DFS16 v Minister for Immigration
[2018] FCCA 1628
•9 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFS16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1628 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in critical respects and other fears found not to be well-founded – whether the Authority gave lawful consideration to the applicant’s claims considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 57, 91R |
| Cases cited: Minister for Immigration v Li (2013) 297 ALR 225 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v WZAPN [2015] HCA 22 NAHI v Minister for Immigration [2004] FCAFC 10 SZLYT v Minister for Immigration [2009] FCA 76 SZTAL v Minister for Immigration (2017) 91 ALJR 936 SZTEQ v Minister for Immigration [2015] FCAFC 39 WZAVX v Minister for Immigration [2016] FCA 411 |
| Applicant: | DFS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2974 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Applicant: | Lumbo Legal |
| Solicitors for the Respondents: | Ms K Evans of Mills Oakley |
ORDERS
The application filed on 28 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2974 of 2016
| DFS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 4 October 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the Minister filed on 13 June 2018.
The applicant is a male citizen of Sri Lanka, who applied for a SHEV on 10 February 2016.[1]
[1] Court Book (CB) 21-58
The applicant’s claims for protection were initially set out in a statutory declaration accompanying his SHEV application. In summary, the applicant claimed that he would be harmed by members of the Tamil Makkal Viduthalai Pulikal (TMVP) because he had supported a Tamil National Alliance (TNA) member (“Mr Y”) in the September 2012 Eastern provincial council elections and refused to let the Pillayan group (a faction of the TMVP) use his vehicle. The applicant claimed that two days after the election, members of the Pillayan group came to his home and hit him on the head, forcing him into hiding and leading to his decision to depart Sri Lanka for Australia. He claimed that the TMVP continued to look for him.
The applicant also claimed that in 2006, he was detained and beaten by the Sri Lankan Army on suspicion of a connection with the LTTE. Following this incident, the applicant claimed that he was required to report monthly to the army camp.
In effect, the applicant claimed to fear harm upon return to Sri Lanka from the authorities, particularly the army and the Criminal Investigation Department (CID), because he had failed to report at the army camp and the Tamil paramilitary groups “who would seek revenge” for his involvement with the TNA.[2]
[2] CB 59-61
The delegate
By letter dated 7 June 2016, the applicant was invited to attend an interview with the delegate scheduled for 27 June 2016.[3]
[3] CB 83-85
At the interview, the applicant elaborated on his written claims, and in particular claimed that:
a)his father was shot dead by the Sri Lankan army in 1992;
b)his uncle and two cousins were members of the Liberation Tigers of Tamil Eelam (LTTE);
c)in 2006 his two cousins were arrested and never seen again;
d)he lived in Colombo from 2009 to 2011 and during that time he was regularly taken in by the CID for questioning; and
e)he feared harm as a failed asylum seeker who departed Sri Lanka illegally without a passport.[4]
[4] CB 131
In relation to the applicant’s claims about his political involvement, the delegate put to the applicant, under s.57 of the Migration Act 1958 (Cth) (Migration Act), her concern that at his entry interview on 13 January 2013, he had answered “No” when asked if he or any members of his family had been associated or involved with any political group. The delegate considered that this response contradicted the applicant’s written claims (and testimony at the interview with the delegate) that he had supported a TNA candidate and was subsequently harmed as a result of that involvement.[5]
[5] CB 140
On 5 August 2016, the delegate refused to grant the applicant a SHEV on the basis of her assessment of independent country information, adverse credibility findings and her rejection of the applicant’s key claims for protection.[6]
[6] CB 128-155
The Authority
The matter was referred to the Authority on 8 August 2016.[7]
[7] CB 157-158
On 17 September 2016, the applicant, through his representative, sent a submission to the Authority in support of his claims.[8]
[8] CB 167-170
On 18 September 2016, the applicant, through his representative, also sent the Authority English translations of some documents which were only before the delegate in their original language.[9]
[9] CB 171-176
On 4 October 2016 the Authority affirmed the delegate’s decision.[10]
[10] CB 181-196
