DIR16 v Minister for Immigration
[2018] FCCA 992
•27 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIR16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 992 |
| Catchwords: MIGRATION – Judicial review of decision of Immigration Assessment Authority (IAA) affirming decision not to grant applicant Safe Haven Enterprise visa – whether IAA omitted to make material findings of fact – whether IAA considered the applicant’s claims cumulatively – whether the IAA was obliged to invite applicant to hearing – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36(2)(aa), 473DA(1), 473DC(1), 473GA, 473GB |
| Applicant: | DIR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3071 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 19 April 2018 |
| Date of Last Submission: | 19 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2018 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Solicitors for the First Respondent: | Mr K Eskerie of Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3071 of 2016
| DIR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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 the applicant a Safe Haven Enterprise visa (SHEV).
Background
The applicant arrived in Australia as an unauthorised maritime arrival on 21 September 2012 and submitted a purported application for a subclass 866 Permanent Protection visa (Protection visa application), which was found to be invalid.[1] On 14 November 2015 the applicant was invited by the Minister to apply for a SHEV.[2]
[1] CB12-93
[2] CB88-93
The applicant’s claims for protection are set out in the statutory declaration that accompanied his Protection visa application and are as follows:[3]
[3] CB71-75
a)The applicant is Tamil and Hindu.
b)The applicant was born in Jaffna, but since his birth lived in the Killinochchi district in the Vanni area, a stronghold for the LTTE (Liberation Tigers of Tamil Eelam).
c)The applicant’s father is perceived to be wealthy because he owns a number of shops which have been rented to other Tamils.
d)The applicant relocated to Colombo in 2006 because it was no longer safe to remain in the Vanni area because the LTTE were conscripting young Tamil males and the applicant’s life was in danger.
e)In 2008 the applicant’s parents decided to send the applicant to India because the army carried out frequent checks, and many young Tamil males were detained arbitrarily on grounds of suspicion that they were LTTE cadres.
f)The applicant remained in India until July 2011 when the applicant returned to Killinochchi, Sri Lanka. After his return the applicant was questioned by the Sri Lankan CID (Criminal Investigation Department) on suspicion of being an LTTE cadre because he had recently arrived from India.
g)Believing his life would be in danger if he remained in Killinochchi, the applicant fled to his aunt’s house in Colombo. On 25 August 2012, however, the applicant returned to Killinochchi because his father was ill.
h)When he arrived in Killinochchi the applicant learned the CID were causing problems for his family, and that the CID had threatened to harm his family if they did not pay 15 lakhs rupees to the CID. The CID had told the applicant’s father than they would press false charges against his sons and send his sons to jail if the sum of money was not paid.
i)At 6 pm on 25 August 2012 four armed men in civilian clothing came to the applicant’s home in a white van and forcibly took the applicant away. The applicant was taken to the CID office situated in Iranamadu where he was detained for approximately three hours, tortured, and told that if his father did not pay the money they demanded then the CID would press false charges against the applicant and send him to jail.
j)The applicant’s father paid 3 lakhs rupees to the CID to secure the applicant’s release and a CID officer told the applicant’s father that he had to pay the balance of 12 lakhs rupees otherwise the CID would demand the applicant’s father’s shop be transferred to the CID officers.
k)After the applicant was released his parents decided to send him to a safe country because it was no longer safe to remain in Sri Lanka. After he arrived in Australia the applicant learnt that the CID and the CID officer have gone in search of the applicant and his brother.
l)The applicant believes he will be seriously harmed and possibly killed by the Sri Lankan authorities, particularly the CID, because the applicant’s father is perceived to be wealthy, he is a young Tamil male from an LTTE-controlled area and, because he fled Sri Lanka illegally and claimed asylum in Australia, he will be perceived to be an LTTE supporter. The applicant also believes he is at risk of being harmed by the CID officer.
