DJF17 v Minister for Immigration

[2018] FCCA 587

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 587

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority failed to consider the future harm that the applicant may – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant: DJF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2365 of 2017

Judgment of: Judge Street

Hearing date: 12 March 2018

Date of Last Submission: 12 March 2018

Delivered at: Sydney

Delivered on: 12 March 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Hodges Legal

Solicitors for the Respondents: Ms D Watson
Australian Government Solicitor

ORDERS

1. The Court grants leave to the applicant to rely upon the amended application filed on 24 February 2018.

2. The amended application is dismissed.

3. The applicant to pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2365 of 2017

DJF17

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 made on 3 July 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The Authority at the commencement of its reasons identified that the applicant claimed to be a Tamil-speaking Muslim from the Mannar District, Northern Province, Sri Lanka. The applicant arrived in Australia on 2 October 2012 and lodged an application for a Safe Haven Enterprise visa on 10 March 2016. On 20 January 2017 a delegate of the Minister found the applicant failed to meet the criteria for the grant of the visa.

3. The delegate, in the delegate’s reasons, expressly referred to the applicant’s claims as including a claim that the applicant is of Tamil ethnicity, which the delegate accepted and took into consideration when determining whether the applicant met the criteria for the grant of a protection visa.

The Authority’s decision

1. Following the delegate’s decision, the Authority wrote to the applicant on 25 January 2017, identifying that the applicant’s application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information, and provided an attached fact sheet giving the applicant an opportunity to put on new information and submissions.

2. The applicant did put on submissions and new information that was identified in the Authority’s reasons and were taken into account by the Authority in accordance with the requirements of s 473DD of the Act. Materially for the purpose of the present case, the submission dated 15 February 2017 advanced on behalf of the applicant, put a submission to the Authority that the delegate had failed to consider an essential claim made out on the face of the information before the delegate. The submission referred to the applicant being described as being of Tamil ethnicity and Muslim religion. The submission advanced that the delegate failed to consider and assess if the applicant would suffer serious or significant harm on the basis of his Muslim ethnicity, which it was submitted was closely entwined with his Muslim religion. Reference was also made to attacks on Muslim minorities essentially due to their faith in Islam. The submissions advanced that the Authority’s decision would be infected with jurisdictional error should the Authority, like the delegate, make a finding on the basis of a wrong factual finding, ie. the applicant’s ethnicity is Tamil.

3. The submissions contended that while the applicant may speak Tamil, on the basis of a DFAT report cited in the submissions, the applicant’s ethnicity is that he is a Muslim notwithstanding that the applicant’s religion is Islam. The submission advanced that the Authority is likely to fall into error should the Authority fail to consider this submission and most importantly assess this claim which the delegate did not consider. The submission on its face was a clear submission advanced on behalf of the applicant that he was not claiming to fear harm by reason of his Tamil ethnicity, but rather on account of his Muslim ethnicity.

4. The Authority made express reference to the submissions of 15 February 2017 and after referring to other new information, including information to which the Authority was entitled to have regard under s 473DE(3)(a) of the Act. The Authority then summarised the applicant’s claims. The Authority expressly referred to the proposition that it was submitted on the applicant’s behalf to the Authority that the applicant would also suffer serious harm on account of his Muslim ethnicity which is incidentally closely entwined in Sri Lanka with the Muslim religion.

5. The Authority made reference to the applicant fearing harm on the basis of being imputed as being an LTTE supporter. The Authority correctly identified the applicable law in an annexure incorporated into the Authority’s reasons. The applicant had initially claimed to be of Tamil ethnicity and a Muslim in the LTTE controlled area of Sri Lanka.

6. In the late 1990s, the applicant owned a shop and used to obtain bicycle parts, a practice which the authorities prevented in 2000 because they could be used to make bombs. The applicant was suspected of providing these parts to the LTTE and was detained, interrogated and accused of supplying parts to the LTTE. The applicant was beaten and ultimately released at the end of the day. The applicant was required to report every day to a Sri Lankan Navy (“SLN”) base where he had been detained, which he did for seven days.

7. The applicant was harassed by officers, who would take things from his shop without payment and demand money from him. The applicant was threatened with imprisonment, so he left the shop in the hands of an uncle and moved away to a relative’s house for three months, and then arranged to travel to Hong Kong for work through an agent. The applicant worked illegally in Hong Kong for two years, but was detected by police and returned to Sri Lanka in 2002. The applicant then worked with his brother and father, who had a hotel and restaurant, and took over management in 2008. During this time the LTTE would demand supplies, which the applicant was too afraid to refuse. After the peace process began in 2009, the authorities began arresting suspects who were friendly with the LTTE. The applicant became scared about people disappearing and went into hiding. In 2012, the applicant travelled to Chilaw and became acquainted with an agent who helped the applicant flee to Australia in September 2012. The applicant claimed government officers visited his home after he left and that his wife had told them he was in Australia.

