DDQ17 v Minister for Immigration

[2018] FCCA 501

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 501

Catchwords:

MIGRATION – Immigration Assessment Authority – application for a protection visa – whether the Authority’s reasons expressed doubt as to the applicant being imputed with an LTTE profile – whether the Authority should have considered the possibility of what if the applicant was imputed with an LTTE profile – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CB, 473DE, 476

Cases cited:

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Applicant: DDQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2208 of 2017

Judgment of: Judge Street

Hearing date: 28 February 2018

Date of Last Submission: 28 February 2018

Delivered at: Sydney

Delivered on: 28 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

On a direct access basis

Solicitors for the Respondents: Mr T Galvin
MinterEllison

ORDERS

1. Grant leave to amend to rely upon the amended application annexed to the applicant’s submissions dated 23 February 2018.

2. Grant leave to the applicant to file in Court the amended application and the Court dispenses with the need for the filing of an electronic copy of the same.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

SYG 2208 of 2017

DDQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 22 June 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 13 October 2012 as an unauthorised maritime arrival. In June or July 2008 the applicant departed Sri Lanka through Colombo International Airport and travelled to Malaysia where he resided until September 2012.

3. The applicant was found to be a young Tamil male from the Jaffna District of Sri Lanka. The applicant claimed to fear harm from the security authorities because he is a young Tamil male from the Northern Province who has previously come to adverse attention on suspicion of assisting and supporting the Liberation Tigers of Tamil Eelam (“LTTE”) and who fled Sri Lanka twice; whose brother was accused of assisting the LTTE; whose cousins were LTTE fighters killed in the war; whose parents supported the LTTE; who assisted the LTTE organising meetings; who had been imputed as being anti-Government because of his support for the Tamil National Alliance (“TNA”) and who had lived overseas for a long time and had applied for asylum.

4. On 1 April 2016, the applicant lodged an application for a Safe Haven Enterprise visa. On 11 November 2016, the delegate found that the applicant failed to meet the criteria for the grant of the said visa.

The Authority’s decision  

1. On 16 November 2016, the Authority wrote to the applicant identifying that the application for a protection visa had been referred to the Authority for review. The Authority’s letter explained that there were limited circumstances in which the Authority could receive new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. Submissions were provided to the Authority on behalf of the applicant on 29 November 2016 and were expressly referred to and taken into account by the Authority. The Authority in its reasons identified the background for the visa application and had regard to the material referred under s 473CB of the Act. The Authority referred to taking into account the submissions and also new country information consistent with s 473DE(3)(a) of the Act.

3. The Authority summarised the applicant’s claims and evidence. The Authority stated the relevant law and accepted that the applicant grew up in Jaffna during the civil war and was displaced from 2000 to 2004. The Authority accepted that the LTTE had control of this area until 1995 and that his parents provided materials for the LTTE members as they supported Tamil independence. The Authority also accepted that the applicant had cousins who were LTTE fighters who were killed in fighting and accepted that as a student, the applicant assisted with arrangements for LTTE meetings.

4. The Authority accepted that the applicant’s family were TNA supporters and during the elections, had provided support to the TNA. The Authority found there was no indication the applicant had been harmed by providing this support. The Authority also accepted that the applicant’s brother was a de-miner.

5. The Authority accepted that from 2006, the army restricted movement from the north of Sri Lanka and the security authorities harassed the general Tamil population on suspicion of supporting the LTTE. The Authority referred to country information and the deterioration of the human rights situation and emergency regulations introduced in August 2005.

6. The Authority referred to the applicant’s claims during this period that he was questioned by the army and CID in Jaffna about any training he had done with the LTTE and any help he had provided. The Authority referred to the applicant’s claim that he was shown pictures of meetings he had attended, that he was beaten on these occasions and required to report and sign with the authorities weekly and that his brother was suspected of supporting the LTTE and providing ammunition from his de-mining work.

7. The Authority referred to the applicant’s claims of harassment and mistreatment being consistent with country information. The Authority accepted the applicant was questioned and beaten in Jaffna, shown pictures of meetings that he attended and made to sign regularly as claimed. The Authority, however, considered the applicant’s claims against country information about the strict security checking for both internal travel and exiting and entering Sri Lanka and found the applicant’s ability to travel, considered together with aspects of his account referred to further in the reasons of the Authority, led the Authority to doubt that he was imputed with an LTTE profile as the applicant fears.

8. The Authority referred to the Safe Haven Enterprise visa interview, where applicant referred to the restrictions on movements in 2006 after the resumption of hostilities. The applicant claimed to have travelled with his brother, who was suspected of supplying ammunition to the LTTE, from Jaffna to Colombo in June 2007 and made reference to both having been subject to stringent security checking.

