DPJ16 v Minister for Immigration

[2019] FCCA 508

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPJ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 508

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – safe haven enterprise visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473CB

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

Applicant: DPJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2555 of 2016

Judgment of: Judge Hartnett

Hearing date: 22 November 2018

Delivered at: Melbourne

Delivered on: 5 March 2019

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the First Respondent: Mr Solomon-Bridge

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,162.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2555 of 2016

DPJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. By application filed 25 November 2016, the Applicant sought judicial review of a decision of the Second Respondent, the Immigration Assessment Authority (‘the Authority’) which affirmed a decision of a delegate of the First Respondent (‘the delegate’) to refuse to grant the Applicant a Safe Haven Enterprise visa (‘the visa’).

2. The Applicant is a citizen of Sri Lanka. He arrived on Cocos (Keeling) Islands, West Island, on 11 September 2012 as an illegal maritime arrival.  He was interviewed in October 2012 (‘the entry interview’). In 2013, the Applicant made an invalid application for a Protection (Class XA) visa. On 24 September 2015, the Applicant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa. On 23 October 2015, the Applicant lodged a valid application for a Safe Haven Enterprise visa.

3. The Applicant was invited to attend for an interview to discuss his visa application and claims that he was a person in respect of whom Australia had protection obligations in correspondence sent by email dated 23 December 2015. The Applicant was thereafter interviewed by the delegate on 21 January 2016.

4. On 5 August 2016, the delegate refused to grant the visa and gave details and extensive reasons for doing so. Thereafter, the matter was referred to the Authority on 9 August 2016 for review. On 28 October 2016, the Authority determined to affirm the decision not to grant the Applicant the visa. That decision was set out in a Decisions and Reasons Record (‘the Decision Record’).

5. The Applicant filed an amended application on 5 November 2018 and by that amended application for judicial review, the Applicant alleges the Authority fell into jurisdictional error in that it failed to consider a relevant consideration. Essentially, the Applicant submitted that in considering the risk of harm to the Applicant on his future return to Sri Lanka as an illegal immigrant, the Authority failed to consider the effect on that risk of the “Checks [which] involve interviewing the returnee, contacting their home area’s police, neighbours and family and checking criminal and court records”. [1] In the alternative to that particular, as set out in the single ground of the application, the Applicant submits the Authority failed to consider whether, although it may be determined after investigation on his return to Sri Lanka that he is not of interest to the authorities, nonetheless, during that investigation, he may again suffer torture or assault or other serious harm.

   [1] Decision Record, 40.

6. The delegate accepted the Applicant was of Tamil ethnicity from the north of Sri Lanka, who had lived for many years in India. He accepted that in 2008/2009, the Applicant was forcibly recruited by and escaped from the Liberation Tigers of Tamil Eelam (‘LTTE’) and was arrested, detained and harmed by the Sri Lankan Army (‘SLA’). However, the delegate did not accept that the Applicant was subsequently charged or that he was subject to an outstanding arrest warrant. Noting these factors and the changed country situation derived from country information as to Sri Lanka, the delegate found the Applicant would not face a real chance of persecution or real risk of significant harm upon return. 

The Authority

1. The Authority had regard, as set out in paragraph three of the Decision Record, to the material referred by the Secretary, under s.473CB of the Migration Act 1958 (Cth) (‘the Act’). The Authority summarised the Applicant’s claims for protection in paragraph four of its Decision Record. In respect of its consideration of the Applicant’s claims, the Authority set out its findings in the Decision Record with those findings being an acceptance of some of the claims made by the Applicant and a non-acceptance of others.

2. The Authority found that the Applicant was detained and interrogated under suspicion of being a government informant and then forcibly recruited for LTTE training. The Authority accepted that training consisted of around 15 days physical training, watching propaganda videos and training in mental strength/willpower at Selvanagar camp.  The Authority accepted the Applicant escaped on foot and subsequently tried to move through the Omanthai checkpoint amongst a group of civilians but that he was stopped, had his identity checked, and was then further detained.

