DOD16 v Minister for Immigration

[2018] FCCA 1108

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOD16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1108

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority’s decision was irrational, illogical and unreasonable – whether the Authority did not consider the applicant’s claims cumulatively – no jurisdictional error – application dismissed.

Cases cited:

Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478

Minister for Immigration & Border Protection v DDK16 [2017] FCAFC 188

Applicant: DOD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3273 of 2016

Judgment of: Judge Smith

Hearing date: 4 April 2018

Date of Last Submission: 4 April 2018

Delivered at: Sydney

Delivered on: 4 April 2018

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Ms R Graycar

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3273 of 2016

DOD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 31 October 2016.  The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa, a form of protection visa. 

2. The applicant is a citizen of Sri Lanka who arrived by boat in Australia, without a visa, at an excised offshored area on 10 October 2012.  The circumstances of his arrival meant that he was ineligible to make a valid application for a protection visa.  However, the Minister exercised his power to lift that bar and the applicant lodged an application for a protection visa on 19 February 2016.

3. The claims made by the applicant in support of that application were summarised by the Authority at [4] of its reasons, which I set out below:

   …

   •The applicant is a Tamil from the Batticaloa District, Eastern Province, Sri Lanka.

   •The family had not experienced any problems with the authorities until 2004 when the applicant’s cousin was abducted. This cousin was linked to the LTTE[1] and the applicant believes he was abducted by the paramilitary Karuna group. This cousin is still missing.

   •The applicant's father was involved in trying to locate the cousin as his own father (the applicant’s uncle) was overseas at the time. The disappearance was reported to the International Committee of the Red Cross (ICRC) and the applicant’s father lodged a complaint with the police.

   •The applicant’s father was then targeted by unknown persons. These people said they were CID[2]. The applicant believes they may have been from the paramilitary Karuna group as they spoke in Tamil.

   •The family decided to move to the Badulla area in 2004 to avoid further harassment. The family remained there until moving back to Mandoor, Batticaloa district, in 2008. As they had recently returned to the area the Karuna group were interested in the family and the applicant’s father was questioned about their activities and any links to the LTTE.  The applicant believes his father was suspected of being linked to the LTTE because of his close relationship to his abducted nephew.

   •The applicant’s father was arrested by the police in 2009 on suspicion of being involved with the LTTE. He was questioned and detained for two days. The CID came regularly to the family home in search of the applicant’s cousin. In a separate incident in 2009 the applicant’s father was taken by men claiming to be CID, held for the day and physically abused.

   •From 2009, the CID began to ask about the applicant and he was afraid the CID or Karuna group may harm him. He left the family home and stayed with friends and relatives in the Batticaloa and Ampara districts while studying and working. The CID continued to go to his parent's house in Mandoor looking for him.

   •The applicant’s parents were concerned for his safety and made arrangements for him to leave Sri Lanka. The CID continued to visit his parents until 2013 and they relocated to Kallady to avoid further harassment.

   •The applicant fears that because of the link to his abducted cousin he has been imputed with an LTTE profile and will be harmed by the authorities or paramilitary groups on return to Sri Lanka. His representative contends that the applicant meets a risk profile as a family member of an LTTE combatant.

   •He fears that as he has departed Sri Lanka illegally he could be imprisoned on return and face harm whilst imprisoned.

   [1] Liberation Tigers Tamil Eelam.

   [2] Criminal Investigation Department.

4. On 13 September 2016, a delegate of the Minister made a decision not to grant the applicant a protection visa for reasons which meant that the applicant became a fast-track review applicant and for that reason the matter was referred to the Authority for review of the delegate’s decision.  The Authority made its decision on 31 October 2016.  The Authority’s reasons have been summarised in the written submissions of the first respondent at [5] to [8], which I adopt for the purposes of this judgment and set out below (without alteration):

   5.The IAA[3] generally accepted the applicant’s account of the events that had occurred. However, the IAA did not accept that the circumstances outlined in the applicant’s claims gave rise to a real chance of serious harm or a real risk of significant harm. Thus the application was rejected. In the reasons for decision, the IAA accepted the following:

   [3] Immigration Assessment Authority.

   5.1.The applicant’s cousin was abducted in 2004 and remains missing (at [8]);

   5.2.upon return to Mandoor in 2008, his family “came to attention” and his father was “questioned and detained” in 2009 (at [9]); and

   5.3.inquiries continued to be made from 2009–2013 (at [10]).

   6.Critically, however, the IAA noted that the applicant was able to study, work and visit his family without facing harm and the last inquiry about him was made in 2013 (at [10]). Further, the IAA considered (and accepted) the applicant's close familial links but noted that his parents and his other cousins (the brothers of the missing cousin) were able to live, work and travel without facing harm (at [12]–[15]). Accordingly, the IAA found that neither the applicant nor his family were of any interest to the authorities on account of any imputed support of the LTTE (at [16]).

