23. It is clear that the Authority's finding that the Applicant did not face a real risk of significant harm (and a fortiori, its finding that any harm suffered in prison would not arise from intention) was predicated on its finding that he would be able to secure bail and pay a fine, and thus would avoid a protracted period in custody. As such, the latter findings are dispositive. Further, and with respect to bail in particular, the Authority's finding that the Applicant will be able to get bail must be thought to entail the antecedent finding that a member of his family would stand as guarantor for that purpose.

   24. However, these findings were not logically open on the evidence before the Authority. There was no evidence before the Authority as to whether the Applicant would have sufficient means on his return to Sri Lanka to pay a fine. Indeed, his undisputed claims that he left Sri Lanka because he was unable to pay extortionists, and that he may be extorted upon return, militate against the finding that he would have sufficient means.

   25. In addition, there is no evidence before the Authority as to the capacity of anyone in the Applicant’s family to act as a guarantor. Here, the reasons of Charlesworth J in ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 are apposite:-

   “There is no reference in the reasons of the Tribunal to any fact, matter or circumstance upon which it relied in support of its assumption that the appellant personally had a relative who could and would provide surety for his bail. The Tribunal has, in my opinion, impermissibly reasoned that the general country information concerning the availability of bail in the event of a relative providing surety supported a specific factual finding, personal to the applicant, that surety could and would be given by a relative in his particular case ... There is, in that regard, an error in the Tribunal’s reasoning in that the finding was not logically supported, and not capable of being supported, by the material before the Tribunal. Expressed another way, it was not reasonably open to the Tribunal to find that a relative of the appellant would provide surety for his bail.”

   26. These considerations apply, mutatis mutandis, in the present case.

   …

   29. the Authority’s failure to exercise its power under s.473DC of the Act to get information from the Applicant as to the capacity of a family member to be guarantor and his capacity to pay a fine was legally unreasonable, in circumstances where the delegate had failed to properly address or provide the Applicant with an opportunity to comment on these matters; and where evidence on these matters was required, for the above reasons, to logically support the Authority’s findings as to whether the Applicant faced a real risk of significant harm.

3. There is no proper basis for any challenge as to the Authority’s finding concerning any fine which may be imposed upon the Applicant. The Authority found that if the Applicant pleaded guilty, a fine would be imposed and he would be released. The Authority found that there was no real chance that the Applicant would receive a custodial sentence. That left the question of whether the Applicant would be remanded during a bail process. The Authority found that the Applicant, if he pleaded not guilty, would be released on his own surety. No assumption should be made that providing surety involved the payment of a sum of money, [1] by the Applicant, nor by any family member if it could be said that the Authority positively found there was a real chance that a family member could be asked to, or would become a guarantor, which the Court finds in any event, the Authority did not. This case is materially distinguishable on the facts from ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419. There was no information before the Authority that a family member would be unable or unwilling to act as a guarantor if required.[2] It was not legally unreasonable for the Authority not to exercise its discretion under s.473DC of the Act to obtain ‘new information’ in this regard from the Applicant or any other witness. No requirement is made of the Authority in these circumstances under Pt 7AA of the Act.

   [1] SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404, 80.

   [2] SZTJY v Minister for Immigration and Border Protection [2016] FCA 1185, 79.

4. The delegate had found the Applicant might be in remand for a few days. The Applicant made no challenge to that finding before the Authority. He gave no further evidence about the import, if any, of the duration for which he might be in remand. The Authority did not find that the duration of the Applicant’s remand depended on his ability to pay a fine.

5. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 the majority of Kiefel CJ, Nettle and Gordon JJ said at paragraph 27:-

   “An intention of a person as to a result concerns that person’s actual, subjective, state of mind. … knowledge or foresight of a result is not to be equated with intent. Evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn, but foresight of a result is of evidential significance only. It is not a substitute for the test of whether a person intended the result, which requires that the person meant to produce that particular result and that that was the person’s purpose in doing the act.”

6. There is no evidence that the authorities had as a specific purpose and intent, the causing to the Applicant of harm. No inference of intent can be drawn in the factual circumstances of this case.

7. These grounds also cannot succeed.

8. The application shall be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  16 January 2019