DEU17 v Minister for Immigration

[2018] FCCA 3309

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEU17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3309

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority erred in making a finding without evidence – whether Authority erred in making a finding that was illogical, irrational and unreasonable – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA

Cases cited:

Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

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

Applicant: DEU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2243 of 2017

Judgment of: Judge Smith

Hearing date: 23 October 2018

Date of Last Submission: 23 October 2018

Delivered at: Sydney

Delivered on: 23 October 2018

REPRESENTATION

Counsel for the Applicant: Mr A Moutasallem

Solicitors for the Respondents: Mr T Galvin, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $ 6,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2243 of 2017

DEU17

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 23 June 2017.  The Authority affirmed a decision of a delegate of the Minister made on 19 January 2017 refusing to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka, of Tamil ethnicity, who arrived in Australia by boat on 26 August 2012.  On 25 September 2015, after the exercise of the Minister’s discretion to allow him to do so, the applicant applied for a protection visa.  The applicant claimed that, in essence, he was a Tamil from a Liberation Tigers of Tamil Eelam (LTTE) controlled area in Sri Lanka and that his family was displaced in 2008.  He claimed that the Sri Lankan Army suspected his father of transporting weapons for the LTTE.  His father had been a businessman who transported seafood from the north of Sri Lanka to Colombo.

3. In 2009 the applicant’s father and brother were shot and killed, and the applicant was subsequently taken into detention by the Sri Lankan Army and interrogated and physically assaulted for some time.  During the assault he claimed that the Army said to him that his father was involved in transporting weapons for the LTTE and was asked whether he knew where certain members of the LTTE were.  Having denied knowledge of what he was asked, the applicant was eventually taken to hospital along with his sister.

4. On 19 January 2017, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was referred to the Authority for review under pt.7AA of the Migration Act 1958 (Cth).

5. On 23 June 2017 the Authority made its decision to affirm the decision of the delegate. 

6. The Authority essentially accepted the applicant as a credible witness and accepted most, if not all of his factual claims.  I will come back to deal specifically with some of the Authority’s findings but the critical findings for present purposes are: firstly, although it accepted, as claimed, that the applicant’s mother had told the applicant that she had been told that the Army had been looking for his father, the Authority found that the applicant’s father had never been of interest to the authorities. Secondly, even though it accepted that the applicant had been questioned in the manner claimed by the Army after the death of his father, it found the Army was never in fact of the belief that the father had any links to the LTTE, or that he had any profile that was of any interest to them, or to any other Sri Lankan authority.

7. The Authority did not accept then that the applicant would face any harm on account of any actual or imputed LTTE connections as a Tamil, or because of his father and did not accept that he would face harm as a Tamil fisherman.  It went on to deal with a number of other claims that are not necessary to deal with in light of the issues that arise in the application.

8. There are two grounds in the amended application.  They essentially both deal with the finding by the Authority that the Sri Lankan Army did not have any adverse interest in the applicant’s father and in particular did not believe that the applicant’s father had transported weapons.

9. The first ground is expressed in a number of ways. First, it says that the finding by the Authority, in particular the finding at [17], was made without evidence. Secondly, it is argued that the finding was illogical, irrational and unreasonable and thirdly, that the way in which the finding was arrived at suggests that the Authority should have gone on and asked whether it was wrong in its finding in order to properly apply the test of the well-founded fear of persecution.

10. I do not accept that there was no evidence for the Authority’s conclusion that the Sri Lankan Army did not believe that the applicant’s father had any links to the LTTE.  The Authority gave a number of reasons for its conclusion.

11. First, at [13] it noted that although it had accepted that the applicant’s mother had told the applicant that somebody had told her that the applicant’s father was wanted by the Sri Lankan Army, it found that the applicant’s father was never detained, questioned or arrested on suspicion of being part of the LTTE, or having aided them in any way, and further that the father had never attracted any adverse attention for transporting seafood from the north of Sri Lanka to Colombo, and that he did not stop, even for a short period, his operations of his business due to any fear of being captured or harmed in any way.

