DPM16 v Minister for Immigration and Anor (No.2)

[2017] FCCA 554

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPM16 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 554

Catchwords:
MIGRATION – Immigration Assessment Authority – Protection (Class XA) visa – whether the Authority made an express finding of an alleged essential integer of the applicant’s claims – whether the Authority made an express finding on a claim that reasonably arose on the material before the Authority – there was no failure by the Authority to take into account an essential integer of the applicant’s claims – the applicant made no claim to fear harm because of the fluid political situation and no such claim reasonably arose on the material before the Authority – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36(2), 473CB, 476

Cases cited:

SZTAL v Minister For Immigration and Border Protection [2016] FCAFC 69

Applicant: DPM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3323 of 2016

Judgment of: Judge Street

Hearing date: 23 March 2017

Date of Last Submission: 23 March 2017

Delivered at: Sydney

Delivered on: 23 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

By direct access

Solicitors for the Respondents:

Ms S Given

HWL Ebsworth

ORDERS

1. Leave is granted to the Applicant to rely upon the amended application in the Applicant’s submissions filed on 8 March 2017 and the Court dispenses with the need to file a separate document.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3323 of 2016

DPM16

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) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 9 November 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 were assessed against that country. The applicant is a Tamil from the Eastern Province in a particular area and claimed to fear harm from rival political groups, the Sri Lankan authorities and paramilitary groups because he attended a TNA meeting in 2012. The applicant also claimed to fear harm by reason of being a failed asylum seeker.

3. On 26 September 2012, the applicant departed Sri Lanka and arrived in Australian waters on 10 October 2012 as an Irregular Maritime Arrival.  On 30 October 2012, the applicant participated in an entry interview at Christmas Island. Between 10 October 2012 and March 2013, the applicant was in various detention centres following which he was released into the community on the mainland.

4. On 3 March 2016, the Department received an application for a subclass 790 Safe Haven Enterprise Visa from the applicant. That application included a statement by the applicant dated 5 February 2016 setting out the applicant’s claims. On 12 July 2016 the applicant participated in an interview with the delegate.

5. On 21 July 2016 the applicant’s agent provided a post interview submission to the department. In the third paragraph of the submission, the applicant’s agent referred to the current situation in Sri Lanka being fluid and one characterised by ongoing human rights concerns such as issues with post-conflict justice, torture and mistreatment, disappearances, white van abductions, arbitrary detention or freedom of expression. The submission referred to an article in the UN Special Rapporteur published on 7 May 2016 and reference was made to the defeat of the Tamil Tigers in 2009 and ongoing concern of persecution of the Tamil population.

6. The submission subsequently referred to the defeat of the LTTE in May 2019 which resulted in non-state agents of persecution such as the armed pro-government paramilitary groups of Karuna and Pilliayan who terrorise, harm and extort money from the Tamil population in the Eastern Provinces. The submission received from the applicant’s agent identified risk factors in relation to the applicant and referred to the current threat of pro-Tamil separatists regrouping as well as incidents of alleged abduction in April 2016. The submission expanded upon the cumulative risks faced by Tamils and allegedly by the applicant and maintained that there was a real risk of the applicant suffering serious harm or significant harm if forced to return to Sri Lanka.

The Delegate

1. On 23 September 2016 the delegate made a decision refusing to grant the applicant a subclass 790 Safe Haven Enterprise Visa. The delegate was not satisfied that the applicant’s fear of persecution on the basis of his political opinion, actual or imputed, was well founded.

2. The delegate was not satisfied that the applicant’s fear of harm as a result of being a prospective failed asylum seeker who departed Sri Lanka unlawfully was well founded. The delegate was not satisfied the applicant was a refugee as defined by s.5H(1) of the Act and was not satisfied the applicant was a person to whom Australia had protection obligations under s.36(2)(a) of the Act.

3. The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka there is a real risk that the applicant will suffer significant harm as outlined in s.36(2)(aa) of the Act.

4. The delegate found the applicant was not a person in respect of whom Australia had protection obligations under s.36(2) of the Act.

The Authority

1. On 29 September 2016, the Authority wrote a letter to the applicant identifying that the matter had been referred to the Authority for review. The letter identified that the Department provided the Authority with the documents considered relevant to the applicant’s case and that that included any material that the applicant had provided to the Department before the delegate’s decision. The letter identified that the Authority would proceed to make a decision on the applicant’s case on the basis of the information sent by the Department unless the Authority decided to consider new information. The letter explained that the Authority could only consider new information and limited in circumstances and there is an attached explanation in that regard. The letter provided an opportunity to put submissions.

