DKK16 v Minister for Immigration

[2017] FCCA 3320

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKK16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3320

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority (Authority) – whether the Authority erred in not finding that the applicant would be imputed with political opinion – whether the Authority’s rejection that the applicant would be subject to future extortion was illogical and irrational – whether the Authority failed to consider and make enquiries regarding evidence – whether the Authority failed to assess the risk to the applicant in conducting business in Sri Lanka – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CA, 473DC, pt.7AA

Cases cited:

DZU16 v Minister for Immigration & Border Protection (2017) 321 FLR 306; [2017] FCCA 851
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39

Applicant: DKK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3133 of 2016

Judgment of: Judge Smith

Hearing date: 6 December 2017

Date of Last Submission: 6 December 2017

Delivered at: Sydney

Delivered on: 6 December 2017

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Counsel for the First Respondent: Ms R Graycar

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The applicant is granted leave to file in Court the amended application.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3133 of 2016

DKK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

Background

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made on 18 October 2016.  The Authority affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Sri Lanka who arrived in Australia, in the Cocos Islands by boat, without a visa on 25 September 2012.  Although the Migration Act 1958 (Cth) (Act), at that time, did not include the notion of an unauthorised maritime arrival, those factual circumstances about which there is no dispute, meant that the applicant did fit that description when that term was included in the Act the following year.

3. As a result of those circumstances, the applicant was unable to make a valid application for a visa, unless the Minister exercised his non-compellable power to allow such an application.  Thus, while he lodged an application for a protection visa on 8 September 2013, that application was invalid.  Subsequently however, on 30 November 2015, the applicant was notified that the Minister had exercised his power to allow him to make a valid application and he did so by lodging an application for a protection visa on 6 January 2016.

4. The claims that the applicant made in support of that application were contained in two statutory declarations:  the first, which had accompanied the invalid application and the second, which accompanied the valid application.  Those claims are summarised in [13] of the Authority’s reasons and I set that out below:

   13.The applicant’s claims are contained in the information referred and subsequently given to the IAA. They can be summarised as follows:

   ·The applicant was born in Kilinochchi, Northern Province. The applicant relocated within the Vanni and Jaffna areas during the civil war to avoid the conflict.

   ·The applicant operated a textile shop in Vanni from 2002 when the area was under the control of the Liberation Tigers of Tamil Eelam (LTTE). LTTE members were customers of his shop.

   ·The applicant moved to army controlled Jaffna in 2006 to avoid LTTE conscription in Vanni. In Jaffna he operated another textile business.

   ·While in Jaffna he was detained in army round ups several times. He was fearful on these occasions because his identity card showed that he was from LTTE controlled Vanni.

   ·In 2007 the army came to his house during a round up and searched the house for weapons while he was restrained at gun-point.

   ·Between 2008 and 2011 he was visited by the Criminal Investigation Department (CID) at his shop on 10 to 15 occasions. They accused him of being involved with the LTTE because he had previously managed a business in LTTE controlled Vanni. They extorted money or goods and threatened he would be detained if he did not comply. Other Tamil and Muslim shop owners were harassed in a similar manner.

   ·In 2011 he applied for a visa to travel to India in an attempt to avoid further harassment. The CID became aware of this and threatened that if he tried to leave Sri Lanka they would arrange for him to the arrested at the airport.

   ·To avoid further harassment he moved to Vanni in 2011 and began working in the coconut trade. The CID became aware that he was in Vanni and came to the market looking for him. He kept a low profile to avoid the CID.

   ·He left Sri Lanka in 2012. Since his departure the CID have visited and harassed his wife. She has moved regularly, but they continue to pursue her and demand money.

   ·In 2014 he received an anonymous telephone call in Australia demanding that he deposit money into his wife’s bank account. He has received seven or eight similar calls, the last one being in June 2015.

   ·The applicant fears harm from the CID, government authorities and paramilitary groups on return to Sri Lanka. He fears that the authorities cannot protect him. His fear extends to all of Sri Lanka. He fears that he has been imputed with an LTTE profile. His representative contends that he is a member of a group “Tamil businessman” and that Tamil businessmen with perceived LTTE links are targeted for harm. The applicant fears he will be mistreated on return in the same manner as other Sri Lankans who left illegally and have claimed asylum. He is worried that if he returns to Sri Lanka and has a child, this child could be subject to the same harassment he and his wife have experienced.