8. The Authority accepted the majority of the applicant’s claims as to what had occurred to him when he was in Sri Lanka. The Authority however took into account recent country information, finding the applicant would no longer attract the attention of the authorities and therefore there was not a real chance that he would face persecution on return nor a real risk that he would face significant harm on return.

9. The Authority considered the applicant’s claims on the basis that he would be returning as a failed asylum seeker who had illegally departed Sri Lanka, and as a Tamil speaking Muslim from the north with LTTE links and imputed political opinion, and a person perceived to be wealthy for the purpose of his refugee claims. The Authority also considered whether the applicant would face significant harm on his return and consideration was given to the risk the applicant may be detained for a short period of time in poor prison conditions.

10. The Authority concluded the applicant did not face a real chance of persecution or a real risk of significant harm. In the course of the Authority’s reasons, the Authority expressly referred to the applicant’s application and written statement in support of the application for the Safe Haven Enterprise visa in which the applicant described his ethnicity as Tamil and his religion as Muslim/Islam. The Authority noted that the applicant in the Safe Haven Enterprise visa interview described himself as a Tamil-speaking Muslim.

11. The Authority referred to country information, confirming that Muslims are viewed as an ethnicity and not only a religious group in Sri Lanka. The Authority made reference to the country information supporting that proposition. The Authority accepted, based on the evidence of the applicant at the Safe Haven Enterprise visa interview and the country information, that the applicant is a Tamil-speaking Muslim. That finding by the Authority was one consistent with the submissions advanced on behalf of the applicant dated 15 February 2017 in which it was expressly advanced on behalf of the applicant that it would be in error to characterise his ethnicity as Tamil.

12. The Authority turned to the topic of the applicant fearing harm as a Tamil-speaking Muslim from the north with LTTE links and imputed political opinion. The Authority expressly referred to country information, including societal discrimination on the basis of ethnicity that can occur. The Authority was satisfied the applicant will not face a real chance of persecution from the Sri Lankan authorities due to any real or perceived links to the LTTE for an imputed political opinion and/or as a young Tamil-speaking Muslim male from the north if returned to Sri Lanka now or in the reasonably foreseeable future.

13. The Authority was not satisfied there is a real chance the applicant will face harm due to his or his family’s perceived wealth if returned to Sri Lanka now or in the reasonably foreseeable future. The Authority found that the process to which the applicant would be subject under the Immigrants and Emigrants Act 1949 (Sri Lanka) would be the result of a law of general application and does not amount to persecution for the purpose of s 5H and 5J of the Act. The Authority was not satisfied the applicant faces a real chance of persecution on the basis of being a returned Tamil-speaking Muslim asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future.

14. The Authority found that the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act and found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act, and did not meet the criteria in s 36(2)(a) and s 36(2)(aa) of the Act, and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   Ground 1

   The IAA committed jurisdictional error by failing to assess future harm the applicant may face due to his membership in the Tamil ethnic group.

   Particulars

   The applicant in his SHEV application stated that he belonged to the Tamil ethnic group [CB 42.32].

   The applicant in his written statement claimed that he was of Tamil ethnicity [CB 66].

   The delegate accepted that the applicant was of Tamil ethnicity [CB 108].

   The IAA accepted the applicant was a “Tamil speaking Muslim” [CB 168.22].

   The IAA found that the applicant will not face a real chance of persecution as a “young Tamil speaking Muslim male from the north” [CB 173.39].

   The IAA failed to deal with the claim put forward by the applicant that he belonged to the Tamil ethnic group [CB 42.32] and considered himself to be of Tamil ethnicity [CB 66].

   The IAA’s assessment of the applicant’s claims did not include an assessment of the applicant’s claims associated with his Tamil ethnicity.

   There was an obligation to assess if the applicant may face harm due to his Tamil ethnicity/membership in the Tamil ethnic group.

   The assessment of harm the applicant may face due to him being a “Tamil speaking Muslim” fails to consider a particular social group claim that was made out on the facts.

   The IAA failed to consider that the applicant considered himself to be a member of two separate ethnic groups (i.e. Tamil ethnic group and Tamil speaking Muslims).

