DOC16 v Minister for Immigration

[2017] FCCA 1519

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1519

Catchwords:

MIGRATION – Immigration Assessment Authority – Class XE Subclass 790 Safe Haven Enterprise visa – whether the Authority failed to consider the applicant’s particular social group – whether the Authority asked itself the wrong question – whether the Authority misconstrued s.36 of the Act – no jurisdictional error identified – application dismissed.

Legislation:

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

Immigrants and Emigrants Act 1949 (Sri Lanka)

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
SZTAL v Minister for Immigration & Anor 243 FCR 556

Applicant: DOC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3270 of 2016

Judgment of: Judge Street

Hearing date: 3 July 2017

Date of Last Submission: 3 July 2017

Delivered at: Sydney

Delivered on: 3 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr R Chia

On a direct access basis

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3270 of 2016

DOC16

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”) made on 8 November 2016 affirming the decision of a 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 applicant arrived in Australia on 8 November 2012 as an unauthorised maritime arrival. The applicant applied for a Class XE Subclass 790 Safe Haven Enterprise visa on 2 February 2016.

3. The applicant claimed to fear harm by reason of his Tamil race and ethnicity, his profile as a young Tamil from a former LTTE- controlled area, his imputed political opinion as a supporter of the Tamil National Alliance (TNA) and as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), his religious beliefs, and his fears of harm as a member of the particular social group of failed asylum seekers who departed Sri Lanka illegally.

4. On 18 August 2016, the delegate found the applicant failed to meet the criteria for the grant of a visa and refused the application for a visa.

The Authority’s Decision

1. On 19 August 2016, the Authority, under Part 7AA, wrote to the applicant identifying that the matter had been referred to the Authority for a review.

Information before the Authority

1. The letter identified the limited circumstances in which the Authority could receive new information and provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on submissions and new information.

2. Submissions and new information were provided by the applicant to the Authority and the Authority found that there were exceptional circumstances to justify receiving some of the information that was new information. The Authority, in its reasons, identified the visa applicant’s background and the information provided subsequent to the Authority’s letter and that the Authority had regard to the information referred under s.473CB of the Act.

3. The Authority set out the applicant’s claims and evidence and, relevantly, that included a claim that was advanced during his the applicant’s interview with the delegate that the applicant would suffer religion-based persecution for wanting to build a church in Sri Lanka.

4. The Authority also made reference to the post-interview submissions and material provided.

Refugee Assessment

1. The Authority set out the relevant law. The Authority accepted that the applicant is an ethnic Tamil man of Christian faith from the northern provincial region of Sri Lanka and that he had relocated with his mother in the late 1980s to Batticaloa in the Eastern Province.

2. The Authority was satisfied that the authorities had no ongoing interest in the applicant after 1988 having determined the applicant was not of any adverse profile at that time. The Authority found the applicant faced no real chance of serious harm by reference to his historical episode 18 years ago, either now or in the reasonably foreseeable future.

Imputed political opinion as LTTE supporter

1. The Authority, assessing the totality of the evidence as to the applicant’s stepbrother, found that he did not have any kind of relationship that could be described as close or one that would be publically cognisable.

2. The Authority was not satisfied that there were any grounds for the applicant facing a real chance of serious harm on account of a family connection to a person in the LTTE when considered in combination with his own history either now or in the reasonably foreseeable future upon his return to Sri Lanka.

3. The Authority noted the applicant’s own evidence that he had never had any links to the LTTE beyond that of his stepbrother, whose relationship with the applicant was very distant. The Authority did not accept the applicant faced any real chance of serious harm due to any imputation of a pro-LTTE opinion due to his own history or his family connections.

4. The Authority found there was not a real chance the applicant would face harm now or in the reasonably foreseeable future for reasons to do with the applicant being an ethnic Tamil male from the north of Sri Lanka.

Imputed political opinion as a TNA supporter

1. The Authority then turned to the applicant’s imputed political opinion as a TNA supporter and fear of harm. The Authority made reference to the applicant being a Tamil Catholic Christian and that his family has long-standing connections with and support for the TNA and that he has been involved in campaigning for two TNA parliamentarians.