5. On 30 August 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate also found that the applicant was not an excluded fast-track review applicant. In all of the circumstances and, once again, there is no dispute about this, the applicant became a fast-track review applicant. The delegate’s decision was a fast-track reviewable decision, and so was referred to the Authority for review under s.473CA of the Act.

6. After that referral, the applicant’s migration agent sent to the Authority a submission supporting his claims and, in addition, by email dated 11 October 2016 sent further documents to the Authority which had not been before the delegate.  One of those documents was a reference from a member of the Sri Lankan Parliament dated 10 October 2016.  On 18 October 2016, the Authority made a decision to affirm the delegate’s decision. 

IAA’s decision

1. The reasons for the Authority’s decision are set out accurately in the respondent’s submissions, at [8] to [27], and I set those out below:

   8The IAA accepted that the applicant moved between Vanni and Jaffna to avoid civil war conflict and LTTE conscription and accepted that as a result the applicant had a subjective fear of harm on return. However the IAA also noted that the civil war ceased in 2009, and the LTTE no longer exists as an organised force in Sri Lanka and there is no real chance the applicant could be conscripted or harmed by the LTTE in the future, [17].

   9The IAA accepted that while in Jaffna the applicant was detained in regular army round ups and that the army searched his house on one occasion. The IAA accepted that there continued to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils. However based on country information regarding the changing situation in Sri Lanka, the IAA was not satisfied that there was a real chance of serious harm arising for the applicant due to his experiences during the civil war and in the period immediately after the war, [18].

   10The IAA was not satisfied that the claimed regular harassment from the CID from 2008 to 2011 indicated that the applicant was imputed with an LTTE profile. The IAA, noting that the applicant’s connection with the LTTE was limited, found that if the authorities had a serious concern that the applicant had LTTE connections he would have been detained by the CID, or other security authorities, and possibly charged under the Prevention of Terrorism Act. The IAA was not satisfied that the applicant had been imputed with an LTTE profile by the authorities and found there was not a real chance of serious harm on this basis, [19].

   11The IAA did not accept the applicant’s claim that he was harassed about his planned travel to India, finding that if he were of concern he would not have simply been threatened with arrest but arrested, [20].

   12The IAA accepted that the people visiting the applicant at his shop may have threatened him by accusing him of being linked to the LTTE in order to enforce their extortion demands, [21].

   13Further, with respect to the applicant’s extortion claim, the IAA had regard to country information and found there was no independent information before it to show that extortion rings were operated by CID officers and that the information before it did not support the applicant’s claim of widespread extortion by the CID. The IAA found that it could not entirely discount that the CID was involved in the extortion, but was not satisfied that this indicated a well-founded fear of persecution in the future from either paramilitary groups, the CID or a combination of the two, on the basis that the paramilitary groups had largely disbanded and the power of the CID had been restricted, [22].

   14With respect to the letter submitted from the Sri Lankan MP dated 10 October 2016, the IAA found inconsistencies between the content of that letter and the applicant’s own claims, [23]–[25]. The IAA therefore gave the document little weight in assessing the applicant’s claims, and preferred the country information to the contention in the letter that it was not safe for the applicant to return to Sri Lanka, [26].

   15With respect to the applicant’s claims that he was a member of a group of “Tamil Businessmen”, noting the improvements in the security situation, the IAA found the likelihood of the applicant being harassed, extorted, harmed or kidnapped by the CID or paramilitary groups to be remote. The IAA was therefore not satisfied that there was a real chance of serious harm arising for the applicant on the basis of past extortion or for being a Tamil businessman, [27].

   16On the basis of its finding that the applicant did not have any links with the LTTE and was not involved in any other activities that the country information indicated would cause him to be of concern to authorities now, including that if he was identified as coming from a LTTE controlled area (see [29]), the IAA was not satisfied that there was a real chance of serious harm arising for the applicant on the basis of being a Tamil, [28].