The Authority found that the submission it had received contained legal argument in response to the delegate’s decision and did not consider it to be new information.[11] Insofar as the English translations were concerned, it found that they were not new information as “the information in those documents was before the delegate in the original language” and merely allowed the Authority “to comprehend the contents of those documents and better assess how much weight to place upon them”.[12]
[11] CB 182, [4]
[12] CB 182, [5]
The Authority noted that one of the English translations was a translation of a letter from Mr Y, the TNA politician, dated 10 June 2013. The Authority considered the authenticity of the letter in light of DFAT[13] information regarding the prevalence of fraudulent documents in Sri Lanka. Relevantly, the Authority found that the letter:
a)included detailed information about the applicant’s past and his father’s death, which the Authority considered was not within the knowledge of an MP unless the applicant was well known to the MP (which the applicant had not claimed to be);
b)stated the applicant “ardently engaged in propaganda” for the TNA in the Eastern provincial elections when the applicant’s claimed role was “far lower” than what was described by the MP;
c)stated that the applicant’s involvement caused government candidates to “attempt to attack” the applicant, which was inconsistent with the applicant’s claim that he was actually attacked;
d)stated the applicant was searched for by “an unidentified armed group”, which was inconsistent with his claim that he knew his attackers were from the Pillayan group; and
e)stated that the unidentified group threatened members of the applicant’s family and searched for him in the place he was hiding, despite the applicant never having claimed (specifically) that these events occurred.[14]
[13] Department of Foreign Affairs and Trade
[14] The Authority’s reasoning is questionable as 16(a) sits uneasily with 16(c)-(e) and the applicant had claimed that people often came to the family home. However the applicant does not put in issue the Authority’s reasons as illogical amounting to unreasonableness in this respect.
On the basis of these inconsistencies, the Authority concluded that the letter was not a credible document and that the provision of such a non-credible document “undermines the applicant’s credibility generally” as well as the applicant’s claim that he campaigned for Mr Y.[15]
[15] CB 184, [14]
While the Authority was “mindful” of country information considered by the delegate, including a DFAT report, which alluded to past political violence between supporters of the TMVP and the TNA,[16] the Authority[17] found that other country information, also referred to in the delegate’s decision, undermined the credibility of the applicant’s claims. Relevantly, it found that:
a)while the applicant had claimed that he was attacked on 25 September, “2 days after the election”, the elections were in fact held on 8 September 2012; and
b)Mr Y was member of the National parliament and did not contest the Eastern provincial elections in 2012.
[16] At CB 184, [13]
[17] At CB 185, [15]
In addition, the Authority considered it seemingly implausible that members of the Pillayan group would continue to search for him simply because he would not let them use his vehicle and noted that the applicant had only a “vague” description about how escaped on the night he was attacked.
In light of these findings the Authority did not accept that the applicant had campaigned for Mr Y or that he was contacted by the TNA or the Pillayan group to provide use of his vehicle.[18] Nor did it accept that the applicant was attacked by supporters of the Pillayan group or that these supporters were looking for him, forcing him into hiding.[19] It did however accept that the applicant was a low-level supporter of the TNA.[20]
[18] CB 185, [16]
[19] CB 185, [16]
[20] CB 185, [17]
Moreover, the Authority had regard to DFAT reports that indicated: there was a decrease in violence in Sri Lanka during the 2015 elections; the TNA were now the official opposition party in Sri Lanka; and the TMVP had a lessened prominence.[21] Though it accepted that the Pillayan group was still active and influential in the Eastern province, the Authority was not satisfied that there was a real chance that the applicant would face serious harm from Tamil paramilitaries or any other political opponent by reason of his low-level pro-TNA opinion.[22]
[21] CB 185, [18]
[22] CB 185, [18]