2. It was in this context that the Authority made reference to accepting the applicant provided a level of support to one TNA candidate during the 2012 elections as claimed albeit motivated by a desire to assist the candidate supportive of his desire to build a Church rather than due to any motivations concerning the TNA’s political program. The Authority did not accept that the applicant had any other role in assisting the candidate in any direct manner.

3. The Authority, in relation to the applicant’s very low level involvement in the campaign, which ultimately saw the election of numerous TNA candidates including the one that he had assisted, was not satisfied the applicant faces a real chance of serious harm on that account upon his return to Sri Lanka, now or in the reasonably foreseeable future.

4. The Authority made reference to the country information regarding a particular incident in which windows were broken at the applicant’s house by unidentified persons. The Authority took that into account and found that the events occurred during an election campaign with reports of widespread election-related violence and found that the prospects of any harm to the applicant, either now or in the reasonably foreseeable future, would be very remote.

5. The Authority made reference to the material before the Authority and did not accept the applicant faced any real chance now or in the reasonably foreseeable future of significant harm from the Karuna group or any of its affiliates including harm on account of the applicant having provided the claimed low-level assistance to a TNA candidate in September 2012, or having been found reading anti-Pillyan Group leaflets on the road.

6. The Authority made reference to having considered the claims made at the interview and developed in subsequent submissions concerning the applicant facing harm on account of his religion, together with country information provided in support of his claim.

7. It is in that context that the Authority said that it was prepared to accept that the applicant’s motivations in relation to the low-level assistance to the TNA that he provided were driven by the parties’ policies concerning building Christian churches rather than the applicant having any actual political motivation to do so.

8. The Authority found that the applicant had advanced no other claims or evidence in relation to any activism as a Christian Catholic in his home area and the Authority found, to the extent of his claim, in relation to religion that he is a supporter of a TNA candidate who was sympathetic to the aspirations of Christian to build churches in the local areas.

9. The Authority, having found that the applicant faces no real risk of serious harm on account of his low-level assistance to the TNA during the September 2012 elections, found that the applicant’s motivations for doing so did not affect the Authority’s assessment. Having regard to the country information provided in the submissions concerning religious-based persecution, the Authority there was nothing in the applicant’s profile that would result in adverse attention being directed towards the applicant for reasons of his Catholic Christian religious faith.

10. It was in those circumstances the Authority found that by reference to the applicant’s claims and profile, there was no real chance that the applicant faced persecution for religious reasons were he to return to his home area in Sri Lanka.

As a failed asylum seeker

1. The Authority accepted that the applicant was a person who departed Sri Lanka illegally. The Authority was not satisfied the applicant faces any real chance of serious harm due to being a failed asylum seeker, now or in the reasonably foreseeable future, if he returns to Sri Lanka.

2. The Authority found the applicant would be likely to be charged and fined under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the IAEA”) and then released. The Authority found even in the event the applicant elected to plead guilty to the offence under the IAEA, he would either be granted bail on personal surety or of a family member. The Authority found that there was no suggestion the applicant was anything other than an ordinary illegal departee from Sri Lanka and that he would not face any chance of imprisonment but it is likely that he will be fined.

3. The Authority found that the questioning and detention the applicant may experience would be brief and would not constitute serious harm as defined in the Act. The Authority found the provisions of the IAEA are laws of general application that apply to all Sri Lankans equally and are not discriminatory on its terms and are not selectively enforced.

4. The Authority, having considered the applicant’s claims individually and cumulatively, as well as considering the personal circumstances of the applicant, was not satisfied the applicant has a well-founded fear of persecution for reasons or combination of reasons of his race, religion, nationality, membership of a particular social group and/or political group now or in the reasonably foreseeable future if he returns to Sri Lanka.

5. The Authority found the applicant did not meet the definition of refugee under s.5H(1) and does not meet the criterion under s.36(2)(a) of the Act.