   18The IAA found that the discrepancies in the applicant’s evidence about the number of times he claimed to have received anonymous phone calls demanding money while he was in Australia, brought the veracity of the applicant’s claims into doubt. Noting also that the applicant could not explain how the purported caller obtained his telephone number, the IAA found it was not satisfied that the applicant received telephone calls demanding money as claimed, [31].

   19With respect to the applicant’s illegal departure the IAA found it likely that on return the applicant would be charged under the Immigrants & Emigrants Act, fined and released, or if he pleaded not guilty he would be released on his own personal surety. The IAA was not satisfied that the imposition of a fine would constitute serious harm and if the applicant were to have difficulty meeting the cost of the fine there was scope to request that the fine be paid by instalment, [36].

   20The IAA accepted that the applicant would be subject to questioning and investigation on return, [37], but found given the applicant did not have a connection or a perceived connection to the LTTE, he would not be subjected to any mistreatment on arrival back to Sri Lanka that would extend beyond routine processing or which would amount to serious harm, [39].

   21The IAA noted that the prison conditions in Sri Lanka did not meet international standards and that there was a lack of resources, overcrowding and poor sanitary conditions. The IAA was not satisfied there was a real chance that the applicant would be subjected to torture or other serious harm during the brief period of detention required to complete the process of investigation, or while on remand, [40].

   22The IAA accepted that the applicant would be detained and that the period of detention could extend up to four days until his matter presented to a magistrate for bail consideration. However the IAA found this did not amount to serious harm. The IAA further found that the procedures under which the applicant as a returnee would be subject are applied on a non-discriminatory basis under a law of general application, and therefore did not constitute persecution for the purpose of sections 5H(1) and 5J(1) of the Act, [41].

   23Based on the same information and for the reasons set out above the IAA was satisfied that there was not a real risk that the applicant would face significant harm for any of the claimed reasons, [48].

   24The IAA was not satisfied that the treatment the applicant would face either during the investigation process or while being detained at the airport, amounted to significant harm. Further the IAA was not satisfied that even if the applicant was required to spend a period of time in prison while waiting to appear before a magistrate that he would face significant harm as defined, [49].

   25As the IAA found the applicant was not a person of interest to the Sri Lankan authorities, it was not satisfied that there was a real risk that the applicant would be subjected to mistreatment during any possible brief period of detention on return, [50].

   26The IAA accepted that the applicant may be subjected to poor prison conditions during any possible brief period of detention but country information confirmed that this would be due to overcrowding, poor sanitation and lack of resources. The IAA found this did not amount to the death penalty, arbitrary deprivation of life or torture and the evidence did not indicate there was an intention to inflict pain or suffering or extreme humiliation, [51].

   27The IAA was therefore not satisfied that any questioning or the imposition of a fine amounted to significant harm under section 36(2A) and 5 of the Act.

Consideration

1. The applicant raises four grounds. 

Ground 1

1. The first ground is that the Authority fell into jurisdictional error in failing to find that the applicant would be imputed with political opinion.  The submission was, in essence, that the rejection by the Authority of the imputation of a political opinion in the applicant was not properly dealt with because, once it had accepted that the applicant had been the subject of extortion, the IAA ought to have found that in the circumstances, he also had a political opinion imputed to him.  That is because, as appears to have been accepted by the Authority, the people extorting the applicant had accused him of being linked to the LTTE in order to enforce their extortion demands.

2. The difficulty with this argument is that the fact that a person extorting another person uses an accusation of a particular characteristic of that other person does not necessarily mean either that the accusation was true or that the accusation reflected a genuinely held belief.  Thus it was open for the Authority, on the one hand, to accept the factual claims that the applicant had been extorted and that the people extorting him had accused the applicant of being linked to the LTTE, but on the other, for the reasons given by the Authority at [19], for it to find that the applicant was not in fact imputed with an LTTE profile by the authorities.  For those reasons, the first ground is rejected.

Ground 2

1. The second ground is that the Authority accepted as plausible that the applicant had been subject to extortion, but rejected that there would be future extortion on an irrational or illogical basis, and without rational connection to the findings. 