The Authority accepted that the applicant’s cousins and uncle were former members of the LTTE[23] and that the applicant is a Tamil, born in Eastern province, which was formerly under LTTE control.[24] The Authority also accepted that in 2006 the applicant was detained by the army for two days and beaten because the army suspected him of being connected to the LTTE by reason of his family’s LTTE connection, and that he was subsequently required to report to the army base on a monthly basis.[25]
[23] At CB 186, [20]
[24] CB 187, [23]
[25] CB 186, [20]
However, the Authority did not accept that while the applicant was living in Colombo he continued to return to his village every month to report to the army base. The Authority also did not accept that the applicant was detained by the CID three times a month for questioning during that same two year period.[26]
[26] CB 186-187, [22]
Further, the Authority found that as the Sri Lankan civil war ended in 2009, the applicant would not remain a person of interest to the Sri Lankan authorities, particularly as both the army and CID had released the applicant without charging him with any offence.[27] In this respect, the Authority also had regard to information in DFAT reports, the UNHCR guidelines and country information provided to the delegate[28] to find that the applicant did not have a profile that would bring him to the attention of the authorities for suspected connection with the LTTE.[29] Accordingly, the Authority was not satisfied that the applicant faced a real chance of serious harm on the basis of having an imputed pro-LTTE or anti-Sri Lankan government political opinion.[30]
[27] CB 186-187, [22]
[28] At CB 187, [24]-[25]
[29] At CB 187-188, [26]
[30] CB 188, [27]
The Authority then considered whether the applicant faced a real changes of serious harm as a failed asylum seeker who had departed Sri Lanka illegally.[31] The Authority accepted that the applicant had departed Sri Lanka illegally and considered it likely that the applicant would be charged and fined under the Immigrants & Emigrants Act (I&E Act) and then released.[32] Correspondingly, the Authority found that should the applicant plead not guilty, he would nevertheless be released on his own personal surety or that of a family member.[33] In this regard, the Authority rejected the suggestion that the applicant would be unable to obtain bail because his mother and brother resided in Saudi Arabia, noting that the applicant had referred to having other relatives in Sri Lanka, and in particular, his uncle and cousin.[34]
[31] CB 188-190, [28]-[37]
[32] CB 189, [34]
[33] CB 189, [34]
[34] CB 189, [34]
The Authority also had regard to country information which indicated that illegal departees may be restrained for several days pending an opportunity to appear before a magistrate, but found that a detention of several days did not constitute serious harm.[35] It also found that none of the processes or penalties that the applicant was likely to face on return to Sri Lanka as an illegal departee would constitute persecution for the purposes of the Migration Act.[36]
[35] CB 189, [35]; the Authority had regard to the findings in Minister for Immigration v WZAPN [2015] HCA 22 and SZTEQ v Minister for Immigration [2015] FCAFC 39 which held that the likelihood of a period of temporary detention is not of itself a threat to liberty within the meaning of s.91R(2)(a) (now relevantly s.5J(5)(a)) of the Migration Act
[36] CB 189-190, [37]
Accordingly, the Authority, having regard to all of these circumstances, was not satisfied that the applicant had a well-founded fear of persecution from the Pillayan group or any associated groups or the Sri Lankan authorities[37] and found that the applicant did not meet the definition of a refugee under s.5H(1).[38]
[37] At CB 190, [38]
[38] CB 190, [39]
The Authority relied on its earlier findings to conclude that the applicant would not face significant harm.[39] Further, it was not satisfied that there was a real risk that the applicant would be subjected to mistreatment during any possible brief period in detention on return to Sri Lanka.[40] The Authority was also not satisfied that any pain or suffering caused by overcrowding and poor and unsanitary conditions in prison or on remand would be intentionally inflicted so as to cause pain or suffering or extreme humiliation.[41] Accordingly, the Authority concluded that the applicant did not meet s.36(2)(aa).[42]
[39] CB 190-191, [42]-[45]
[40] CB 190-191, [43]
[41] CB 190-191, [43]; SZTAL v Minister for Immigration (2017) 91 ALJR 936
[42] CB 191, [46]
The current proceedings
These proceedings began with a show cause application filed on 28 October 2016. The applicant continues to rely upon that application. There are four grounds in that application:
Ground 1
The Authority has failed to give realistic consideration regarding the Applicant's claim of the cousin's involvement in LTTE.