Complementary protection assessment

1. In relation to complementary protection, the Authority was not satisfied on the evidence regarding the applicant returning as an illegal departee that there is an intention to inflict pain or suffering or extreme humiliation in any questioning, arrest, fingerprinting, photographing, brief detention, bail surety or fine imposed under the IAEA. The Authority found the circumstances do not amount to the death penalty, arbitrary deprivation of life or torture. The Authority was satisfied that when questioned or arrested, fingerprinted or photographed, any bail surety imposed, any fine imposed or the poor prison conditions to which the applicant may be briefly subjected, of themselves or in combination do not constitute significant harm as defined in s.36(2A) of the Act.

2. The Authority found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk the applicant will face significant harm.

3. The Authority found the applicant did not meet the criterion under s.36(2)(aa) of the Act.

Proceedings before this Court

Grounds in the application

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

   1. The IAA failed to consider the applicant’s claim to fear harm based upon membership of a particular social group, namely Christians who would seek assistance and are driven to establish a church in a majority non-Christian area of Sri Lanka.

   2. Further, or in the alternative, the IAA asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.

   4. Further, or in the alternative to 1, 2 and 3, in finding that it was not satisfied the applicant would suffer “significant harm “under subsection 36(2A) of the Act, the IAA misconstrued that provision as requiring that there be an actual, subjective intention to inflict pain or suffering or extreme humiliation.

2. Mr Chia, of counsel, confirmed that Ground 3 was not pressed and was abandoned. In relation to Ground 4, Mr Chia of counsel, sought an adjournment on behalf of the applicant given the pending decision of the High Court in SZTAL v Minister for Immigration & Anor.

Consideration of the grounds

Ground 4

1. This Court is bound by the decision of the Full Court in SZTAL v Minister for Immigration & Anor 243 FCR 556. I am not satisfied that the existence of other proceedings, albeit in the High Court of Australia warrants an adjournment of the present case in the interests of the administration of justice. It is for these reasons that an adjournment was refused.

2. Mr Chia, of counsel, accepted that this Court was bound by the Full Court’s decision in SZTAL and formally sought to challenge the same. That was a proper course for Mr Chia to take, and properly preserves his client’s interests in that regard. No jurisdictional error is made out by Ground 4

Grounds 1 and 2

1. In relation to Grounds 1 and 2, Mr Chia took the Court to the transcript at the time of interview on 23 May 2016 and in particular, on page 24, an exchange between the delegate and the agent relevantly as follows:

   Agent: I think just to follow from what he said about the church. The main rule or the main reason for supporting the TNA I think is important because it might seem like we are raising new claims but that's not what I am trying to get at; based on what he had said today his whole testimony is that his goal in helping the election campaign was to establish a church. When I asked him more during the natural justice break whether family is still focused in getting the church up and running he said yes he had been talking with the priest etc.

   A person with such a motivation in a majority area where there are non Christians faces the chance of harmful probably for reasons as well. If you are driven to establish a church in a majority Hindu or a Buddhist area - we are talking of Batticaloa where he comes from the majority are Hindus – then there are possibilities he will be harmed for those reasons, for religious reasons or being driven to build a church. I also know that the two TNA members when they are in power they may not be as efficient as they were but in all likelihood they are not Christians, he confirmed that they are Hindus. There is Christian persecution happening in Sri Lanka and the National Evangelical Council has published reports. I have information on that which I will forward to the Department shortly.

   Delegate: Is that a new claim you are putting up now?

   Agent: It is based on what he has raised today. I was not intending to make such claims but based on what he had made today.

   Delegate: Just to clarify he is not raised that he has been persecuted because of his religion, that's what I wanted to clarify.

   Agent: He was not persecuted but if he is driven to build a church and if that is what his motivation is. His knowledge in TNA ... he's clearly said I don't have any interest in politics. Clearly he didn't know the names of the Ariyenthiran - that's going to be a concern definitely - he is not driven to engage in politics in that sense but he went and supported the TNA party and they're arguably in a position probably much more influential to get certain things done but they are Hindu MPs, so his motivation to support the political Tamil party was to get some benefit the Christians in his area where he is living. So I think that's a very strong motivation which could attract adverse attention and that's living in this area by the Hindus, majority Hindus. If he was to move to another area it would be the majority Christians with such a motivation to establish a church.