2. The gist of this ground is that, while the applicant claimed that the people who had engaged in the extortion of him included people from both the CID and from paramilitary groups, the Authority conflated the identity of those two distinct groups of people and made its finding, in [22], simply on the basis of the disbanding of the paramilitary groups. 

3. The ground, however, is based upon an incorrect understanding of [22] of the Authority’s reasons.  I set out the relevant portion of [22] below:

   … Nevertheless, I am not satisfied that this indicates a well-founded fear of persecution in the future from either paramilitary groups, the CID, or a combination of the two, on the basis that the paramilitary groups have largely disbanded and the changes brought about by the improvements in the security situation and the reforms of the Sirisena government which have restrained the excesses of CID abuse of the civilian population that was prevalent during the civil war and the immediate period after the war. Following its election in 2015 the Sirisena government has adopted a more proactive approach to human rights and reconciliation and has been engaging constructively with the Tamil political parties. DFAT reports that under the Sirisena government DFAT the security situation in the north and east has greatly improved and assess that the monitoring and harassment of Tamils, such as that claimed by the applicant, has decreased.

   (Citations omitted)

4. The reasons in that portion of the Authority’s reasons for decision disclosed that the Authority was well aware that different people engaged in the extortion, and it assessed the possibility of future extortion by reference to those differences.  On the one hand, it found that the paramilitary groups had been largely disbanded and, secondly, it found that the improvements and reforms of the Sirisena government had restrained the excesses of CID abuse of the civilian population that was prevalent during the civil war, and the period immediately following that war.  It is clear on any reading of those reasons that the Authority did not conflate those two groups, and that it had separate reasons for rejecting the applicant’s claims in respect of each.  The ground is rejected.

Ground 3

1. The third ground concerns the letter from the member of the Sri Lankan Parliament and in effect, relies on two arguments.  The first is that the Authority did not give realistic consideration to the letter, and the second is that it erred by failing to make further relevant inquiries. 

2. The first of these arguments is based on an assertion that the Authority misunderstood what was said in the letter.  It was argued that the letter said that the applicant was an ardent supporter of the political party, the Tamil National Alliance (TNA), not that he was a member, and that the Authority misunderstood that.  I reject that proposition in light of the clear words at [23] of the Authority’s reasons, where it  refers to the letter and notes that it says “the applicant is an ardent supporter of the TNA.”

1. The point made in [23] of the Authority’s reasons is that there was some level of inconsistency between the letter from the member of the Sri Lankan Parliament and the applicant’s claim to be owed protection by Australia.  Amongst other things, the Authority noted that the applicant had never sought protection on the basis of being a TNA member and, indeed, when he was asked questions about his political involvement, he had replied that he was not a member of, or associated with any political party.  While I accept that that reply did not specifically state that he was not a supporter of any party, it was open to infer that that is what he meant.

2. The Authority did not make any express finding about what the applicant meant but it did not need to.  At this point in its reasons, all it was doing was assessing the weight to be given to the letter relied upon by the applicant. 

3. The second argument relies upon authority such as Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 (SZIAI).  At [25] of that judgment, the Court said:

   Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. …

   (Citations omitted)

4. There may be a real question as to the applicability of the principle explained in obiter in that passage to the conduct of a review under pt.7AA of the Act. For instance, there exists in pt.7AA, s.473DC which limits (unlike was the case in respect of what the decision-maker considered in SZIAI) the circumstances in which new information may be given or may be obtained and expressly states that the Authority “does not have a duty to get, request or accept, any new information” in any circumstances: see s.473DC(2). There remains a power in s.473DC(3) in spite of all that to obtain further information and it may be that the Authority in certain circumstances is required at least to consider whether to exercise that power.

5. The proper construction of pt.7AA and, in particular s.473DC is yet to be fully exposed before the Courts, although there are some early decisions such as DZU16 v Minister for Immigration & Border Protection (2017) 321 FLR 306; [2017] FCCA 851, which have examined those provisions in some detail. I note that that decision is on appeal and has been heard but has not yet been handed down. However, in my view it is not necessary, for the purpose of these proceedings, to delve into the intricacies of pt.7AA and I will proceed on the basis asserted by the applicant that the principle expressed in [25] of SZIAI applies without further complication.