Particulars
(a)The Applicant's was involved with LTTE and was at risk from the authorities.
(b)The Authority failed to give realistic consideration to the claims.
(c)The Authority fell into error when it asked itself the correct question or failed to address an integer of claim/ claim.
(d) The Authority committed thereby jurisdictional error.
Ground 2
The Authority fell into error by failing to assess the actual link between the Applicant's detention and the link to LTTE.
Particulars
2.1The Authority ignored the claims regarding the relationship between the Applicant's claim and LTTE activities.
2.2The Authority consideration is illogical / irrational as to whether the Applicant was at risk because of the link to his land.
2.3The Authority failed to consider whether the Applicant was at risk because of the link to LTTE.
2.4The Authority committed jurisdictional error.
Ground 3
The Authority committed jurisdictional error when it failed to take into account that the Applicant's detention in poor prison conditions (IAA at [61]) would constitute persecution complementary protection provisions and thereby applied the wrong test in relation to s 5 and s 36(2A) of the Migration Act 1958 and / or failed to address an integer/ claim regarding the detention claim.
Particulars
3.1 Further particulars to be provided
Ground 4
The Authority fell into jurisdictional error in failing to give consideration to the Applicant's detention.
Particulars
6.1The Authority did not give consideration to the Applicant's detention and future risk.
6.2 The Authority committed jurisdictional error.
(errors in original)
Only Grounds 1 and 2 were pressed at the trial of this matter on 20 June 2018.
I have before me as evidence the court book filed on 5 December 2016. Both the applicant and the Minister filed pre-hearing submissions and made oral submissions through their representatives at the trial.
Consideration
The essence of the applicant’s contentions in this case is that the Authority did not give proper consideration to the risk profile of the applicant, given the acknowledged family connections to the LTTE and the acknowledged harm suffered by the applicant in 2006. The analysis of the protection claims made by the applicant, based upon his family connection to the LTTE and his personal experiences, like all such claims, involved a consideration of the closeness and importance of those family connections, the particular harm suffered by the applicant and the distance the applicant has been able to put between himself and the events of the past. In my view the Authority dealt lawfully with those considerations in the present case. I prefer the submissions of the Minister in relation to the grounds of review pursued.
Ground 1
Ground 1 asserts that the Authority “failed to give realistic consideration regarding the Applicant’s claim of the cousin’s involvement in LTTE”.The particulars to this ground assert that the “Applicant’s” (sic) was involved with the LTTE” and that the Authority “failed to give realistic consideration” to the applicant’s claim and fell into error when it “asked itself the [wrong] question or failed to address and integer of claim”.
It is probable that this is a typographical error and the applicant is actually referring to his claim that his cousins and uncle were members of the LTTE. If the applicant were now seeking to make a new claim that he himself was a member of the LTTE, this is not a proper ground of judicial review and cannot succeed.