On 1 August 2016 a delegate of the Minister refused to grant the applicant a SHEV,[4] and the matter was referred to the IAA for review on 3 August 2016.[5]
[4] CB159-194
[5] CB195-197
On 9 August 2016 the applicant, through his legal representative, provided submissions to the IAA about why the delegate’s decision was wrong and which referred to country information.[6] The representative submitted the applicant’s claims for protection are “consistent” with “reliable country information”; as a Tamil from the North of Sri Lanka which is a LTTE-controlled area, there is a possibility the applicant will be interrogated and ill-treated due to his profile as a failed asylum seeker who departed Sri Lanka illegally; Sri Lankan security forces maintain effective control throughout Sri Lanka; the IAA should consider the applicant’s claims for complementary protection; on his return to Sri Lanka the applicant will be questioned at the airport “while checks are undertaken” and “the Authorities at the airport will notify his return to his home area, his previous arrest and detention on suspected LTTE involvements and his escape will come to the attention of the authorities” and the applicant will be detained for additional questioning, subjected to harm “due to the cumulative basis” and tortured; and the applicant will “have to suffer continually in detention until a relative and/or family bail him [sic]”.
[6] CB198-200
IAA decision
The IAA considered the applicant’s submissions dated 9 August 2016 not to constitute “new information” as defined in s.473BB and s.473DC(1) of the Migration Act 1958 (Cth) (Act), and said it and considered them in its review.
The IAA was not satisfied the applicant had a well-founded fear of persecution. The IAA found the applicant would not face harm that would amount to serious harm, or that the applicant would face a real chance of persecution now or in the reasonably foreseeable future, either in the period following his arrival or on his return home, whether because of his illegal departure, his having made a claim for asylum in Australia, or by reference to his father’s perceived wealth, or any combination of these factors.[7]
[7] CB220, [54]
The IAA accepted the applicant had moved to live with his aunt in Colombo in 2006 and resided there until 2008. The IAA however did not accept the applicant had been actively searched for by the Sri Lankan authorities during this period, noting that the applicant had indicated it was required to register with police and the authorities would have had no difficulties locating him had he been of any interest during that period.[8]
[8] CB212, [8]
The IAA accepted the applicant had undertaken three years study in India towards a Bachelor of Business Administration. The IAA considered the applicant would have been able to provide to the authorities in Sri Lanka documentary evidence of a legitimate period of study for the three years he lived in India; and that such documentary proof wold have allayed any concerns the authorities might have had arising from the applicant’s absence from Sri Lanka due to any involvement with the LTTE over that period.[9]
[9] CB212, [11]
The IAA also accepted the applicant returned to Killinochchi in August 2012 when the applicant’s father was ill. The IAA did not accept the applicant’s claim that the CID had attempted to extort money from the applicant or his family because it found it implausible that, had the event occurred, the applicant’s family would have said nothing about the extortion until after the applicant returned to Killinochchi.[10]
[10] CB212, [12]
The IAA accepted that the applicant’s father was a successful businessman, being the owner of a number of shops, and that he was perceived in his area to be wealthy; and it was prepared also to accept the applicant’s father’s perceived wealth may have been the cause of opportunistic motivation by the CID to extort money from the applicant’s father by arresting the applicant and threatening false charges concerning LTTE involvement to secure the applicant’s release.[11] The IAA, therefore, was prepared to accept the applicant’s claim “in relation to being targeted for arrest in August 2012 by the CID and then released after several hours following his father’s payment of a ransom, and that there was a follow up attendance by CID three days after [the] applicant departed Sri Lanka”.[12] The IAA, however, did not consider that the applicant would have been targeted in August 2012 because of any actual suspicion by the authorities that he had any LTTE connection.[13]
[11] CB213, [14]
[12] CB213, [15]
[13] CB213, [14]