3. The Authority accepted he was beaten, stripped and detained in one location near the checkpoint for the next three to four days and then taken to another location where he was interrogated under suspicion of LTTE connections. The Authority was prepared to accept the Applicant was tortured and threatened during his ordeal, lasting around several weeks. In its consideration of the Applicant’s claims that he was handed over to the police in July 2008, brought before a Magistrate on suspicion of being an LTTE member/supporter, detained for around five days and then bailed with reporting conditions, the Tribunal was satisfied that the fact that the Applicant was released (albeit with reporting conditions) without charge pending evidence gathering indicated that there was insufficient evidence linking the Applicant to the LTTE at that time.

4. The Authority said as to these matters, in paragraphs 18 and 19 of the Decision Record, the following:-

   “18.  The period the applicant was arrested, bailed and required to report was in 2008/09 - towards the end of the war. Country information indicates that during this period large numbers of LTTE members were arrested and detained by Government security forces on the grounds of any association with the LTTE.  The majority of those arrested were sent to Government-run rehabilitation centres while a smaller number were prosecuted through Sri Lanka’s court system. Even in the aftermath of the war, when the applicant claims he was still hiding, Sri Lankan authorities maintained efforts in seeking out and arresting, detaining and remanding in rehabilitation centres both high and low profile LTTE members as well as non-members they suspected had assisted the LTTE, even if their involvement was purely peripheral.  Information about these periods, including reports referenced by the applicant, indicate that those seriously suspected of membership or of assisting LTTE were dealt with quite harshly, in the form of protracted detentions, harsh mistreatment and rehabilitation…

   19. Yet, the applicant was released by the Magistrate due to a lack of evidence connecting him with the LTTE, and by the CID the two times he reported. The applicant managed to stay in his locality for all (or at least most) of the next couple of years, evading authorities while continuing to work.  I am satisfied that had the applicant been of serious interest to the CID or other authorities in relation to LTTE activity or connections during this period they would have found him.  I accept the applicant went to Trincomalee and stayed with his cousin in 2011 but I do not accept that the applicant lived in hiding in his local area from 2008 - early 2011.  I also find it implausible that the applicant hid from the authorities with family in Trincomalee given the sustained level of interest in him the applicant claims the authorities maintained.”

5. The Authority thereafter found, relevantly, in paragraphs 22 and 23 of the Decision Record, the following:-

   “22. I have not accepted that the applicant was in hiding from 2008 and could not have been apprehended by the authorities if he was of interest to them.  I find it implausible that he would be sent multiple notices to appear in court rather than simply being arrested, and without any charges ever being laid against him.  I also consider it implausible that the applicant would have a lawyer attend and represent him when he was as he claims, hiding from the authorities altogether.  I do not accept the applicant's evidence about the court proceedings against him subsequent to the initial Magistrate’s appearance and I place no weight on the documents provided to support his claim of the continuing case. Given the applicant claims he was sent numerous notices to appear in court and has been the subject of an arrest warrant for almost eight years, I find it implausible that his parents would need to approach the court for evidence of an outstanding warrant against him.  I do not accept that any such warrant exists.  These factors, coupled with the fact the applicant remained in the local area and in Trincomalee with family – during a time when the Sri Lankan government was actively hunting down LTTE suspects, indicate to me that he was not a concern to the authorities during this time. 

   23.  In his written application the applicant stated his father and brother were interrogated by the CID in June 2013 and in the SHEV interview he stated that many times since his departure the CID and police have visited his home and asked his parents about him.  He also claims he has a feeling the phone line is tapped and that his conversations with his family are being recorded.  While I accept that routine monitoring of Tamils in the Northern province was still occurring in 2013, given my concerns and reasoning outlined above, I do not accept the authorities were interested in the applicant subsequent to 2008, even despite defaulting on reporting requirements. I do not accept that the authorities interrogated his family members five years later, nor that they visited his home many times since his departure. I also do not accept the authorities have tapped his phone or recorded his conversations.”