In the applicant’s written submissions, he contends[43] that the Authority did not engage with his specific circumstances and also failed to engage with the UNHCR Guidelines in considering his claims. Further, the applicant alleges[44] that the Authority failed to give proper consideration to the LTTE connections of the applicant’s cousins, to the applicant’s previous detention and to the fact that the applicant left Sri Lanka previously. In so doing, the applicant suggests that the Authority’s reliance on the DFAT report[45] was a general report about returning asylum seekers “rather than persons fitting the Applicant profile”, and submits that the Authority did not consider the risk to the applicant because of his profile.[46]
[43] Applicant’s Submissions (AS), [13]
[44] AS, [17]-[18]
[45] CB 187, [24]
[46] AS, [19]-[20]
Insofar as the applicant alleges that the Authority failed to “engage” with the UNHCR Guidelines, such a contention fails at a factual level. The Authority expressly considered the most recent UNHCR Guidelines, which, it observed, assessed that Tamils who lived in former LTTE areas, including those that provided low-level support to the LTTE or who had family members that were former LTTE members, were at low risk of being detained or prosecuted.[47] The choice and selection of country information and the weight given to such information is a factual matter for the Authority.[48]
[47] CB 187, [24]
[48] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]; SZLYT v Minister for Immigration [2009] FCA 76 at [20] per Collier J; and WZAVX v Minister for Immigration [2016] FCA 411 at [32] per Siopis J
The applicant’s other contentions also cannot succeed at a factual level. The Authority accepted that the applicant’s cousins and uncle were members of the LTTE and that he was detained in 2006 because the army suspected he was linked to the LTTE as a result of his cousins and uncle,[49] but it was not satisfied that the applicant had a profile “which would bring him to the attention of the Sri Lankan authorities for suspected connection to the LTTE”[50], on the basis that he was released by both the CID and the army and never charged with an offence.[51] The Authority also had regard to country information and DFAT reports in finding that Tamils who provided support to the LTTE or had family members in the LTTE may be monitored, but are at a low risk of being detained or prosecuted.[52] Further, the Authority plainly considered the risk of harm to the applicant upon return to Sri Lanka because of his LTTE links but found the country information before it suggested that although some returnees had been harmed, these were people with substantial links to the LTTE or outstanding warrants and the applicant was not a person “with that kind of profile”.[53]
[49] CB 186, [20]
[50] CB 187, [26]
[51] CB 186-187, [22]
[52] CB 187, [24]
[53] CB 188, [28]
Despite the applicant’s contentions, as outlined above, the Authority did consider the applicant’s claim about his cousins’ involvement in the LTTE and this ground essentially seeks impermissible merits review of the Authority’s decision.[54]
[54] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Ground 2
Ground 2 asserts that the Authority failed to properly assess “the actual link between the Applicant’s detention and the link to the LTTE”.As reproduced above, the particulars of this ground allege that:
a)the Authority “ignored the claims regarding the relationship between the Applicant’s claim and LTTE activities”;
b)the Authority’s consideration was “illogical / irrational as to whether the Applicant was at risk because of the link to his land”; and
c)the Authority “failed to consider whether the Applicant was at risk because of the link to [the] LTTE”.
It is unclear what is meant by the applicant’s “link to his land”. The Authority accepted that the applicant was born in Eastern province, which was once under the control of the LTTE,[55] and had regard to DFAT reports and the UNHCR Guidelines in finding that Tamils who lived in former LTTE areas, including those who had family members in the LTTE, were at a low risk of being detained or prosecuted.[56] In the absence of further and meaningful particulars, the claim of illogicality or irrationality by the Authority cannot succeed.
[55] CB 187, [23]
[56] CB 187, [24]
Moreover, the applicant’s submissions do not advance this ground in any meaningful sense. To the extent the applicant contends[57] that the Authority failed to assess the actual link between the applicant’s detention and his link to the LTTE (because of his cousins’ and uncle’s involvement with the LTTE), this contention fails at a factual level. As outlined above, the Authority accepted that the applicant’s cousins and uncle were members of the LTTE and that he was detained in 2006 because the army suspected he was linked to the LTTE as a result of his cousins and uncle.[58] However, it was not satisfied that the applicant had a profile “which would bring him to the attention of the Sri Lankan authorities for suspected connection to the LTTE”[59] on the basis, amongst other factors, that he was released by both the CID and the army and never charged with an offence.[60]
[57] AS, [23]-[24]
[58] CB 186, [20]
[59] CB 188, [26]
[60] CB 186-187, [22]
I reject the applicant’s contention that these findings were somehow “illogical or unreasonable”.[61] The Authority’s findings cannot be said to lack an “evident and intelligible justification”[62] and were plainly available to the Authority on the basis of the evidence and country information before it and for the reasons that it gave. This complaint goes no higher than to express disagreement with the consideration of the applicant’s claims and evidence or the evaluative judgements made by the Authority.[63]
[61] At AS [24]
[62] Minister for Immigration v Li (2013) 297 ALR 225 at [76]
[63] Li at [30]
Conclusion
The applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 9 August 2018
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