DPE16 v Minister for Immigration

[2017] FCCA 1824

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPE16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1824

Catchwords:
MIGRATION – Immigration Assessment Authority – The Authority’s reasons were open on the material and cannot be said to lack an evident and intelligible justification – prevalence of document fraud and rejection of applicant’s credit was the reason for rejecting corroborative material – no jurisdictional error identified – second amended application dismissed.

Legislation:

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

Applicant: DPE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3300 of 2016

Judgment of: Judge Street

Hearing date: 3 August 2017

Date of Last Submission: 3 August 2017

Delivered at: Sydney

Delivered on: 3 August 2017

REPRESENTATION

Solicitors for the Applicant:

Mr S Hodges

Hodges Legal

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The second amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3300 of 2016

DPE16

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 Act1958 (Cth) (“the Migration Act”), in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA, made on 20 October 2016, 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 are assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 21 September 2012. On 19 February 2016, the applicant applied for a Safe Haven Enterprise visa.

3. On 12 August 2016, the delegate refused to grant the applicant a protection visa, and found the applicant failed to meet the criteria under the Migration Act. The delegate made adverse credibility findings and found that the applicant had fabricated a story about assisting the Tamil National Alliance (“the TNA”) with campaigning in 2012. The delegate did not accept that the applicant assisted the TNA with campaigning activities in 2012. The applicant claimed to fear harm from the Sri Lankan authorities due to his activities supporting the TNA and his imputed support of the Liberation Tigers of Tamil Eelam (“the LTTE”).

The Authority’s decision

1. On 18 August 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority identified the limited circumstances in which new information could be received. The Authority provided a fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information. 

2. On 20 October 2016, the Authority affirmed the decision under the review. The Authority identified the background to the visa application and had regard to the material referred by the secretary, under s.473CB of the Migration Act.

3. The Authority set out the applicant’s claims and in relation to the applicant’s political activity, the Authority referred to the Safe Haven Enterprise visa interview where the applicant was asked about the TNA’s background.

4. The applicant was unable to identify smaller parties making up the TNA and said he was not aware of that. The applicant identified he did not have much political experience.  At the Safe Haven Enterprise visa interview, the applicant described the extent of his activity supporting a particular person, as the local TNA candidate in the 2012 election, as pasting posters up in his home village on 20 August 2012. 

5. The Authority made reference to testimonials as to the applicant’s character, as well as the applicant providing a document dated 12 October 2012, from a Member of parliament which stated the applicant was threatened by unknown persons on the evening of 20 August 2012, as well as a copy of a police report dated 21 August 2012, regarding an encounter with unidentified men.

6. The Authority, identified after having considered the applicant’s rudimentary knowledge of the TNA, did not accept that the applicant had been politically active in Sri Lanka. The Authority did not accept as plausible that a person such as the applicant, who was not politically active, had no demonstrated interest in politics and who in his own words did not have much political experience, would agree to paste up posters for a political candidate he had become aware of the day before.

7. The Authority also referred to country information that document fraud is prevalent in Sri Lanka. The Authority found that the applicant had no role campaigning for the TNA and no political profile. The Authority placed no weight on the documents from the Member of parliament, the police report or the character references.

8. The Authority did not accept as plausible that the applicant was accosted and assaulted by five unknown men who told him not to assist the TNA, threatened his parents, somehow obtained his mobile telephone number and subsequently contacted him telling him to meet at another village. The Authority did not accept that the applicant played any role in campaigning for the particular person or the TNA, assisted in the campaign for the TNA, or that he has been imputed with any political profile.

9. The Authority did not accept the applicant’s reasons as for why he departed Sri Lanka. The Authority found the applicant did not have any imputed links to the LTTE through having supported a particular person. 

Refugee convention criteria assessment

1. The Authority found the applicant will not face a real chance of harm on account of his political opinion.  The Authority made reference to an identity check in 2009, the applicant being released after his identity card was checked, indicating strongly that the Sri Lankan authorities were satisfied that the applicant had no LTTE connections. The Authority was satisfied the applicant will not face real chance of harm from Sri Lankan authorities, on return to Sri Lanka. The Authority was not satisfied the applicant faces a real chance of serious harm on the basis of being a Tamil.

2. The Authority made reference to the process to which the applicant will be subject as an illegal departee and returning as a failed asylum seeker. The Authority accepted the applicant will be required to pay a fine, but was not satisfied this or the provision of a surety amounts to serious harm. The Authority was not satisfied that the payment of fine, being held in detention for a short period and questioning cumulatively amounts to serious harm. 

3. The Authority identified the process and treatment to which the applicant would be subject, under the Immigrants and Emigrants Act, and identified that it was not discriminatory on its face nor is it applied in a discriminatory manner. The Tribunal found the Immigrants and Emigrants Act is a law which applies to all Sri Lankans. The Tribunal observed that a generally applicable law will not ordinarily constitute persecution because the application of the law does not amount to discrimination.  The Authority found the treatment the applicant will face as a consequence of the application of the Immigrants and Emigrants Act is not persecution within the meaning of the Act.