This last finding was based on the IAA’s findings on the applicant’s individual profile of a Tamil male from Northern Sri Lanka and a young Tamil male returning from India in 2011 after the cessation of the Civil War in 2009.[14] The IAA referred to country information that indicated the monitoring of Tamils in the North and East of Sri Lanka had significantly decreased, there had been significant developments for Tamils in the country’s politics, and the situation had generally improved.[15] The IAA also noted that, on the applicant’s own evidence, neither he nor any other members of his family have any actual links to the LTTE, and that country information indicated that mere residence in a former LTTE-controlled area does not in itself give rise to a need for protection.[16]
[14] CB214, [18]
[15] CB216, [29]
[16] CB216. [30]
The IAA found that the Sri Lankan authorities would not have any adverse interest in the applicant for any reasons to do with his profile if he had remained in Sri Lanka or upon his return.[17] Country information indicated that many thousands of ethnic Tamils had returned to Sri Lanka since the end of the Civil War and, therefore, the IAA was not satisfied the applicant’s return to Sri Lanka in the middle of 2011 after a three year period of residence and study in India would add to the applicant’s profile in a way that would involve being imputed with a pro-LTTE political opinion.[18]
[17] CB216. [30]
[18] CB216. [32]
The IAA accepted the applicant would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally;[19] but it was not satisfied the applicant would face harm on his return as a failed Tamil asylum seeker,[20]or that he would face a real chance of persecution now or in the reasonably foreseeable future because he was a failed Tamil asylum seeker who departed Sri Lanka illegally.[21] The IAA also accepted that under the Immigrants and Emigrants Act (Sri Lanka) (IE Act) penalties for departing Sri Lanka illegally include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees,[22] and that country information indicated that asylum seekers with actual or perceived links to the LTTE may be at risk of harm when processed at the airport.[23] The IAA found, however, that the applicant did not have any actual or perceived links with the LTTE and he was not of interest to the former Sri Lankan authorities at the time he left Sri Lanka, and it did not accept the applicant will be at risk of adverse attention from the current Sri Lankan authorities on arrival in Sri Lanka.[24]
[19] CB216, [34]
[20] CB218, [42]
[21] CB218, [49]
[22] CB216, [35]
[23] CB218, [41]
[24] CB218, [41]
Next the IAA considered the applicant’s claims for protection based on his being the son of a wealthy business person, and that extortion and threats of extortion had been made by the CID.[25] While there was no country information before it to indicate that the CID or any other arm of the Sri Lankan authorities is directly involved in extortionate practices, the IAA accepted that elements within the CID in Killinochchi had identified the applicant as the son of a Tamil business person with the capacity to pay ransom monies to secure the applicant’s release from detention in August 2012 and to avoid the threat of false charges in relation to LTTE involvement being brought against the applicant. The IAA, however, considered the events of August 2012 to have been isolated and localised and, having regard to the passage of time, the IAA found the applicant did not face a real chance of serious harm in the context of being the vehicle for extortionate practices by rogue elements of the Sri Lankan government now or in the reasonably foreseeable future.[26]
[25] CB219-220, [50]-[53]
[26] CB219, [52]
For those reasons, the IAA concluded the applicant does not meet the requirements of the definition of “refugee” in s.5H of the Act; and that the applicant did not satisfy the criteria prescribed by s.36(2)(aa) of the Act.
Grounds of application
The applicant’s application contains the following grounds of application:
Ground one-
The IAA has committed jurisdictional error in my case. It has declined its jurisdiction in my case as it has failed to make finding on the following facts. They are:
I arrived in Australia by boat. I will be questioned at the airport while checks are undertaken. The Authorities at the airport will notify my return to my home area, my previous arrest and detention on suspected LTTE involvements and my escape will come to the attention of the authorities. I will be detained for an additional questioning and I will be subject to harm due to this cumulative basis.