9. The Authority referred to country information in relation to the checking of Tamils travelling from the north and seeking to enter Colombo. The Authority referred to the applicant’s fear of being imputed with an LTTE profile and was not convinced that someone who the authorities imputed as being an LTTE member or supporter, or otherwise having LTTE links would have been able to travel from Jaffna and enter Colombo in June 2007. The Authority found the applicant’s ability to travel from Jaffna to Colombo and to enter Colombo led the Authority to find the applicant was not imputed with an adverse profile.

10. The Authority referred to the applicant’s claims that around September 2007 in Colombo he was arrested, and the Authority gave express consideration to the nature of the arrest and whether that meant the applicant or his brother were of specific adverse interest and whether the authorities targeted them specifically because of an LTTE profile. The Authority in that regard referred to country information.

11. The Authority was not convinced that the applicant and his brother were targeted by the authorities for arrest in September 2007. The Authority accepted as plausible that the applicant was held in a house when first detained and referred to the applicant’s account that he was taken before a court after being held for approximately three months. The Authority found and this accords with the regulation under the Emergency Regulations by Sri Lankan forces, which provided for detention without charge for 90 days. The applicant claimed he was released after his court appearance and he was not charged and not required to report. The Authority accepted the applicant was detained in Colombo for approximately three months and that he was questioned and mistreated while detained and was released after the court appearance in which he was made to sign a document.

12. Taking into account the country information, the Authority found that the applicant was one of the many thousands of Tamils arrested and held in Colombo in 2007 under the stringent security regime that was in place at that time. The Authority was not satisfied that this would result in any future harm to the applicant. The Authority found the applicant’s experiences were shared by many thousands of detainees released after being mistreated and there was no indication that the authorities or their abusers, have taken steps to harm them on this basis.

13. The Authority noted when the applicant left Jaffna he had been required to report to the army on a weekly basis and after he left, security authorities visited the family home and enquired about him and his brother. The Authority accepted this as plausible, noting the tight security regime in Jaffna at the time. The Authority was not satisfied that this points to the applicant being targeted because of imputed LTTE links, rather, it is indicative of the general monitoring of the general Tamil civilian population, and young men in particular, at that time.

14. The Authority accepted that a particular MP may have advocated for the release of the applicant, and that the particular MP was killed in 2008 when the applicant and his brother were present, as being plausible. The Authority was not satisfied that this points to a real chance of harm to the applicant. The Authority considered it significant that before the MP was killed, he had stated that he would reveal government collusion with paramilitaries in relation to killings in Jaffna, and that the security measures and the number of bodyguards assigned to him had been reduced considerably shortly before his death.

15. The Authority also took into consideration that at some time in 2007, the applicant obtained a passport and in January 2008 he departed for India. The Authority found the applicant’s ability to obtain a passport and depart Sri Lanka belies his concerns that he was of adverse interest to the authorities and imputed as an LTTE supporter at this time.

16. The Authority made reference to the fact the applicant was released and not charged with any offences and not required to report again to the authorities. The Authority found that the detention and abuse in 2008 did not point to the applicant being imputed as an LTTE supporter. The Authority found the applicant was detained for questioning, as many Tamils were at the time, and gave significant weight to the fact that he was released without charge. The Authority also took into account the fact that the next month the applicant was able to depart Sri Lanka legally and was not impeded when leaving.

17. The Authority referred to the applicant travelling from Sri Lanka to Malaysia in July 2008. The Authority also was willing to accept that the applicant was mandated as a refugee around 2012 in Malaysia. The Authority accepted as plausible that two years and six months after his departure, CID came to the family home and asked about him and his brothers, noting that the north remained highly militarised.

18. The Authority referred to taking into account the totality of the applicant’s experiences in Sri Lanka and his family links and accepted that he was subject to arbitrary arrest and detention and torture. The Authority accepted that at the time, the authorities had a high level of suspicion of the Tamil population. The Authority however, was not satisfied that the applicant was imputed as being an LTTE supporter or member. The Authority was not satisfied that the applicant was targeted because he was an imputed with an LTTE profile. The Authority found rather, that the applicant, as a young Tamil male from the north was subject to the rigid security regime in place at the time.

19. The Authority found notwithstanding the applicant’s past claims, the assessment of whether the applicant has a well-founded fear of serious harm is a forward-looking test, and based on the real chance that he would face persecution on return to Sri Lanka. The Authority was not satisfied that his association with the Tamil political party, the TNA, would give rise to a real chance of serious harm or impute the applicant with an LTTE/antigovernment profile.

20. The Authority referred to the assistance the applicant provided while as a student and was not satisfied this would attract adverse attention or attribute to him in an LTTE profile now. The Authority referred to the UK Home Office reporting in relation to categories of that person with a significant role in relation to being at risk. The Authority was not satisfied the applicant fell within one of these categories of persons.

