Director of Public Prosecutions18 v Minister for Home Affairs

[2018] FCCA 3350

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPP18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3350

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s findings were illogical or irrational – whether the Authority’s findings were legally unreasonable – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: DPP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1930 of 2018

Judgment of: Judge Street

Hearing date: 19 November 2018

Date of Last Submission: 19 November 2018

Delivered at: Sydney

Delivered on: 19 November 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Hodges Legal

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,700.00.

DATE OF ORDER: 19 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1930 of 2018

DPP18

Applicant

And

MINISTER FOR HOME AFFAIRS

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 19 June 2018 affirming the 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 was found to be a Tamil Hindu born in the Vavuniya district of the Northern Province. The applicant arrived in Australia as an unauthorised maritime arrival on 25 April 2013.

3. The applicant claimed to fear harm because of his brother and father’s involvement in the Liberation Tigers of Tamil Eelam (“LTTE”) and feared harm from the Sri Lankan Army and the Criminal Investigation Department (“CID”) because of his Tamil ethnicity, his Hindu religion and for being a member of the Tamil Makkal Viduthalai Pulikal (“TMVP”) party and escaping the military run rehabilitation camp, as well as being a failed asylum seeker.

4. On 26 October 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise Visa.

5. The Authority wrote to the applicant on 31 October 2017, explaining that the application 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 submissions that were expressly referred to in the Authority’s reasons.

6. The Authority identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority had regard to the submissions insofar as they engaged with the delegate’s decision. The applicant’s submissions identified new information which the Authority considered in accordance with the requirements under s 473DD of the Act.

7. The Authority summarised the applicant’s claims and evidence. The Authority found the applicant had provided consistent information about living in the Vavinuya district until he was about seven years old and then moving to live with his aunt in Trincomalee. The Authority considered the applicant gave a consistent description in respect of his classmates being killed in 2006. The Authority noted there were discrepancies in the applicant’s disclosure as to whether he fled Sri Lanka to Malaysia in 2006, but was prepared to accept that the applicant may have been hesitant to provide information shortly after his arrival in Australia.

8. The Authority considered that the applicant was unable to provide any information about his brother’s or father’s role with the LTTE. The Authority did not accept the applicant’s claim regarding a parcel sent to London containing one of the LTTE leaders’ caps. The Authority in this regard found the applicant’s evidence was extremely vague and unconvincing. Taking into account country information, the Authority was prepared to accept the applicant’s brother and father were associated with the LTTE. The Authority found however that there was no credible information to support any claim that they held any high rank in the LTTE or that they were anything other than low-profile LTTE members.

9. Taking into account country information, the Authority was prepared to accept the applicant was detained and beaten in 2005 after an incident involving an explosion and that the applicant was detained and/or arrested, questioned and threatened on a number of occasions during round-ups, including in 2005, 2006 and 2009. The Authority considered but did not accept the applicant’s claim that some people tried to abduct him in a white van in November 2012 given that the claim was not raised in the arrival interview or in the statement of claims. The Authority did not accept the applicant’s claims regarding the payment of bribes to facilitate his exit and re-entry to Sri Lanka in 2006 and 2009. The Authority found the applicant’s evidence in this regard to be vague and unconvincing.

10. The Authority accepted the applicant’s claim that he was questioned by the Karuna Group on return to Sri Lanka. The Authority however noted that the applicant did not specifically refer to being questioned about his family’s involvement with the LTTE, and in those circumstances the Authority found the suggestion that the Karuna Group may have known about his brother and father’s involvement with the LTTE was purely speculative.

11. The Authority noted that the applicant had given an inconsistent account regarding when he joined the TMVP. Having regard to country information, the Authority noted that some of the details provided by the applicant about the TMVP were consistent, however the Authority considered that the applicant’s knowledge was rudimentary for someone who purported to have been a member of the TMVP for three years. Whilst the Authority did not accept the applicant was a TMVP member, it was prepared to accept that the applicant worked with the TMVP from 2009 until his departure, undertaking jobs which were consistent with the applicant being a low-level supporter of the organisation. Taking into account country information, the Authority did not accept the applicant was at risk of being sent to a rehabilitation camp and did not accept the applicant left Sri Lanka for the reasons claimed.