   Delegate: Ok so I just want to clarify so what is the point you are trying to raise?

   Agent: It is that his motivation to support the political party the motivation is what is really important. What is his motivated if he goes back. He would be motivated to establish a Christian church. Whether he supports a political party or not is a different question. He may seek assistance, he may seek the priest assistance to establish a church. He said his wife is still talking to the priest. If someone is driven to establish a church in majority area where the majority is not Christian then that person could face harm. And for religious reasons that's a claim which is clear on the facts. It's a religious based claim really.

   Delegate: So what he says if he goes back he will be facing religious based persecution is that right?

   Agent: He could face if he has such a desire to establish a church. If my client is driven to establish or build a church in an area where the majority is not Christian then country information states that if there is a minority group and they could face harm in certain parts. That the claim I am putting forward based on country information as well, so the fear is well-founded in that sense.

2. Mr Chia, of counsel, submitted that there was an express claim advanced that the applicant was a person that would be motivated to establish a Christian church in Sri Lanka. Mr Chia took the Court to the submissions made on 23 May 2016 to the delegate, which relevantly included the following:

   3. The representative pointed out that on the basis of the applicant’s oral testimony it appeared that his motivation to get involved in politics was primarily to establish a church in the area he resided.

   4. It was submitted that the applicant’s motivation to establish a church if accepted, would expose him to Convention related persecutory treatment if he is returned to Sri Lanka for the following reasons:

   a. Christians in Sri Lanka are a small minority.

   b. Minority religious groups have and continue to be targeted by the Buddhists and other radicals from time to time.

   c. Though the applicant originates from a majority Tamil area, the majority are Hindus and if the applicant was to relocate elsewhere he would need to live amongst majority Sinhalese most of whom are Buddhists.

   d. Whilst religious persecution in Sri Lanka is perceived less severe than other forms of persecutory treatment, it was submitted that the applicant’s “motivation” to establish a church was one of several reasons as to why the applicant faces a real chance of Convention related harm.

   …

   6. Persecution.Org which reports on incidents of persecution Christians face globally have listed several instances of harm in the recent past that Christians, particularly Christians who attend church in Sri Lanka face at the present time.

1. Following the above paragraphs were articles set out in relation to Christian activity. Mr Chia also took the Court to the decision in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, and specifically at paragraphs 23 to 27. On a fair reading of the Authority’s decision, the Authority recognised a claim that the applicant would suffer religion-based persecution for supporting a candidate who was wanting to build a church in Sri Lanka, and made adverse findings dispositive of that claim. Those adverse findings were open on the material and were logical and reasonable.

2. Those findings were made in the context of the applicant’s claim in relation to involvement with the TNA. Mr Chia of counsel submitted that the Authority had misunderstood the applicant’s claim as summarised in the dot point found in paragraph 9 as follows:

   
   
   

   During his interview with the delegate, the applicant advanced a new claim that he would suffer religion-based persecution for wanting to build a church in Sri Lanka.

3. The Authority’s reasons are not to be read with a keen eye for error. The Authority made express reference to taking into account the submissions made on behalf of the applicant and clearly took into account the applicant’s motivation and desire to assist a TNA candidate in the adverse findings made by the Authority.

4. The Authority has clearly taken into account that claim in the reference to there being no activism as a Christian Catholic in his home area beyond his support of a TNA candidate whom the applicant was sympathetic because of the aspirations to build a church. I do not accept that the Authority misunderstood the applicant’s claim in the summary referred to above. The Authority made adverse findings, which subsumed that integer of the applicant’s claim in relation to his religious fears. There was no separate social group of Christians who would seek to establish a church that the applicant advanced as a claimed fear, and the Court finds no such claim arose on the material before the Authority.

5. In relation to Ground 1, as there was no social group claim that arose on the material before the Authority, no jurisdictional error is made out.

6. There was no wrong question asked by the Authority and there was no failure by the Authority to constructively exercise its jurisdiction. No jurisdictional error as alleged in Grounds 1 and 2 is made out. For these reasons the amended application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  26 July 2017