DDA16 v Minister for Immigration

[2018] FCCA 585

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDA16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 585

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (IAA) affirming decision of delegate not to grant applicant Safe Haven Enterprise Visa – whether IAA considered applicant’s claims – whether it was reasonably open to IAA not to accept part of applicant’s claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J(1), 36(2)(aa), 473DC(2)

Applicant: DDA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2885 of 2016

Judgment of: Judge Manousaridis

Hearing date: 8 March 2018

Date of Last Submission: 8 March 2018

Delivered at: Sydney

Delivered on: 16 March 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Mr T Galvin of MinterEllison

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2885 of 2016

DDA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Sri Lanka, seeks judicial review of a decision of the second respondent (IAA) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Safe Haven Enterprise visa (SHEV).

Claims for protection

1. In a statement that accompanied his SHEV application the applicant made the following claims for protection:[1]

   [1] CB63-66

   a)The applicant is Tamil and Christian.

   b)In 2011 the applicant’s relative, who was a former member of the Sri Lankan government and who had previously fled Sri Lanka for Switzerland, returned to Sri Lanka. The applicant’s relative contested the September 2012 provincial council elections and asked the applicant to “get involved and help the Tamil party (TNA – Tamil National Alliance)”. The applicant would assist his relative contest the election by “driving his van during the election campaign”. The applicant was his relative’s “personal van driver” for approximately 10 days in September 2012.

   c)The applicant made himself available “at any time of day and night during the period” to assist his relative and his party. A few days before the 2012 provincial elections were held, the applicant was driving the van with two other TNA supporters and the applicant was beaten by some unknown armed Tamil men.

   d)The applicant was too afraid to report the incident at the police station because Tamil armed groups “work closely with the authorities” and “the police do not take complaints made against the Tamil paramilitary groups seriously”. The applicant however continued to drive the van for his relative during the last few days of the election campaign as the applicant did not want to let his relative down.

   e)On a second occasion, while he was driving the van, the applicant was beaten by armed Tamil men. After this incident the applicant feared he could be killed so he fled to his aunt’s house which is located in another area.

   f)While the applicant was in hiding he learned that some armed Tamil men had gone to the applicant’s parents’ house and threatened the applicant’s father. These armed men told the father that if they saw the applicant they would kill him.

   g)It was after this incident that the applicant’s family decided to send the applicant to a safe country so his father made arrangements for the applicant to leave Sri Lanka by boat.

   h)The applicant believes he could be harmed by members of the Tamil armed groups, and that they would carry out the threats they had previously made, and the applicant may also be extorted by these groups.

   i)The applicant fears he could be imprisoned as he departed Sri Lanka illegally and harmed by authorities.

2. During the SHEV interview before the delegate on 14 July 2016 the applicant stated the following additional information[2]:

   a)On 16 September 2012 the applicant claims he was detained by police on “suspicion” and the police checked the applicant’s identity card and released him after one to two days.

   b)The applicant also presented a scar on his lower right shin.

   [2] CB123

3. The applicant also submitted a number of documents in support of his claims to have been involved with the TNA, including a letter from Mr S.[3]

   [3] CB87-89

IAA decision

1. The IAA found the applicant was not a member of the TNA and that he did not play an active role in the 2012 elections. The IAA noted the applicant had said at his entry interview with the Department of Immigration and Border Protection (Department) that neither he nor his family have been involved in politics or been members of political parties and the applicant said he did not support anyone in the election and his role was limited to driving the van.[4] Further, at his interview for the SHEV the applicant displayed only rudimentary knowledge of the 2012 elections and had very limited knowledge of the TNA. The IAA also had regard to the letter from Mr S where Mr S described the applicant as being an “ardent member” and “joint Coordinator”, which the IAA found was inconsistent with the applicant’s claims that the applicant was not involved in politics and the TNA. The IAA found this inconsistency damaged the credibility of Mr S’s letter and thus, lent it no weight.[5]

   [4] CB155, [10]

   [5] CB155, [11]

2. The IAA found there were significant internal inconsistences in the applicant’s claims that he had been accosted and beaten by Tamil men while working as a driver for a TNA candidate during the 2012 elections.[6] While it considered it plausible that the applicant may have acted as a driver for a ten day period for the TNA candidate, and that during that time, he may have been harassed by people representing opposing parties, the IAA ultimately did not accept the applicant was beaten by unknown Tamil men.[7] The IAA found that it followed from this conclusion that the applicant was not fearful of reporting the incident to the police[8] or that armed Tamil men came to the applicant’s family home looking for the applicant and threatening his life.[9]

   [6] CB155-156, [12]-[13]

   [7] C156, [13]

   [8] CB156, [14]

   [9] CB156, [15]

3. The IAA noted that these inconsistencies also brought into doubt the applicant’s claims that he had been detained for two days by the police on 16 September 2012.[10] The applicant claimed to have been in a particular place on this date; but he also claimed to have been hiding at his aunt’s home at the same time. During his SHEV interview the applicant recounted that the police detained him for two days, and asked the applicant many questions. The applicant, however, was unable to recall any of the questions the police asked him. This inability to recall any questions he was asked by the police, together with the inconsistencies in the applicant’s account of his whereabouts, led the IAA to find that the applicant was not detained and arrested for two days from 16 September 2012.[11]

   [10] CB156, [16]

   [11] CB156-157, [16]