6. The Authority accepted the Applicant still bore some visible injuries from his ordeal in 2008, but did not accept the Applicant’s scars would contribute to give the Applicant a risk profile. The Authority referred to United Nations High Commissioner for Refugees country information which indicated that individuals with scarring are not more prone to adverse treatment upon return and nor, as the Authority noted, was that advised by the Department of Foreign Affairs and Trade (‘DFAT’) Country Information Report Sri Lanka 18 December 2005. Further, the Authority was satisfied that the Applicant’s residence in India between 1990 and 2004 did not bestow on him a risk profile. The Authority was also not satisfied the Applicant faced a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race or his origins from the North, nor would he face persecution in the reasonably foreseeable future on account of his being a young Tamil of male gender or that his scarring would elevate his profile to be of adverse interest to any authorities.

7. Relevantly in respect of ground 1(a) of the amended application, the Authority accepted in paragraph 39 of the Decision Record that “should the Applicant be returned to Sri Lanka, he would be identifiable to authorities at the airport as a failed asylum seeker who departed illegally”.  At paragraph 40 of the Decision Record, the Authority went on to observe as follows:-

   “Entry procedures upon arrival back in Sri Lanka may take several hours as involuntary returnees are processed by Immigration, Police and Intelligence Services to check identity and to see if the returnee has any outstanding criminal matters. Checks may involve interviewing the returnee, contacting their home area’s police, neighbours and family and checking criminal and court records.  DFAT assesses that returnees are treated in accordance with these standard procedures, regardless of their ethnicity and religion.  DFAT assesses that they are not subject to mistreatment while undergoing these checks.”

Consideration

1. Paragraph 40 (above) of the Decision Record clearly implies an acceptance by the Authority of relevant country information before it.

2. The finding of the Authority was that the authorities were not interested in the Applicant subsequent to 2008, despite his defaulting on reporting requirements (see paragraph 23 of the Decision Record as referred to in paragraph 11 above). Therefore, as submitted by the First Respondent, even if the checks which “may” be conducted “may” reveal the matters mentioned by the Applicant, the Authority had made conclusive findings that the Applicant was simply no longer of any interest, including on the grounds of his failure to report.

3. The Applicant’s case before the delegate and the Authority was that he would come to the further attention of the authorities because of the claimed outstanding warrant for his arrest. The Applicant could furnish no documentary evidence to support that claim and both the delegate and the Authority did not accept that particular claim of the Applicant. The Authority said, relevantly, at paragraph 47 of the Decision Record:-

   “I have not accepted that there are any outstanding warrants or court cases against the applicant. On the evidence before me, I find that the applicant will be issued a fine and released, or if he pleads not guilty, he will be released on his own personal surety…”

4. I agree with the First Respondent that it was not incumbent on the Authority to deal with some other case that was not put by the Applicant.

5. Ground 1(a) is dismissed.

6. By ground 1(b), the Applicant submits that the Authority failed to consider whether, although on return it may be determined after investigation that he were not of interest to the authorities, that the Applicant may, nevertheless, suffer torture or assault or other serious harm during the investigation.

7. At paragraph 40 of its Decision Record the Authority set out the assessment of DFAT that returnees “are not subject to mistreatment while undergoing these checks”.  The Authority was only required to consider such claims as put before it by the Applicant when such claims were either (a) the subject of substantial, clearly articulated argument, relying on established facts; or (b) clearly emerged from the materials. [2] The matters now raised was not part of the clearly articulated matters raised as part of the Applicant’s claims, nor did they emerge on the materials.  Rather, the Applicant now asserts, the Authority was bound to consider these matters simply because of its findings that the Applicant would be processed by immigration police and intelligence services, and the checks may involve interviewing the returnee, contacting their home area’s police and checking criminal records.

   [2] AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, 18.

8. The Authority made, as can be seen in the Decision Record, comprehensive findings that the Applicant was not of any interest to the authorities subsequent to 2008, nor that his family were interrogated or otherwise questioned about the Applicant after he departed. The Authority did not accept the Applicant was currently of interest or the subject of an arrest warrant. Given these findings, the Authority did not accept the risk profiles it considered in its canvassing of relevant country information applied to the Applicant in his circumstances. [3]

   [3] Decision Record, 32.

9. These findings of the Authority were clearly findings open to the Authority on the material before it.

Conclusion

1. The Applicant is unable to demonstrate that the Tribunal decision is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed. Costs shall follow.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  5 March 2019