Dif17 v Minister for Immigration

[2018] FCCA 2664

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2664

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider an integer of the applicant’s claims – whether the Authority failed to comprehensively consider the applicant’s claims – whether the Authority’s adverse findings was open on the material – no jurisdictional error made out – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss. 5H, 36, 473CB, 473DD, 476

Applicant: DIF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 715 of 2017

Judgment of: Judge Street

Hearing date: 19 September 2018

Date of Last Submission: 19 September 2018

Delivered at: Sydney

Delivered on: 19 September 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Burnett
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

DATE OF ORDER: 19 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

BRG 715 of 2017

DIF17

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 4 July 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 as an unauthorised maritime arrival on 13 October 2012. The applicant was found to be a Hindu Tamil from a particular district in a Northern Province of Sri Lanka.

3. The applicant claimed to fear harm in Sri Lanka because he would be at risk of being harmed by the Sri Lankan authorities for imputed involvement with the Liberation Tigers of Tamil Eelam (“LTTE”) and imputed anti-government political opinion due to his brother’s position as a member of parliament in the Tamil National Alliance (“TNA”) and because he could be a witness to international agencies about his detention from 1993 until 1996.

4. On 18 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 25 November 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions dated 28 February 2017, which were expressly referred to in the Authority’s reasons and the Authority considered the same and insofar as they engaged with the delegate’s decision. Insofar as the submissions contained new information, the Authority found that there were not exceptional circumstances to justify considering the same, taking into account both limbs of s 473DD of the Act.

6. The Authority in its reasons identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims and set out the relevant law.

7. The Authority identified that there were many topics during the visa interview where the applicant provided detailed information consistently and without difficulty, such as the circumstances surrounding his release from detention in 1996 and his brother’s career in politics. The Authority referred to the applicant’s inability to recall his travel to Thailand on a tourist visa for three to four months in 2007 and the making of an application for a Refugee and Humanitarian visa, to be distinguishable from the other inconsistencies in relation to the applicant’s recall of details and dates. Given the significance of these matters to the applicant’s claim for protection, the Authority had considerable doubt that the omission of information occurred as a result of memory lapse.

8. The Authority accepted that the applicant grew up in an LTTE-controlled area and noted that the applicant did not claim that he or members of his family, apart from some distant relatives, had any connection with the LTTE. The Authority noted that the applicant did not claim to have had any adverse encounters with the Sri Lankan authorities up until 1993.

9. The Authority accepted that the applicant was detained and during that period of detention, was subjected to interrogation about being involved with the LTTE and was mistreated. The Authority accepted that following the applicant’s release for detention in 1996, the applicant was subjected to reporting conditions which required him to report for a period of 18 months and then ceased.

10. The Authority referred to the applicant getting married in 2001 and relocating to his wife’s home village nearby. The Authority referred to the applicant working on a coconut estate and that the applicant worked as a driver from 1 February 2011 until 31 January 2012. The Authority noted that there was no information to suggest that the Sri Lanka authorities or army ever interfered with the business or prevented the applicant from obtaining employment. The Authority was satisfied that the applicant was able to live and work in his local area without interference from the Sri Lanka authorities or the army up until his departure from Sri Lanka until July 2012.

11. The Authority was not satisfied there is a real chance the applicant would face harm arising from his connection to his brother who is a TNA parliamentarian. The Authority referred to the applicant’s claimed fear of harm of being perceived as holding an anti-government position and that he could potentially be a witness to the government’s treatment of detainees in the period from 1993 to 1996. The Authority, having regard to the applicant’s previous disclosures to international agencies about the circumstances of his detention in 1993 to 1996 and the absence of any investigatory retaliatory action by the Sri Lankan authorities in the years following did not accept there is a real chance that the applicant would be imputed with holding anti-government opinion and at risk on this basis.

12. The Authority was not satisfied the applicant would be targeted by the Sri Lankan authorities or the army on return to Sri Lanka. The Authority found the applicant does not hold a profile with the Sri Lankan authorities such that he would face a real chance that he would be arrested and detained for a lengthy period under the emergency regulations on return to Sri Lanka. The Authority found that the applicant had left Sri Lanka legally on a valid passport. The Authority found that the applicant was not considered by the Sri Lanka authorities at the time of his departure to be of adverse interest to them. The Authority found the applicant does not have a profile for LTTE involvement or anti-government political opinion and found that the applicant would not be targeted or subjected to processes on re-entry to Sri Lanka that would be different from the usual processes.

13. The Authority referred to the emergency regulations during which the applicant was detained and mistreated from 1993 to 1996 on suspicion of being involved with the LTTE.