   7.In light of country information and the applicant's profile, the IAA also did not accept that the applicant would face harm on account of his Tamil ethnicity (at [17]–[20]) or as a failed returning asylum seeker (at [30]). In relation to his illegal departure, the IAA found that any experiences or penalties on return would not amount to serious harm (at [24], [26]–[28]). Further, the IAA found that to the extent that he would experience any consequences for breach of the Sri Lankan Immigrants and Emigrants Act, that would be as a consequence of breach of a “law of general application” (at [29]).

   8.For those reasons, the IAA found that the applicant did not meet the requirements of the definition of “refugee” in subsection 5H(1) of the Act (at [31]–[32]). For the same reasons, the IAA found that the applicant did not satisfy the complementary protection criterion (at [35]). In relation to the latter, the IAA also made findings specifically addressing his illegal departure to the effect that his experiences on return would not amount to significant harm (at [36]–[37]).

   (Emphasis in original)

5. In his application for review, the applicant raises, at least at one level, three grounds.  Each of the grounds has a number of particulars which do not sit comfortably under the ground which they relate to and do not necessarily relate one to the other. 

6. The first ground is that the Authority’s finding was inconsistent, illogical and unreasonable and a decision that could not be made by a reasonable decision-maker.  There are seven particulars under that ground.  Those particulars appear to raise a number of separate complaints.

7. The first arises from [12] of the Authority’s reasons where the Authority said that it considered “it highly likely that, if the authorities had an interest in the family of the missing cousin, this interest would extend to the cousin’s brothers, as well as the applicant”.  It is to be borne in mind that that statement was made in light of the acceptance by the Authority of country information concerning certain groups which were at risk of persecution in Sri Lanka from the authorities.  One of the groups referred to in that information were, or included, people with family links or who were dependent upon or otherwise closely related to persons who were former LTTE combatants.

8. The applicant’s claim included a claim concerning his cousin who had disappeared and who had been involved in the LTTE, claims which were accepted by the Authority.  Thus, at [12], the Authority was assessing the possible risk of the applicant to future persecution by having regard to circumstances of other close family members of his cousin.  That approach, stated at that level, clearly has a logical basis.  However, the applicant’s claim in ground 1 is not that there was no logical basis for the approach, rather, as explained in the first five particulars of ground 1, that the Authority failed to consider the differences between the applicant and the brothers of the applicant’s cousin.

9. For instance, the applicant asserts at [1.d] of his amended application that his cousin’s brothers did not depart Sri Lanka illegally and had not returned on a travel document after an unsuccessful protection claim.  The applicant is clearly correct that his cousin’s brothers are not in an identical position to himself.  But the Authority’s reasoning did not proceed on the basis that there was a precise identity between the situations of the applicant and his cousin’s brothers.  The critical connection between each of these people, including the applicant, was their relationship to the cousin who, it was accepted, had been involved in the LTTE.

10. Beyond that, the Authority noted, for instance, at [13], that the brothers are living and working in Sri Lanka without any indication of any interest in them by the authorities.  It also noted, as picked up by the applicant in the particulars to ground 1, that one of the brothers had left Sri Lanka for Qatar in 2007 and had since returned without facing any problems on either leg of the journey.  The fact that the Authority referred to that fact does not indicate any logical error in the Authority’s reasons.

11. The reasoning process, apparent in [13], is clear enough, namely, that given the connection with the cousin who had been involved in the LTTE, if a brother of the cousin had been of any adverse interest to the authorities then he may have come to the attention of the authorities either arriving in or departing from Sri Lanka.  The fact that he had not supported the inference that he was not of any adverse interest to the authorities.  Further, the situation of the applicant’s cousin’s brothers was not alone decisive of the Authority’s reasoning in this respect, rather, it was only one aspect of the Authority’s reasoning as to why the applicant, in its view, did not have an LTTE profile because of his connection to his cousin.

12. Other matters considered by the Authority at [15] and [16] of its reasons concern the applicant’s immediate family, as well as his own ability to study and work without apparent harm until his departure in 2012.  For those reasons, I am not satisfied that the Authority’s reasoning, insofar as it concerned the applicant’s cousin’s brothers, was unreasonable in the sense that is required in order for it to give rise to a jurisdictional error.

13. The second aspect of the first ground appears from the sixth and seventh particulars.  In those particulars, as far as I understand them, the applicant appears to submit that once the Authority accepted the country information about the risk profile of people with a close family connection to a member or former member of the LTTE, then the Authority was not legally able to come to a finding that the applicant was not at risk of relevant harm.  The difficulty with that argument is that the country information was more nuanced than is suggested by the argument.

14. At [11] of its reasons, the Authority refers to the relevant information and notes that the need for refugee protection depends upon the specifics of the individual case. It is not true to say that once the information was accepted, the only outcome on the review could have been that the Authority was to accept that there was a well-founded fear of persecution arising from the applicant’s family connection to his cousin.  The information, rather, invited close attention to the individual circumstances of each putative refugee and that is what the Authority did.

