DMO17 v Minister for Immigration

[2018] FCCA 2216

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2216

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.473DD

Applicant: DMO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2454 of 2017

Judgment of: Judge Driver

Hearing date: 13 August 2018

Delivered at: Sydney

Delivered on: 13 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Markus of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2454 of 2017

DMO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

(As Corrected)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 14 July 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 3 August 2018. 

Chronology

1. The applicant is a 25 year old (redacted) national of Sri Lanka of Tamil ethnicity.  He arrived at Christmas Island on 23 October 2012 as an unauthorised maritime arrival.  On 1 June 2016 he applied for the safe haven enterprise visa (SHEV) and attended an interview with the delegate on 7 November 2016.  On 30 November 2016, the delegate refused to grant the applicant’s application for a SHEV.  The matter was then referred to the Authority.

2. On 14 December 2016 the applicant sent an email to the Authority containing three letters in support his claims:[1] a letter signed by Rev. Fr V dated 13 December 2016 (first letter); an undated letter signed by the applicant (second letter) and a letter signed by VKJ, dated 10 December 2016 (third letter).[2]

   [1] Court Book (CB) 175 to 179

   [2] The authors’ names have been anonymised

Protection claims

1. The applicant’s claims can be summarised as follows.

2. Applicant’s family members: during the civil war the applicant’s grandfather and one uncle went missing, one uncle was shot and killed and his family was displaced for a time.

3. Work as a fisherman: the applicant worked a fisherman between 2008 and 2012.  He was required to have a licence and a pass issued by the Sri Lankan Navy (SLN), without which he was not allowed to fish.  On one occasion the applicant forgot to report to the SLN on return from a fishing trip.  The next day the SLN would not allow him to go out and fish, he was detained by the SLN for a few hours before being released.

4. Activities and profile as a member of a group protecting his village from “grease men”: the applicant joined a group of young men in his village to stand guard against “grease men”.  In 2011, one night when the applicant was on guard with other young men in the group, a “grease man” came into the village. The group chased the “grease man” into the local Sri Lankan Army (SLA) camp and tried to enter the SLA camp but were forced away.  The next day members of the SLA came and rounded up the group, including the applicant.  The group was verbally and physically assaulted for approximately one hour before being released.

5. Tamil failed asylum seeker who departed Sri Lanka illegally: the applicant is at risk of harm because he departed Sri Lanka illegally and would be returning as a Tamil failed asylum seeker.  In 2006-2009, Tamils were subjected to identity checks in his area to determine if anyone was connected to the Liberation Tigers of Tamil Eelam (LTTE).  After the end of the war in 2009, curfews were imposed on Tamils.  In 2012, he was working as a fisherman when the Navy stopped him and his brother in their boat and beat them.  He wrote a letter about the incident and provided it to two newspapers, but withdrew the letters after receiving threats from the SLA/SLN.

Authority decision

1. On 14 July 2017, the Authority affirmed the delegate’s decision.[3]  The Authority made findings and reached conclusions as follows.

   [3] CB 186 to 201

New information

1. In relation to the first and third letters, the Authority found that they post-dated the delegate’s decision and was thus satisfied that they could not have been provided to the delegate.  However, the Authority formed the view that these two letters had been provided at the request of the applicant, and recounted events “which the applicant claimed to have occurred before the delegate’s decision”, yet no explanation had been given by the applicant as to why they could not have been obtained earlier.  Furthermore, the two letters purported to have been written by two different people, yet they “use similar wording and recount the same events”.  The Authority was not satisfied there were exceptional circumstances to justify the consideration of this new information.

2. The second letter, signed by applicant, restating his claims,[4] was undated. The Authority noted that it appeared to use similar wording as the first letter and no explanation was provided as to why it was unable to be obtained/provided earlier.  The Authority was not satisfied that there were exceptional circumstances to justify the consideration of any of the new information.