The Sri Lankan security forces’ questioning means that they are likely to torture a detainee. This is supported by the country information on Sri Lanka. My record of having lived most of my life in a strong LTTE controlled area, Vanni, and Tamils in his age group and with his similar background were in The LTTE in his area. Why I would not be and why I went to India will be discovered on my arrival as I was suspected in the past and harmed. This record itself is sufficient to raise reasonable suspicions as an LTTE supporter and to harm me on my arrival in Colombo and this fact has been supported by the country information on Sri Lanka as it has accepted my central claims of my past adverse experience at the hands of the Sri Lankan security forces but it declined its jurisdiction by failing to find that my fear of persecution is still well-founded. There is independent and reliable country information (E.g. DFAT Report) before the IAA that the circumstances in which I feared to live in Sri Lanka have not materially changed.
Ground-2
When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me for a hearing/invitation to comment on or to respond to the adverse information on which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments relating to the issues and relied on this to refuse my protection visa in relation to my referred application with the IAA.
I will provide the particulars of these grounds in my Amended Application when it is required by this court.
At the hearing before me the applicant, who is not legally represented, made submissions that repeated the substance of ground 2. He also made submissions that repeated the substance of some the matters stated in ground 1.
Ground 1
Ground 1 claims the IAA failed to make a finding in relation to the following facts or sets of facts:
a)What would occur to the applicant if he were to return to Sri Lanka by airplane. The ground claims the applicant will be “detained for an additional questioning” and he “will be subject to harm due to this cumulative basis”.
b)The likelihood of the applicant being tortured as a detainee because the applicant had lived most of his life in a strong LTTE-controlled area; that Tamils in his age group with similar background were in that LTTE-controlled area; the applicant had travelled to India. The ground claims these matters are sufficient to raise reasonable suspicions that the applicant was an LTTE supporter.
c)The applicant’s fear of persecution being well-founded.
The IAA did consider and did make findings about what would occur to the applicant on his return to Sri Lanka. I have set out these findings in paragraph 14 of these reasons. The IAA also considered whether the applicant would be exposed to risk on account of his being a Tamil who had lived for most of his life in an LTTE-controlled area. I have set out these findings in paragraph 12 and 13 of these reasons. Finally, the IAA did consider whether the applicant had a well-founded fear of persecution. Most of its reasons for decision is devoted to that question.
Ground 1 also claims the IAA failed to consider the applicant’s claims cumulatively. That is incorrect. In paragraph 54 of its reasons, under the heading “Cumulative circumstances” the IAA makes findings based on “the applicant’s circumstances as a whole”. Further, as my summary of its reasons shows, the IAA considered each of the applicant’s claims.
At the hearing before me the applicant referred to his not having been in Sri Lanka during the period from 2008 to 2011, that he does not have any proof to support his having studied in India during that period and, for that reason, if he were to return to Sri Lanka the CID would suspect him of having helped the LTTE. This claim goes no further than expressing disagreement with the IAA’s finding that the applicant would have been able to provide to the authorities in Sri Lanka documentary evidence of a legitimate period of study for the three years he lived in India; and that such documentary proof would have allayed any concerns the authorities might have had arising from the applicant’s absence from Sri Lanka due to involvement with the LTTE.[27]
[27] CB212, [11]
Ground 2
This ground contends the IAA was required to invite the applicant to a hearing before it, or to invite the applicant to comment on or respond to adverse information. As submitted by the Minister, this ground misunderstands the procedural requirements for the conduct of an IAA review under the Act. I have set out elsewhere the provisions that govern the nature of an IAA review, and it is unnecessary to repeat them here.[28] I need only refer to four things. First, the IAA is not obliged to invite the applicant to appear before it. Second, s.473DA(1) provides that Div. 3 of Part 7AA of the Act, together with s.473GA and s.473GB is to be taken as to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. Third, those requirements do not oblige the IAA to give an applicant notice of the possibility of its making an adverse finding.[29] Fourth the Tribunal invited the applicant’s representative to make submissions, the applicant’s representative did make submissions to the IAA, and the IAA considered them.[30]
[28] EEI17 v Minister for Immigration & Anor [2018] FCCA 527 at [11]-[24]
[29] DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, at [65] (Barker J)
[30] CB195-200
Ground 2, therefore, fails.
Disposition
I propose to order that the application be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 27 April 2018
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