2. The applicant’s representatives requested an extension of time for submissions which was granted, following which on 27 October 2016 submissions were sent to the Authority by the applicant’s migration agent. Those submissions included a statement of the applicant continuing to rely on all evidence and submissions previously provided on behalf of the applicant, including the country information. Those submissions summarised the applicant’s claims as fearing persecution by reason of his ethnicity as a Tamil, by reason of his imputed political opinion as an anti-government and pro-LTTE supporter and that the applicant is a member of a particular social group of failed asylum seekers from a western country and a Tamil who left Sri Lanka illegally.

Information before the Authority

1. The Authority, in its reasons dated 9 November 2016, identified the applicant’s migration background and specifically referred to the material referred under s.473CB of the Act. The Authority referred to the submission received on 27 October 2016 and noted that the submission included material that was before the delegate. The Authority expressly referred to having regard to those reports that were before the delegate and the sections of the submission that addressed the delegate’s decision and findings.

2. The Authority referred to the statutory constraint in relation to the consideration of new information unless satisfied exceptional circumstances justify considering the new information. The Authority accepted there were some articles that post-dated the delegate’s decision and the Authority accepted that those articles could not have been provided to the delegate and expressly identified having regard to those articles. The Authority identified that there was other information that pre-dated the delegate’s decision and that there was no explanation as to why that information could not have been made available to the Minister. The Authority was not satisfied that there were exceptional circumstances that existed to justify the Authority considering that new information. 

3. The Authority set out the applicant’s claims for protection and relevantly, in paragraphs 11 and 12 set out the relevant law. No challenge is made of the law as is set out by the Authority.

Refugee criterion assessment

1. The Authority referred to a particular incident in 2012, whereby the Authority accepted the applicant attended a hospital in September 2012 to receive treatment after an assault. The Authority accepted as plausible that the assault occurred as a result of the applicant attending the TNA meeting and pasting election posters. The Authority referred to the fact that although the applicant only attended one meeting, pasted some posters and was not a TNA member or active supporter, it was plausible that the applicant was harassed and beaten by unknown people after attending the meeting.

2. The Authority referred to the 2012 provincial elections being conducted in a tense and volatile environment and that there was significant harassment by all sides of their opponents. The Authority found the events in 2012 did not give rise to a real chance of any harm should the applicant return to Sri Lanka now.  The Authority referred to the fact that the applicant has not indicated any ongoing interest in being involved with the TNA on return to Sri Lanka, or in Sri Lankan politics generally. The Authority referred to the fact that even if the applicant were to become involved with the TNA or politics generally on return, this would not give rise to a real chance of harm. The Authority observed that since the 2012 elections, the general easing of tension across Sri Lanka allowed the 2015 elections to be conducted without a repetition of the 2012 violence.

3. The Authority referred to the Department of Foreign Affairs and Trade country information report dated 18 December 2015 which advised that the January 2015 presidential election was relatively orderly. The Authority noted that the DFAT country report advised that the Commonwealth Observer Group described the August 2015 parliamentary elections as credible, met the key criteria for democratic elections and that the outcome reflected the will of the people.

4. The Authority referred to having had regard to the post-interview submissions from the applicant’s representative in which she referred to the current country information showing the regime of the President has become paranoid about the re-grouping of the pro-Tamil separatists. The Authority referred to the submission referring to a number of recent activities involving the TNA making public statements about various matters, such as the party’s disapproval of the Prevention of Terrorism Act and condemnation of the recent shooting of two Tamil youths by police. The Authority noted that the submission stated that news outlets are reporting that new waves of violence may erupt, as indicated by the large protests across Sri Lanka. The Authority accepted that the government continues to pursue any activity that indicates a resurgence of the LTTE. The Authority observed that there is no indication that the applicant’s low level activity with the TNA in 2012 would lead to a real chance of harm on return to Sri Lanka either on the basis of his past activity or any future involvement.

5. The Authority referred to the applicant attending only one meeting and pasting two election posters and found that while that could have accounted for the harassment at the time, the Authority was not satisfied that the applicant would be of interest to opposition parties, the authorities or paramilitary groups now. The Authority referred to the country information which indicated that various parties sought to disrupt the election campaigns of their opponents with the aim of hampering the campaign of their opponents. The Authority noted that country information does not support ongoing harassment of people with low profile political involvement such as the applicant. The Authority noted that since the visit to the applicant’s grandmother in 2012, there has been no ongoing interest in the applicant.