12. The Authority found the applicant’s claim that he paid bribes at the airport in 2012 was fabricated to enhance his claims for protection. The Authority found the applicant was able to depart Sri Lanka legally using his own passport and found that the applicant was not of an interest at that time to the authorities.

13. The Authority considered that whilst the applicant had claimed to fear harm as a result of his Hindu religion, he provided no evidence that he had ever suffered any harassment, discrimination or violence as a result of his religion. It was in those circumstances that the Authority did not accept the applicant would suffer harm on return as a result of his religion.

14. The Authority took into account various country information in relation to any fear of harm from any LTTE links, and the Authority had regard to the United Nations High Commissioner for Refugees Guidelines from 2012. The Authority found that there was no information before it to suggest that low-level TMVP supporters, such as the applicant, were at risk of serious harm in Sri Lanka and found the applicant’s profile in relation to the LTTE links was very low and historical, and in those circumstances, the Authority found that the applicant would not be subjected to harm on return on this basis.

15. The Authority was not satisfied the applicant met the requirements of s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The sole ground in the application is as follows:

   1. The Authority committed jurisdictional error by making a finding that was illogical, irrational and unreasonable,

   Particulars

   a. At paragraph 7, the Authority outlined the applicant's claims. In particular, the applicant claimed that he was approached by two members of the Karuna Group approximately five days after he returned to Trincomalee from Malaysia.

   b. At paragraph 18, the Authority held that the applicant's suggestion that the Karuna Group may have known about his father and brother's involvement with the LTTE, the was ''purely speculative".

   c. At paragraph 19, the Authority referred to the country information about the Karuna Group, noting that it was founded by a 'breakaway LTTE leader Colonel Karuna'.

   d. Given that the Authority was aware of the connection between the LTTE and the Karuna Group, it was illogical to have considered that the suggestion that the Karuna Group may have known about his father and brother's involvement with the LTTE, the was "purely speculative".

2. Mr Hodges, solicitor on behalf of the applicant, confirmed that ground 2 is not pressed.

Ground 1

1. In relation to ground 1, Mr Hodges took the Court to the reasoning of the Authority and, in particular, the applicant’s claims in relation to his father and brother in relation to paragraph 13 and the finding in paragraph 14 that the Authority was prepared to accept that the applicant’s brother and father were associated with the LTTE, albeit that they were found to be low-profile LTTE members.

2. Mr Hodges took the Court to the country information in relation to the TMVP being the political wing of the paramilitary group formerly known as the Karuna Group formed by a breakaway LTTE leader, Colonel Karuna, who later split from the LTTE in 2004. Mr Hodges focussed on the fact that the Authority had accepted the applicant’s brother and father were associated with LTTE as low-profile supporters and submitted that the finding by the Authority at paragraph 18 that the suggestions that the Karuna Group may have known about the father and brother’s involvement with the LTTE was purely speculative was illogical and irrational or legally unreasonable. Mr Hodges submitted that the Authority should have considered the connection between the Karuna Group and the LTTE and submitted that the finding that the knowledge of the Karuna Group was purely speculative was legally unreasonable.

3. It is apparent from the Authority’s reasons, which are not to be read with a keen eye for error, that the Authority provided a logical and rational reasons in support of its finding as to the knowledge of the Karuna Group. In that regard, the Authority referred to the fact that the applicant did not specifically refer to being questioned by the Karuna Group about his father and brother’s involvement with the LTTE. That is a logical and rational basis to support the finding made by the Authority that the proposition that the Karuna Group had knowledge of the father and brother’s involvement was purely speculative. The reasons given by the Authority as to the absence of any suggestion of questioning about the association means that the finding in paragraph 18, the subject of challenge, cannot be said to lack an evident and intelligible justification.

4. I accept the first respondent’s submission that no extreme illogicality has been established in respect of the adverse finding and that the disagreement with the adverse finding is one in respect of which reasonable minds could differ about the assessment of the evidence. In these circumstances, the finding cannot be said to be illogical, irrational or legally unreasonable. No jurisdictional error as alleged in ground 1 is made out.

Conclusion

1. Accordingly, the application is dismissed.

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

Date: 11 January 2019