15. The third aspect of the first ground arises perhaps obliquely from the particulars but more clearly from the submissions made in support of ground 1.  In his written submissions, the applicant says at [2] that the finding of the Authority at [16] that the applicant had not been imputed with an LTTE profile was inconsistent with its finding at [12] that it was highly likely that the authorities had an interest in the applicant.  The difficulty with that argument, however, is that it proceeds on a misunderstanding of [12] of the Authority’s reasons.

16. I have already observed the reasoning process involved in that paragraph of the Authority’s reasons.  But what is important for present purposes is that in the last sentence of [12] the Authority was posing a hypothesis, namely, that if the authorities had an interest in the family of the missing cousin, this interest would extend to the cousin’s brothers as well as the applicant.  The Authority then tested that hypothesis by reference to the other information and material it had before it and ultimately concluded that it was not satisfied of the major premise, namely, that the authorities had an interest in the family of the missing cousin and, as a corollary, that they did not have an interest in the applicant.  For those reasons, the first ground is rejected.

17. The second ground is that the Authority failed to consider all of the applicant’s claims and integers.  This ground essentially has a large crossover with parts of the first ground.  In essence, it is, as I understand it, that once the Authority accepted the connection of his cousin to the LTTE and the risk profile information referred to in [11] of its reasons, then it was not open to the Authority to determine otherwise than that the applicant had a well-founded fear of persecution.

18. Understood in that way, it does not fit well with the ground as formulated.  The argument is not that the Authority failed to consider a claim, but rather that the Authority did not, but should have, accepted it.  However, for the reasons that I gave in connection with ground 1, it was legally open to the Authority to conclude that the applicant was not imputed with an LTTE profile in spite of its earlier findings about his cousin and, for that reason, the second ground is rejected.

19. The third ground is that the Authority did not consider the applicant’s claims cumulatively.  The particulars, however, do not specifically go to that argument but, rather, suggest that the argument is that the Authority did not consider several integers of the applicant’s claims.  Particularly, the argument is that the Authority failed to consider the circumstances that the applicant’s parents moved after a visit by the authorities in 2013.  The Authority, however, did consider that claim, first, in the third last dot point in [4] it specifically refers to it and, secondly, at [10] and [15] it specifically referred to the relocation of the applicant’s parents, noting the proximity of their new location to where they had previously been.

20. In light of the Authority’s findings at [10] and [15], and its earlier reference to the claim itself, I am satisfied that the Authority not only had regard to it and considered it but, indeed, accepted it as a factual claim.  What it did not do was to find that this established that the applicant satisfied the criteria for the grant of a protection visa.  As for the way in which ground 3 itself is framed, the Full Court of the Federal Court in Minister for Immigration & Border Protection v DDK16 [2017] FCAFC 188 considered what it meant to deal with a claim cumulatively.

21. The Court appeared to accept submissions made on behalf of the Minister which it set out at [33] of its reasons.  There it referred to authorities such as Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478, a decision of Katz J. The reference to the requirement to consider claims cumulatively is no more than an acknowledgment of an obligation of the Authority or Tribunal or other decision-maker to consider the whole of an applicant’s claims. There may be claims that while dealt with on an individual basis would not satisfy the definition of a refugee for the purposes of a protection visa but taken together may do so. A failure in those circumstances to consider the accumulation of all of the claims might lead to error. That, however, is not what occurred here.

22. The applicant’s claims arose from a number of circumstances, including his family connection to a person with a connection to the LTTE, his Tamil ethnicity and the circumstance that he left Sri Lanka illegally and would return there as a failed asylum seeker.  Each of these matters could be taken together, if accepted, to alter the applicant’s risk of harm upon return to Sri Lanka.  However, the Authority’s reasons dealt with all of those claims and possibilities.  Although the Authority’s reasons were set out sequentially, those reasons and findings were interconnected with one another.

23. While its finding at first was that the applicant was not specifically imputed with an LTTE profile, its consideration of the applicant’s claims as a Tamil were necessarily affected by that finding because its conclusion about the LTTE profile meant that it did not have to consider the applicant as a Tamil with an LTTE profile.  It also meant that it did not have to deal with the applicant as a potential returnee from having claimed asylum in Australia with an LTTE profile.

24. Understood in that way, the Authority’s reasons, when it said at [31] that it had considered the applicant’s circumstances, must be understood to mean that it had considered the totality of the applicant’s circumstances.  That is another way of saying that it had considered the applicant’s claims as a whole and, to the extent that those claims were accepted, that they were considered cumulatively.  For those reasons, I reject ground 3. 

25. I am not satisfied there is any jurisdictional error in the Authority’s reasons for decision and so the application will be dismissed.

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

Associate: 

Date:       8 May 2018