14. The Authority took into account that fellow detainees had disappeared or died following release from detention. The Authority took into account the applicant’s brother being a member of the Sri Lankan parliament and that the applicant had disclosed details of his treatment from the Sri Lanka government while he was detained to international agencies. The Authority took into account that the applicant was required to report for 18 months and had been subjected to some restriction of movement and monitoring. The Authority noted that the applicant had been able to live, work and travel without apparent impediment from the Sri Lankan authorities, including travel overseas in 2007 and 2012, and had not experienced any further questioning, detention or mistreatment.

15. It was in these circumstances, notwithstanding the applicant’s history and profile, and having regard to the country information about the political and security situation in Sri Lanka, that the Authority was not satisfied the applicant faces a real chance of serious harm now or in the reasonably foreseeable future.

16. The Authority found the applicant did not meet the requirements of the definition “refugee” in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

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

Before this Court

1. These proceedings were commenced on 26 July 2017. On 9 October 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant explained that he had been at a camp and that the camp had been the subject of burning, and that the applicant may be a witness if returned to Sri Lanka. The applicant was also concerned that he may be suspected of being involved with the LTTE, taking into account also the long period of time that he had been held in prison. The applicant referred to the Prevention of Terrorism Act 1978 (Sri Lanka) and was concerned that that would be applied to him again. The applicant feared harm if returned to Sri Lanka.

4. In relation to the applicant’s submissions from the bar table, the applicant’s detention at a camp and the applicant witnessing the burning of the camp, were matters expressly referred to and taken into account by the Authority in its reasons, as summarised above. Further, the Authority took into account and considered the applicant’s claimed fear of harm on suspicion of being involved with the LTTE, and gave logical and rational reasons as to why the applicant was not subject to a real chance or real risk of serious harm or significant harm. Those reasons were open to the Authority on the material before the Authority, and cannot be said to lack an evident and intelligible justification.

5. The Authority’s reference as to the emergency regulations was clearly a reference to the Prevention of Terrorism Act 1978 (Sri Lanka) to which the applicant had referred and took into account the same still being in place and the applicant’s fear in that regard, which the Authority did not accept, for the reasons summarised above.

6. The applicant’s submissions from the bar table in substance invited the Court to engage in merits review. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   Ground 1

   IAA made a jurisdictional error as it did not consider a crucial claim of the Applicant.

   Particulars

   Applicant claimed that, as a former inmate of Camp, he will be called as witness to give evidence about the burning down of the camp and the death of Tamil LTTE suspects and the IAA did not consider and respond to that claim.

   Ground 2

   The IAA did not take into account a relevant issue.

   Particulars

   Applicant claimed that as a former suspect of the LTTE, he was on reporting conditions in army controlled area when he fled the country.

   IAA did not consider the implications of leaving without informing the authorities while on reporting conditions.

   Ground 3

   IAA failed to consider a relevant issue.

   Particulars

   It was a claim of the Applicant that he was held in prison for almost 2 years as suspect of the LTTE.

   Applicant, during incarceration, was imputed with LTTE profile.

   Once imputed with LTTE profile, he will face problems from the authorities despite being in the community at large.

   IAA did not consider that claim.

Ground 1

1. In relation to ground 1, it is apparent from the Authority’s reasons as summarised above, and in particular at paragraphs 20 and 24, that the Authority did take into account the applicant’s claim to have been a witness in relation to the burning down of a camp. The Authority explained that the applicant had informed international authorities of the events that had occurred, and referred to the absence of any retaliation or further action taken by the authorities against the applicant, as well as the applicant’s ability to travel overseas and the applicant’s ability to continue to work and live without interference. There was no failure by the Authority to consider an integer of the applicant’s claims. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the Authority did consider the applicant’s claimed fear of harm of being imputed or suspected of being involved with the LTTE, and in relation to the applicant’s requirement of being placed on reporting conditions for 18 months. That reference to the reporting period was expressly referred to by the Authority in its reasons, including in particular paragraph 34. There was no failure to consider a relevant consideration as alleged in ground 2. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, for the reasons already summarised, the Authority took into account the applicant’s claimed fear of harm of being imputed with an LTTE profile. The Authority gave logical and rational reasons as to why the Authority rejected that claim. Paragraph 34 expressly refers to the applicant’s detention on suspicion of being involved with the LTTE. The Authority’s reasons, read as a whole, do not support the contention that the Authority failed to consider this claim. The Authority made dispositive findings in respect of the whole of the applicant’s claims. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 23 November 2018