6. The Authority referred to the submission contending that the assault in 2012 was indicative of Sri Lankan authorities imputing anti-government ideologies to the applicant and because he left Sri Lanka illegally straight after the assault this would amount to admission of guilt in the eyes of the perpetrators. The Authority did not accept, by reason of the applicant being involved in the 2012 election campaign, that the applicant established a profile of being anti-government. The Authority found there was no real chance of any harm arising from the applicant’s activities in 2012 nor if he should return and adopt a role supporting the TNA now.

7. The Authority referred to the applicant being a Tamil from a former LTTE controlled area and his fear of being imputed with an LTTE profile. The Authority noted that the applicant stated that neither he, nor any of his family members had been involved with the LTTE, nor had any contact with the authorities in regard to the LTTE activities.

8. The Authority placed significant weight on the advice of the UNHCR in a current guideline which provides guidance on the profiles of people at risk of harm and likely to be in need of protection in assessing the applicant’s claims and in assessing whether the applicant’s profile as a Tamil from a former LTTE controlled area would result in the authorities imputing him with an LTTE profile. The Authority noted that according to that guideline, being of Tamil ethnicity alone does not give rise to protection needs. The Authority found the DFAT and UNHCR reports establish that Tamils from the former LTTE areas are at a low risk of being questioned or detained by the authorities simply for being Tamil and that the DFAT country information report advises that monitoring of Tamils from the former the LTTE areas has decreased under the new government.

9. The Authority accepted that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils, and expressed having had regard to the country information provided by the applicant’s representative. The Authority did not accept that by being a Tamil and from a particular district the applicant had been imputed with an LTTE profile.

10. The Authority was not satisfied on the evidence before the Authority that the impact of lower living standards or health care would result in systematic and discriminatory conduct or for reason of the applicant’s Tamil race, nationality, religion, political opinion or membership of any political or social group. The Authority found that the living standards of the country fall short of the level of serious harm and systematic and discriminatory conduct required to be considered as persecution. 

11. The Authority referred to the applicant’s concerns in respect of the attitude of neighbours and the Authority did not accept that the feared harm involved serious harm and systematic and discriminatory conduct as defined under s.5J(5) of the Act.

12. The Authority accepted that the applicant is an asylum seeker and that as he departed Sri Lanka illegally, he will come to the attention of the authorities on return. The Authority also took into account the applicant’s assertions of poor psychological functioning and vulnerability.

13. The Authority found that if a magistrate was not available the applicant could be held in a nearby prison on his return to Sri Lanka for a short time. The Authority found that the applicant may be detained and questioned at the airport for up to 24 hours and be fined for breaching the Immigrants and Emigrants Act 1949 and may face a period of time held in prison.

14. The Authority referred to the general poor prison conditions and the applicant’s psychological and vulnerability issues but did not consider that the brief period of detention would constitute the necessary level of threat to his life or liberty, or to significant physical harassment or ill-treatment under s.5J(5) of the Act or otherwise amount to serious harm to the applicant.

15. The Authority considered any likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or an imposition of a fine under the Immigrants and Emigrants Act 1949 would not constitute a threat to his life or liberty, or be significant physical harassment or ill-treatment under s.5J(5) of the Act or otherwise amount to serious harm.

16. The Authority made reference to the Immigrants and Emigrants Act 1949 as being a law that was not discriminatory on its terms and referred to the case law supporting that it is a law generally applied which will not ordinarily constitute persecution if it is not applied in a discriminatory manner. The Authority found that the law was not selectively enforced and that it was not applied in a discriminatory manner. The Authority found that the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act 1949 would be the result of a law of general application and does not amount to persecution for the purposes of s.5H(1) or s.5J(1) of the Act.

17. The Authority accepted that the applicant will return as a failed asylum seeker and assessed the risk of harm for the majority of returnees as low. Taking into account the country information, the Authority did not accept that the applicant would be at risk of adverse attention from the current Sri Lankan authorities when processed on arrival in Sri Lanka. 

18. The Authority was not satisfied the applicant faces real chance of persecution on the basis of his being a failed Tamil asylum seeker who department Sri Lanka illegally now or in the reasonably foreseeable future.