   [4] CB 176

Findings on claims

1. The Authority accepted the applicant’s identity as claimed.[5]  It also had regard to medical evidence contained in the referred material to the effect that the applicant is receiving counselling, has seen a psychiatrist and has “commenced on medication”. The Authority noted that the counsellor’s report narrates the applicant’s claims for protection.  It found that the applicant had not claimed, nor is there anything in the country information to suggest, that the applicant would not be able to access medical treatment in Sri Lanka.[6]

   [5] CB 189 [10]

   [6] CB 189 [11]

2. The Authority affirmed the decision of the delegate for the following reasons.

3. The Authority accepted the applicant’s claims that his uncle and grandfather had gone missing during the civil war, but the applicant had not claimed that he had experienced any harm as a consequence of these events[7] or as consequence of other incidents of harm that had occurred to persons he knew.[8]

   [7] CB 189 [13]

   [8] CB 189 [14]

4. It accepted that the applicant worked as a fisherman and was required to hold a fishing licence.  It accepted the applicant’s claim to have been detained briefly by the SLN on one occasion after he failed to report upon return from a fishing trip.  However, as the applicant had ultimately withdrawn the claim, it did not accept that the applicant had reported the incident.[9]  Other than this incident, the Authority noted that the applicant had not claimed to have experienced restrictions, harm or disadvantage as a Tamil fisherman.[10]  If he continues to work as a fisherman, on the basis of country information, the Authority was not satisfied that the applicant would face any serious harm, significant economic hardship or threat to his ability to subsist.[11]

   [9] CB 190 [16]

   [10] CB 190 [17]

   [11] CB 190 [19]

5. The Authority accepted the claimed incident with the SLA officer while passing through a checkpoint.  It also accepted that the applicant had been part of a group of young men to protect his village from grease men in 2011.[12]  However, it did not accept that as a result of these activities he became a person of interest to the authorities.[13]

   [12] CB 191 [21]

   [13] CB 191 [22]-[24]

6. On the basis of country information, the Authority noted that the situation for Tamils has considerably improved since the end of the civil war and especially since the Sirisena government came into power in 2015.  It was not satisfied that the applicant faces a real chance of harm because he is a young Tamil from the Northern province (an area that was previously under LTTE control) who has previously been stopped, questioned and assaulted by the authorities and who was involved in a group seeking to protect his village from “grease men”.[14]

   [14] CB 192 [28]

7. The Authority accepted that Tamils face some degree of societal discrimination but found that this did not amount to serious harm.[15]

Tamil failed asylum seeker who departed Sri Lanka illegally

[15] CB 192-193 [28]-[31]

1. On the basis of country information, the Authority was satisfied that on his return to Sri Lanka, the applicant would be held on remand while identity, character and security checks are completed; that the procedures under which the applicant as a returnee would be dealt with, and any penalties to which he may be subjected, would be applied in a non-discriminatory basis under a law of general application, and as such do not constitute persecution for the purpose of the Migration Act 1958 (Cth) (Migration Act).[16]

Complementary protection

[16] CB 193-195 [36]-[49]

1. With regard to its earlier findings against the Refugees Convention criteria, the Authority found that the applicant does not have a real risk of significant harm now and in the reasonably foreseeable future in Sri Lanka.[17]

   [17] CB 196-197at [53]-[56]

The present proceedings

1. These proceedings began with a show cause application lodged on 2 August 2017.  The applicant continues to rely upon that application.  There are three grounds in it:

Ground 1

IAA made a jurisdictional error by misapplying the well-founded fear test.

Particulars

IAA did not consider past affiliation of the Applicant of the LTIE and anti­government stand of the applicant.

Ground 2

IAA did not take into account a relevant issue.

Particulars

IAA did not consider that persons with past records will be arrested and harmed in future.

Ground 3

IAA did not take into account a relevant issue.

Particulars

Sri Lankan authorities have recommenced arrests of former LTTE suspects.

1. The application is supported by a short affidavit filed with it, which I received.  I also have before me the book of relevant documents (court book) filed on 3 October 2017.

2. Only the Minister filed written submissions in advance of today’s hearing.  I invited oral submissions from the applicant today.  He referred to legal and societal discrimination faced by Tamils in Sri Lanka.  Those submissions went to the merits of his claims for protection.  He was not able to address any legal arguments bearing upon his grounds of review or otherwise in relation to the Authority decision. 