12. That finding must be seen in the context of the findings at [12] based upon country information concerning the north and east of Sri Lanka, which noted that checkpoints were a constant feature of life in Sri Lanka, and that they were more likely to be found in areas of conflict and borders between SLA[1] and LTTE controlled areas.  It was on the basis of that country information that the Authority accepted that the father had purchased seafood and transported it to Army controlled areas in Sri Lanka, and also that he may have become known to people from the Army and the CID[2] at various checkpoints.

    [1] Sri Lankan Army.

    [2] Criminal Investigation Department.

13. The second basis for the Authority’s finding is found in [14] of its reasons, when considering and accepting the claim by the applicant that his father had been killed on 10 April 2009.  It noted, in this respect, that on the applicant’s own evidence the father had decided to head towards the Army men when he and the applicant’s brother were struck by a bullet. The Authority noted that the circumstances of the incident did not indicate that the applicant’s father was targeted as a result of any real or imputed connection with the LTTE, or because his father had a profile with the SLA, or any Sri Lankan authority, or as a result of operating the seafood business, but as a result of being an unfortunate casualty in the conflict.

14. At [16] the Authority noted, in the applicant’s favour, that the country information strongly suggested that Tamils from an area that was formerly controlled by the LTTE did experience a high degree of harassment and discrimination from Sri Lankan security forces during the time of the conflict.  This supported the applicant’s claim that he had been detained and physically assaulted as he had claimed, but as will be seen, it also supported the ultimate conclusion by the Authority that the applicant’s father was of no interest to the authorities.

15. Finally, in [17], the Authority noted that, while it accepted the applicant had been interrogated and physically assaulted and that the Army had asked the questions about his father and indicated to him that they knew that his father was involved in transporting weapons for the LTTE, it said in the last sentence of the paragraph, that the fact that the applicant was eventually taken to hospital along with his sister indicated the Sri Lankan authorities did not believe that he had any links to the LTTE, that his father had transported weapons, or that he had a profile that was of any interest to them or any other Sri Lankan authority. 

16. The assumption underlying that inference is that had the authorities in fact held those beliefs or any basis for the beliefs, then in light of the country information in [16], they would not have released him.  That is not said to have been an inference that was not available in light of the country information. 

17. Each of those matters were matters which gave rise to an inference which logically supported the conclusion that the Sri Lankan Army did not in fact hold a belief that the applicant’s father was transporting weapons for the LTTE during the course of the civil war.  The fact that that conclusion was contrary on one view to the inferences that might be drawn from what the applicant’s mother had told the applicant (see [13]) and what the Army had told the applicant during the interrogation (see [15] and [17]) did not mean that there was no basis in the evidence for the conclusion or, indeed, that the conclusion was legally unreasonable and, thus, that it infected the Authority’s decision with jurisdictional error.

18. It may be different if the evidence had gone all one way, however, that was not the case here.  In my view, as the inferences were readily available from the material before the Authority, it was not a case that its conclusion at [17] was based upon no evidence or that the finding was legally unreasonable.

19. The basis of particular (c) to the first ground, as I have mentioned, is that the finding in [17] was attended with sufficient doubt that the Authority ought to have considered whether it was wrong in that conclusion: Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 576, explained by Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

20. The argument is based essentially on the statement in the last sentence of [17], “…in my view …”. I do not accept that those words indicate any level of doubt at all, rather they express the conclusion reached by the Authority on the basis of its assessment of the evidence before it.  For those reasons, I do not consider that the principles explained in the cases of Guo and Rajalingam had any application to the reasoning of the Authority in this case.  The first ground must be rejected.

21. The second ground is, in essence, the same as the first ground.  It focusses on the acceptance at [13] that the applicant’s mother had told the applicant that she had been told that the applicant’s father was wanted by the Sri Lankan Army.  It is said that for the Authority to make a finding contrary to that evidence somehow gave rise to jurisdictional error.  I disagree essentially because, as I have already sought to explain, the findings concerning the interests of the authorities in the applicant’s father were based upon logical inferences drawn from findings of fact already made which were based upon the evidence before the Authority, so the second ground must be rejected.

Conclusion

1. For each of those reasons, then, I am not satisfied that the Authority’s decision was affected by jurisdictional error.  The application must be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 20 November 2018