6. The difficulty, however, is that I cannot see any obvious inquiry that could have been made about a critical fact, the existence of which was easily ascertained in the circumstances.  What the applicant said in oral submissions is that the Parliament member’s letter gave an opinion that if the applicant were to return to Sri Lanka, his life would be at grave risk and that this ought to have been examined by further inquiry by the Authority.  That submission was based on the fact that the member of Parliament was aware of the current circumstances in Sri Lanka and was aware of the circumstances as they related to the applicant.

7. That may well be the case.  However, it does not answer the question about what fact might readily have been obtained, as the member of Parliament had already stated the opinion relied upon by the applicant and the Authority had had regard to that opinion but ultimately given it little weight for the reasons expressed in [23] through to [26] of its reasons.  Whatever may be the extent of the power of the duty of the Authority to review the delegate’s decision, in my view it was not impacted by its failure to call the member of Parliament to seek an explanation of, or further details of the opinions expressed in the letter of 10 October 2016.

8. To find otherwise would be to extend the notion of the duty and powers of the Authority well beyond any current understanding of those duties and powers even excluding the limitations in pt.7AA of the Act. It was neither unreasonable for the Authority not to make those inquiries, given its reasons for the weight given to the letter, nor was it a necessary part of the review, given the lack of clarity and the information which the applicant says it ought to have sought. For those reasons, ground 3 is rejected.

Ground 4

1. Ground 4 was set out by the applicant as follows:

   The Authority committed jurisdictional error when it failed to assess whether the Applicant would be able to return to country of habitual residence and re-commence his business depriving him of livelihood amounting to significant harm / or serious harm and / or failed to address the claim or integer of the claim.

   …

2. In oral submissions this ground was clarified to mean the Authority did not properly assess the risk to the applicant by reference to his personal circumstances and, in particular, by references to the type of business that he proposed to undertake upon return to Sri Lanka.  One might readily infer that that business might include one of the businesses that he had previously undertaken, namely running a textile shop and/or wholesaling coconuts for the purposes of a local market.  The Authority dealt with the issue of future possibilities of extortion at [27] of its reasons and I set that out below:

   27.In assessing the likelihood of harm for the applicant I take into account the fact that the paramilitary groups, who are reported as having been the most significant perpetrators of extortion and kidnappings, have disbanded. Further, I note the improvements in the security situation which have curbed the abuse of the civilian population by the CID. I note the article from the Ceylon News dated 21 June 2016 reporting the kidnap of a Tamil businessman and I accept that this could raise a subjective fear of similar harm in the applicant. I note his representative’s assertion that the applicant is a member of a group “Tamil businessman” and that Tamil businessmen with perceived LTTE links are targeted for harm. I cannot discount kidnap or extortion entirely; as evidenced by the Ceylon News report these incidents still occur. However, giving weight to country information regarding the disbanding of paramilitary groups, I consider the likelihood of the applicant being harassed, extorted, harmed or kidnapped by the CID or paramilitary groups to be remote. I am not satisfied that there is a real chance of serious harm arising for the applicant on the basis of past extortion or for being a Tamil businessman.

3. The findings made in that paragraph were made in the context of an understanding and acceptance by the Authority that the applicant had, in the past, operated a textile shop and had been involved in the coconut trade and that it was in that context that he had encountered difficulties in running his business.  It was the possibility of such difficulties that might affect his ability to earn a proper livelihood.  However, there was no country information before the Authority or other submission before the Authority that suggested that engagement in either of those types of business might give rise to a greater risk of harm to the applicant by means of extortion or other unlawful means than engagement in any other type of business. 

4. In those circumstances, namely the acceptance by the Authority of the type of business undertaken and the lack of any information suggesting that that type of business was more likely to be affected by extortion, there was no error by the Authority in making its findings based upon general country information concerning kidnapping and extortion of Tamil businessmen as it did in [27] of its reasons.  For those reasons, ground 4 is rejected. 

Ground 5 and 6

1. Grounds 5 and 6 of the amended application are not pressed. 

Conclusion

1. For reasons I have given, I can see no jurisdictional error in the Authority’s reasons and the application is dismissed. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       15 January 2018