3. The Minister’s submissions deal adequately with the grounds of review advanced. 

Ground 1

1. The complaint in Ground 1, that the Authority failed to consider the applicant’s past affiliation with the LTTE and his “anti-government stand”, and by so doing erred in its assessment of the current level of risk to the applicant and/or misapplied the “well-founded fear test” is without factual foundation, and is contrary to the express findings of the Authority.

2. The Authority explicitly considered the applicant’s past activities and experiences, and found that he has no profile as an LTTE supporter or activist.[18]  The Authority expressly considered the applicant’s involvement in the “grease man event” and rejected that the claim that this event, combined with the applicant’s previous interactions with the authorities, would cause him to be perceived as a person who was “prepared to stand up and protect Tamils against the abuse of the Sri Lankan authorities”.[19]

   [18] CB 193 [33]

   [19] CB 191 [22]

Ground 2

1. Similarly to Ground 1, the complaint in Ground 2 is contrary to the express findings of the Authority.  The particulars to Ground 2 complain that the Authority failed to take into account that “persons with past records will be arrested and harmed in future”, but the Authority expressly rejected that the applicant had any relevant past record that would make him a person of interest to the authorities upon return.[20]

   [20] CB 192 [28]

Ground 3

1. The particulars provided in support of Ground 3 contend that Sri Lankan authorities have recommenced arrests of former LTTE suspects and their relatives.  This ground does not identify any jurisdictional error in the Authority decision and amounts to no more than a factual assertion.  To the extent that the applicant intends to complain that the Authority failed to consider such claim, similarly to Grounds 1 and 2, the complaint would be contrary to the express finding of the Authority that the applicant is not a former LTTE suspect and has no past history, or family history with the LTTE, that would make him a person of interest to the authorities now.

2. I invited oral submissions from the solicitor for the Minister concerning the Authority’s decision on the non-receipt of new information.  The Authority addressed this issue at [4] of its decision:[21]

   The applicant provided further information to the IAA. The email received from the applicant contained three letters in support his claims: Letter signed by Rev. Fr V, dated 13 December 2016 (first letter); Letter signed by the applicant, no date (second letter); Letter signed by VKJ, dated 10 December 2016 (third letter). The three letters were not provided to the delegate and are new information. The first and third letters post-date the delegate's decision and I am satisfied the letters could not have been provided to the delegate. However it appears these two letters have been provided in support of the application at the applicant's request. The first and third letters purport to have been written by two different people yet these two letters use similar wording and recount the same events, events which the applicant claimed to have occurred before the delegate's decision. The second letter is undated and restates the applicant's claims. The second letter also appears to use similar wording as the first letter. The applicant has provided no explanation regarding why the three letters were unable to be obtained earlier. I am also not satisfied that there are exceptional circumstances to justify the consideration of this new information.

   [21] CB 187

3. The documents in issue appear under cover of an email reproduced at CB 175.  The documents themselves are reproduced at CB 176 to 179.  It is apparent that nothing was advanced by the applicant to address any exceptional circumstances for the receipt of the documents.

4. The Authority found no exceptional circumstances and it is not apparent from the terms of [4] that the Authority confined its consideration for the purposes of s.473DD(a) of the Migration Act. The Authority also directed its attention to both s.473DD(b)(i) and (b)(ii) of the Migration Act. It is tolerably clear that the Authority was not satisfied that the information in the documents was credible personal information which could have affected the consideration of the applicant’s claims.

5. The Authority was satisfied that at least two of the letters could not have been provided to the delegate before his decision.  In the circumstances, I see no particular significance in the Authority’s statement that the applicant had provided no explanation as to why the three letters could not have been obtained earlier. 

6. Further, I am satisfied that while the three letters in question, to some extent, recite claims already made by the applicant, they purported to corroborate those claims.  It was the corroborative content of the letters which constituted new information. 

7. It follows that the Authority was correct to treat the letters as new information, notwithstanding that they did to some extent traverse old ground. I find that there is no argument available to the applicant that the Authority fell into error in relation to its application of s.473DD of the Migration Act in this case.

Conclusion

1. I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Authority. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale as it applied when the application was filed.  The applicant did not wish to be heard on costs. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 6 March 2020

CORRECTION

1. Paragraph 3, line 1 – words between “old” and “national” have been redacted.