21. The Authority also had regard to the UNHCR guidelines and did not accept that the applicant would on return be imputed with an anti-government profile. The Authority made reference to accepting the applicant and his brother were mistreated and accepted it as plausible that his half-brother was granted protection in Australia. The Authority made reference to other evidence indicating that the family members in Sri Lanka have not been targeted by harm for reason of belonging to the family, and the Authority did not accept the applicant would be harmed on return to Sri Lanka.

22. The Authority made reference to not having accepted the applicant was imputed with an LTTE profile by the time he left Sri Lanka, and was not satisfied that he would be perceived as such on return to Sri Lanka. The Authority was not satisfied the applicant’s status as a failed asylum seeker would result in him experiencing adverse attention on return to Sri Lanka.

23. The Authority found there had been significant change in country circumstances ever since the end of the war and was not satisfied there was a real chance the applicant would experience harm on return to Sri Lanka for reason of his Tamil race or for being a young Tamil able-bodied male from the north or from a former LTTE controlled area.  The Authority noted that it did not accept the applicant was imputed with an LTTE or anti-government profile at the time he left Sri Lanka, and was not satisfied that he would be perceived as such on return to Sri Lanka.

24. Referring to the totality of the applicant’s circumstances, the Authority did not accept that the applicant was, nor would be on return, imputed with an LTTE profile or that he would experience harm on this basis or for an imputed political opinion. The Authority was not satisfied there is a real chance of the applicant being persecuted in Sri Lanka in the reasonably foreseeable future and found the applicant’s fear of persecution was not well-founded.

25. The Authority found the applicant failed to meet the criteria of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria under s 36(2)(a) of the Act.

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

Before this Court

1. The ground in the amended application was as follows:

   1. The Immigration Assessment Authority (“the IAA'') found that the applicant was not imputed with an LTTE profile, or being an LTTE supporter, before he left Sri Lanka in 2008. However, the IAA's reasons leading up to this finding indicate that the IAA made the finding on the balance of probabilities and had some doubts about the finding. In the circumstances, the IAA was obliged to take into account the possibility that the applicant was imputed with an LTTE profile. or as being an LTTE supporter, before he left Sri Lanka in 2008: see Minister v Rajalingam (1999) 93 FCR 220. If the IAA had taken this possibility into account, it may have affected the IAA's assessment of whether the applicant faces a real chance of persecution on his return to Sri Lanka. For this reason, the IAA fell into jurisdictional error.

2. Mr Zipser, of counsel who appeared on behalf of the applicant took the Court carefully through the whole of the findings by the Authority in relation to the applicant being imputed with an LTTE profile. Mr Zipser’s argument in this regard was one that the Authority had expressed doubt on a fair reading of the Authority’s reasons as a whole and accordingly, should have considered the possibility of what if the applicant was imputed with an LTTE profile in determining the review of the applicant’s visa application.

3. Mr Zipser argued that there had accordingly been a jurisdictional error of the kind identified in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. Mr Zipser focused specifically on the reference at the end of paragraph 18 to the Authority referring to the applicant’s travel leading the Authority to doubt that he was imputed with an LTTE profile as he fears.

4. Mr Zipser argued that the structure of the Authority’s reasons supported that as the ultimate finding and that the following reasons were an expansion of that expressed doubt. Mr Zipser argued that the other language found in the Authority’s reasons in respect of not being convinced and not being satisfied of an imputed LTTE profile, should be read in the context of paragraph 18 and accordingly, that on a fair reading as a whole, the Authority failed to consider the possibility of “what if I’m wrong?” It was submitted that the Authority had not made a finding that it had no real doubt that the applicant would be imputed with an LTTE profile.

5. Notwithstanding Mr Zipser’s skilful argument, I do not accept that paragraph 18 qualifies the whole of the other reasons set out in the Authority’s reasons so as to reflect the existence of a doubt in the finding as to whether the applicant would be imputed with an LTTE profile or as an LTTE supporter. On a fair reading of the decision as a whole, the findings of the Authority reflect no real doubt as to whether or not the applicant had an LTTE profile or would be imputed as having an LTTE profile or as an LTTE supporter. Those adverse findings as summarised above were open to the Authority in the reasons given by the Authority as summarised above.

6. Specifically, the reasons of the Authority in paragraphs 33, 34, 35, 37, 39, 42 and 43 all support the Authority as making a finding that was not attended by any real doubt. Accordingly, there was no requirement on the Authority to consider the possibility of “what if I am wrong?” No error of the kind identified in the Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 was made by the Authority in the present case. No jurisdictional error is alleged in ground 1 is made out.

7. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 March 2018