4. The IAA accepted the applicant has a subjective fear of harm on the basis of being a Tamil from a former LTTE controlled area.[12] The IAA, however, took into account country information that indicated the improvement in the security situation for Tamils in Sri Lanka since 2009,[13] and that being Tamil alone does not give rise to protection needs.[14] The IAA accepted it was plausible that the applicant came to the attention of the police in 2012; but it was not satisfied that this points to a real chance of harm on return because it found that this incident took place at a time when general monitoring of the Tamil population was common and indicative of the regular register checks that Tamils experienced.[15]

   [12] CB157, [20]

   [13] CB157, [20]

   [14] CB157-158, [20]

   [15] CB158, [21]

5. From the applicant’s account the IAA found the applicant not to have been involved in politics or any political activities and, while the applicant had a role as a driver for a TNA candidate and he may be recognised as having driven for the TNA and, for that reason, be imputed with a political profile, the IAA found that this does not give rise to a real chance of any harm should the applicant return to Sri Lanka.[16]

   [16] CB158, [22]

6. The IAA accepted that the army visited the applicant’s family home and enquired about the applicant. Based on the applicant’s own evidence, however, the IAA found the army made no further visits and there is no indication that the army issued any threats and there has been no follow up since that visit.[17]

   [17] CB158-159, [23]

7. The IAA considered the applicant’s claims to fear extortion to be speculative because neither the applicant nor any of his family members have been subject to extortion demands in the past and the IAA considered there was no reason to believe that in the foreseeable future the applicant would be the victim of extortion demands.[18] The IAA also accepted the applicant has scars on his body but, noted that country information did not indicate that body scars alone are likely to attract the attention of authorities and therefore do not give rise to a real chance of harm to the applicant.[19]

   [18] CB159, [24]

   [19] CB159, [25]

8. The IAA accepted the applicant departed Sri Lanka illegally, that he would be liable to punishment on return under the Immigrants and Emigrants Act (Sri Lanka) (IE Act), and that, on return to Sri Lanka, the applicant would be subject to questioning and investigation. The IAA, however, relied on country information and findings it had already made to find the applicant has no adverse profile with the relevant authorities or any connection to the LTTE and, therefore, would not be subject to any mistreatment on arrival back in Sri Lanka that would extend beyond routine processing or which would amount to serious harm.[20] Further while the applicant was likely to be detained upon his return to Sri Lanka in conditions that do not meet international standards and that the period of detention could extend up to four days until his matter is presented before a magistrate, the IAA found that this did not amount to the level of a threat to life or liberty, or to significant physical harassment or ill treatment or otherwise amount to serious harm.[21] Further, the procedures under the IE Act to which the applicant would be subject are applied on a non-discriminatory basis under a law of general application, and therefore, would not constitute persecution for the purposes of ss.5H(1) and 5J(1) of the Act.

   [20] CB159-160, [26]-[31]

   [21] CB160, [33]

9. The IAA found that there was no indication on the evidence before it that the applicant’s status as a failed asylum would bring him to adverse attention on return to Sri Lanka. The IAA took into account that the applicant did not have an adverse profile with Sri Lankan authorities nor would he be perceived as having an adverse profile.[22]

   [22] CB160, [34]

10. The IAA assessed whether the applicant met the criteria for complementary protection under s.36(2)(aa) of the Act and noted that the applicant did not make any specific claims to complementary protection separate from those put forward in relation to the refugee criteria.[23] The IAA concluded that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka there is a real risk that the applicant will suffer significant harm.[24]

    [23] CB161, [39]

    [24] CB162, [45]

Grounds of application

1. The application contains the following three grounds of application:

   1.The IAA failed to consider all of my claims thereby committing jurisdictional error.

   2.The IAA failed to put me on notice with regard to adverse concerns that formed part of the reason to refuse my claim.

   3.The IAA did not consider my claims cumulatively.

2. Each of these grounds was interpreted to the applicant during the hearing but the applicant, who is not legally represented, made no submissions in relation to any of the grounds. The applicant referred to the IAA’s not having accepted his claim that he had been beaten. The applicant, however, said he had nothing to say about that.  I will take this to be a claim that it was not reasonably open to the IAA not to accept the applicant’s claim that he had been beaten; and I will deal with it after I consider the grounds stated in the application.

3. The first ground cannot be made out. As should be apparent from my recounting of the applicant’s claims and the IAA’s reasons, the IAA did consider all of the applicant’s claims.

4. The second ground also cannot be established. It does not identify the adverse concerns of which it is claimed the IAA failed to notify the applicant. In any event, there was no obligation on the part of the IAA to notify the applicant of any concerns it may have had about the applicant’s claims. As was submitted by the Minister, the IAA’s procedural fairness obligations are exhaustively stated in Division 3 of Part 7AA of the Act;[25] and that, under s.473DC(2) of the Act, the IAA does not have a duty to obtain, request or accept any new information.

   [25] First respondent’s written outline of submissions, [14(b)]

5. The third ground also establishes no jurisdictional error. As I have already concluded, the IAA considered all of the applicant’s claims.

6. In response to the matters raised by the applicant at the hearing, Mr Galvin, who appeared on behalf of the Minister, drew my attention to the claims the applicant made about his being beaten, and the IAA’s reasons for not accepting that claim, and submitted it was reasonably open to the IAA not to accept that part of the applicant’s claims for the reasons it gave. I have set out earlier in these reasons the applicant’s claims that he had been accosted and beaten, and the reasons on which the IAA relied for not accepting that part of the applicant’s claims; and I agree with the Minister’s submissions that it was reasonably open to the IAA not to accept that part of the applicant’s claims for the reasons it gave.

Disposition

1. I propose to order that the application be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  16 March 2018