4. Having considered the applicant’s claims individually and cumulatively, the Authority was not satisfied the applicant had a well-founded fear of persecution. The Authority found the applicant does not meet the definition of refugee in s.5H(1) of the Migration Act and found the applicant failed to meet the criteria under s.36(2)(a) of the Migration Act.

Complementary protection criteria assessment

1. The Authority turned to the issue of complementary protection. The Authority was not satisfied there was a real risk that the applicant will face significant harm during the investigation process, or while being held at the airport. The Authority found there was no intention to inflict pain or suffering or cause extreme humiliation.

2. The Authority found the poor prison conditions to which the applicant may be subject to do not of themselves constitute significant harm as defined by the Migration Act. The Authority was not satisfied the applicant will face a real risk of significant harm during any brief period spend in detention.

3. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant would suffer serious harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Migration Act.

Before this Court

1. The grounds of the second amended application are as follows:-

   Ground 1

   The IAA committed error in making giving reasons that were so unreasonable that no reasonable decision maker could come to that conclusion.

   Ground 2

   The IAA committed error in the manner in which it dealt with the country information about fraudulent documents.

   PARTICULARS FOR BOTH GROUNDS

   a. At [CB 3, Q21, the applicant stated in his arrival interview on 27 September 2012 that he left his country of origin “Because I didn't have a job I was helping out at the election and armed group took my ID and after that I received threatening calls and my life was  in danger".

   b. At [CB 60, paragraph 8] the applicant stated that on or around 19 August 2012 a member and election candidate “came to the area I resided as he was canvassing for votes prior to the Sept 2012 provincial .............. and he knew my brother in law".

   c. [CB 60 paragraph 9] “My family and I agreed to support (the candidate) as my family like many other families supported the TNA. Also, (my brother in law taught (the candidate's) nieces in school.

   d. [CB60, paragraph 10] the applicant alleges that the following night he was pasting posters alone when he was confronted by 5 men in a white van.

   e. [CB 94] Contains what purports to be an English translation of an extract from the Information Book of the Kattankudy Police Station dated 21 August 2012. The date of issue of the extract is alleged to be 28 September 2012 and the date of translation is apparently 9 September 2013.

   f. It is noted that the applicant provided generally consistent information in his arrival interview, statutory declaration and SHEY interview. The alleged extract from the Police Information book is also consistent.

Consideration

Ground 1

1. In relation to ground 1, Mr Hodges, the solicitor for the applicant, took issue with the Tribunal’s reasoning, in relation to whether it was plausible that a person, such as the applicant, who is not politically active, would engage in the pasting up of posters. Mr Hodges submitted that the reasoning of it not being plausible lacked logic and it was consequentially unreasonable.

2. Mr Hodges also submitted that it was illogical and unreasonable for the Authority to find that the applicant’s claims about alleged abduction by the five unknown men in a white van was implausible.

3. The Authority provided reasons in support of the adverse credibility findings based on evidence the applicant had given, and reasons why the Authority gave little weight to the corroborative material that the Authority identified. The Authority’s reasons were open on the material, and cannot be said to lack an evident and intelligible justification.

4. The Authority provided reasons in support of the finding about the applicant not being politically active which included the applicant’s lack of interest in politics and rudimentary knowledge. The incident involving the attempted abduction by five unknown men was clearly linked by the applicant to the alleged political involvement by the applicant and the incident alleged by the applicant in October 2012. In these circumstances, the adverse findings by the Authority were rational and logical. 

5. In substance, ground 1 invites the Court to engage in an impermissible merits review. The adverse reasoning of the Tribunal was one which a reasonable decision maker could come to.  No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, Mr Hodges took issue with the way the Authority dealt with, in particular, a police report, which purported to corroborate the applicant’s allegations as to what occurred on 20 August 2012 before he left Sri Lanka.  The Authority provided rational and cogent reasons for why it gave little weight to that police report and other purported corroborative material. There is no basis to contend that the Authority did not give consideration to the alleged corroborative evidence, and the adverse findings by the Authority in that regard were open. Having found that the applicant played no role in campaigning for the TNA, it was open to the Authority to place no weight on the documents purporting to corroborate the applicant’s claims.

2. The Authority also identified the prevalence of fraudulent documents in Sri Lanka. A cursory look at the Sinhalese police extract report and the translation identifies obvious reasons why caution would have been exercised by the Authority in accepting the document.

3. The Authority identified that it was the prevalence of fraudulent documents and the rejection of the applicant’s credit that was the reason for rejecting the corroborative material. No jurisdictional error is made out by ground 2.

Conclusion

1. The second amended application is dismissed. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 23 August 2017