   Ground 2

   The IAA’s assessment of the applicant’s claims is affected with jurisdictional error, as it failed to consider future harm the applicant may face due to his membership in the Tamil ethnic group.

   Particulars

   The applicant in his SHEV application stated that he belonged to the Tamil ethnic group [CB 42.32].

   The applicant in his written statement claimed that he was of Tamil ethnicity [CB 66].

   The delegate accepted that the applicant was of Tamil ethnicity [CB 108].

   The IAA accepted the applicant was a “Tamil speaking Muslim” [CB 168.22].

   The IAA found that the applicant will not face a real chance of persecution as a “young Tamil speaking Muslim male from the north” [CB 173.29].

   The IAA found that the applicant does not face a real chance of persecution on the basis of being a returned Tamil speaking Muslim asylum seeker who departed Sri Lanka illegally [CB 176.58].

   The IAA failed to consider future harm the applicant may face due to his membership in the Tamil ethnic group.

   The IAA’s assessment [CB 169.26 – CB 173.39] was undertaken on the basis of the applicant being considered to be a “Tamil speaking Muslim”

   The IAA’s assessment [CB 174.44 – CB 177.59] was undertaken on the basis of the applicant being considered a “returned Tamil speaking Muslim asylum seeker”.

   The IAA’s assessment failed to consider if the applicant will face a real chance of persecution from the Sri Lankan authorities due to any real or perceived links to the LTTE, for any imputed political opinion and/or as a young Tamil male of Tamil ethnicity from the north if returned to Sri Lanka [CB 173.39].

   The IAA’s assessment failed to satisfy itself if the applicant faces a real chance of persecution on the basis of being a returned Tamil asylum seeker of Tamil ethnicity [CB 176.58].

2. Grounds 1 and 2 are directly inconsistent with the submission that was advanced to the Authority on behalf of the applicant dated 15 February 2017, in which it was said that it would be an error for the Authority to treat the applicant as advancing a claim to fear harm based on his ethnicity being Tamil. Those submissions expressly referred to the applicant having Muslim ethnicity. The Authority clearly took into account those submissions in the finding that the Authority made at paragraph 22 where it also took into account country information and the applicant’s description of himself as a Tamil-speaking Muslim.

3. The applicant’s claim to fear harm that was advanced was as a Tamil-speaking Muslim to the Authority. It was that claim to fear harm that the Authority addressed and in respect of which the Authority made dispositive findings that were open to the Authority as summarised above. There is no substance in the submission that the Authority failed to take into account the applicant’s Tamil ethnicity in the adverse findings. Rather, the Authority consistent with the submission that was advanced to it, took into account the proposition that it would be wrong to describe the applicant’s ethnicity as Tamil.

4. In those circumstances it is clear that the Authority took into account the applicant’s Tamil ethnicity as well as being a person of Muslim ethnicity in the description “a Tamil-speaking Muslim”. That the Authority was assessing the ethnicity of the applicant as a Tamil-speaking Muslim is apparent from the Authority’s reasons, including the express reference to discrimination on the basis of ethnicity as summarised above.

5. Mr Tambimuttu submitted that there should have been an express finding made the same as the delegate in considering the applicant’s claim of Tamil ethnicity. That was the very subject of the submission put to the Authority that it would be in error to do so. It was raised with Mr Tambimuttu that if the Authority’s reasons were read so that the reference had been made to a young Tamil-speaking Muslim male that omitted the words speaking Muslim, there could not be said to be any such error as advanced in ground 1 and 2. Mr Tambimuttu accepted this proposition. Mr Tambimuttu, nonetheless, submitted that there should have been an express finding in that regard and that the Authority’s reasons did not address the applicant’s claim to belong to the Tamil ethnic group.

6. There is no substance in the alleged argument on behalf of the applicant. It is arguably improper for a legal representative to advance one argument to the Authority suggesting the Authority would be in error by following the delegate in a particular characterisation of a claim and then to turn around and allege an error by the Authority in accepting the submission advanced on behalf of the applicant to the Authority. That is the substance of what has occurred with the present case.

7. On the face of the material before the Court, the Authority took into account the applicant being a Tamil-speaking Muslim, which was the applicant’s claim, and made a dispositive finding that was open to the Authority in that regard. The reference to the applicant being a Tamil-speaking Muslim clearly took into account the ethnicity of the applicant both as a Tamil and as a Muslim. No jurisdictional error as alleged in ground 1 is made out. For the same reasons no jurisdictional error as alleged in ground 2 is made out.

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

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  6 April 2018