19. The Authority was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, whether because of his illegal departure, having made a claim for asylum in Australia, for his involvement with the TNA in the 2012 election or any future political activity, any perceived links to the LTTE, as a Tamil from a former LTTE controlled area, his psychological condition or vulnerabilities, the robbery of his mother, or any combination of these.

20. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s.5J of the Act and found that the applicant was not a refugee within the meaning of s.5H(1) of the Act. The Authority found that the applicant did not meet the criterion under s.36(2)(a) of the Act.

Complementary protection criterion assessment

1. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The Authority found that the applicant did not meet the criterion under s.36(2)(aa) of the Act.

Before this Court

1. On 8 March 2017, the applicant’s counsel Mr Zipser filed submissions in Court attaching an amended application. The Court made orders today granting leave to the applicant to rely upon the grounds in the amended application and dispensed with the need for the filing of a further document in that regard. 

2. The three grounds identified in the amended application are as follows:-

   1. The applicant claimed that the political situation in Sri Lanka was “fluid”: CB 124. The Immigration Assessment Authority (“the IAA”) overlooked this aspect of the applicant’s claims in considering the reasonably foreseeable future. This was a jurisdictional error.

   2. The IAA, at paragraph 21 of its decision, equated a “low risk” of Tamils from the former LTTE areas being detained with an absence of a real chance of detention and persecution. This involved an erroneous application of the real chance test, which was a jurisdictional error.

   3. The IAA found at paragraph 49 of its decision that “the evidence does not indicate there is an intention to inflict or to cause pain or suffering or extreme humiliation.” The IAA erred in its construction of the term “intentionally inflicted” in the definition of “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act. This was a jurisdictional error.

1. At the commencement of the hearing, Mr Zipser of counsel confirmed that Ground 3 was one in respect of which he accepted this Court is bound by the decision of the Full Court in SZTAL v Minister For Immigration and Border Protection [2016] FCAFC 69 and that Ground 3 was a formal submission to preserve the applicant’s rights should there be a favourable outcome in the High Court challenge. This was a proper course for counsel to take. I am bound by the Full Court of the Federal Court’s decision and because of that, Ground 3 could not succeed. No jurisdictional error is made out by Ground 3.

Consideration

1. In respect of Ground 1 of the amended application, Mr Zipser of counsel took the Court to a submission that was made in a letter to the delegate dated 21 July 2016 and which appeared twice in the court book and has been referred to in the Court’s reasons above.

2. Mr Zipser of counsel contended that the Authority had not made an express finding in relation to the fluid political situation and that this was either an essential integer of the applicant’s claims or was a claim that reasonably arose on the material before the Authority. The submission dated 21 July 2016 was expressly picked up by the submissions made on behalf of the applicant to the Authority in the email dated 19 October 2016.

3. I accept the submissions of the first respondent that the applicant made no claim to fear harm because of the fluid political situation and that no such claim reasonably arose on the material before the Authority. The Authority’s reasons reflect a genuine intellectual engagement with the submissions advanced on behalf of the applicant and on a fair reading, took into account the submissions of the applicant that were incorporated by the submissions provided on 19 October 2016. That intellectual engagement is supported by the language used by the Authority.

4. On a fair reading of the reasons, after referring to the 2012 incident and then focusing upon since the 2012 elections, there was no failure by the Authority to take into account an essential integer of the applicant’s claims. No jurisdictional error as alleged in Ground 1 is made out.

5. In relation to Ground 2, Mr Zipser of counsel took the Court to a passage in paragraph 21 of the Authority’s reasons where there was a reference to the proposition of there being a low risk of Tamils from a former LTTE area being questioned or detained. Mr Zipser of counsel took the Court to the authorities in relation to a well-founded fear of persecution and importantly, the authorities supporting that the assessment of a well-founded fear does not turn on a probability exercise and that one could have a risk that is less than 50 per cent and is still a well-founded fear.

6. If the Authority had not correctly set out the relevant law and had not proceeded to make findings in its reasons that reflect an application of that law, there would be force in Mr Zipser’s submission in the present case. However, on a fair reading of the Authority’s reasons, the Authority was identifying what country information established and it was open to the Authority to take into account that country information. This is not a case where the Authority has failed to correctly apply the real chance test.

7. I accept the first respondent’s submissions that the Authority correctly identified the relevant law and on a fair reading of the Authority’s reasons as a whole, it is apparent that the Authority correctly applied the relevant law. No jurisdictional error is made out by Ground 2. 

Conclusion

1. In these circumstances, the amended application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  5 April 2017