DQM17 v Minister for Immigration

[2020] FCCA 2249

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQM17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2249

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority misapplied the well-founded fear test or failed to take into account a relevant issue considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

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

Cases cited:

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: DQM17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2561 of 2017

Judgment of: Judge Driver

Hearing date: 13 August 2020

Delivered at: Sydney

Delivered on: 13 August 2020

REPRESENTATION

The Applicant appeared in person by telephone

Counsel for the Respondents: Mr T Reilly by telephone

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The title of the first respondent is amended to “Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2561 of 2017

DQM17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 27 July 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s claims for protection and the Authority’s decision on them are conveniently set out in the Minister’s outline of submissions, which I adopt.

3. The applicant fears harm from the Sri Lankan Defence Force (SLA), Criminal Investigation Department (CID) and paramilitary groups because of his ethnicity as a Tamil and imputed links to the Liberation Tigers of Tamil Eelam (LTTE) as a result of family connections, involvement in political campaigns and being forced to assist the LTTE as the branch manager of his local Cooperative Society.  The applicant also fears harm as a failed asylum seeker.

4. The applicant is from a named location in the Eastern Province of Sri Lanka, an area formerly controlled by the LTTE.  Between 1989 and 1993 the applicant’s older brother was forced to do manual labour for the LTTE. In 1993, the applicant was detained by the CID for three days and questioned about his brother. While the applicant was detained, his brother was shot and killed.  The applicant believes his brother was shot by the SLA and that the CID released the applicant because they knew his brother was dead.

5. The applicant married in 1992.  The applicant’s uncle by marriage was in charge of the LTTE political wing in the Eastern Province.  His wife’s family were often arrested and detained by the SLA in relation to their uncle.

6. In 1993, the applicant’s “marital home” (the home of his mother-in-law, where the applicant resided after he married), and the homes of some neighbours, were taken over by the SLA and used as a camp by the SLA and then the police until 2010.  In 2010 the applicant sent a letter to the Sri Lankan President requesting the release of the house.  The applicant also participated in a demonstration to campaign for the properties to be returned.  The applicant and his family faced some adverse attention from the police as a result of these actions.  The house was returned to the applicant and his family in 2010, after intervention from the United Nations Sri Lankan Monitoring Mission.

7. In 1995, the applicant began working as the Branch Manager for the Cooperative Society, which provided food and rations to people in the community.  In 2007 to 2008 the LTTE forced the applicant to provide them with food rations.  At around the time of the final war between the SLA and the LTTE in the area, the applicant was arrested and detained by the CID.  He was released after three days because the CID had no proof that he had given supplies to the LTTE.

8. From 1995, the applicant worked as a part-time voluntary campaigner for the Tamil United Liberation Front, which later became the Tamil National Alliance (TNA).  In 2012, the applicant assisted in the TNA election campaign.  During the campaign the applicant was threatened by men in a white van who he believed worked for Pillayan (an opposing politician and former member of the LTTE).  As a result of these threats, the applicant departed Sri Lanka for Australia.

Authority decision

1. On 27 July 2017, the Authority affirmed the decision of the delegate.[1]

   [1] Court Book (CB) 180-197

Information before the Authority

1. As well as the material provided by the Secretary under s.473CB of the Migration Act 1958 (Cth) (Migration Act), the Authority received a submission from the applicant dated 21 December 2016 which it considered raised a new claim and which referred to a piece of country information that was not before the delegate. The Authority also obtained new country information on its own behalf.

2. To the extent the applicant’s submission contained legal argument concerning the delegate’s decision and other matters, the Authority did not consider it to be new information, and had regard to it at [4]-[5].

3. In considering the applicant’s reference to a May 2016 International Crisis Group report, the Authority found this was new information at [6]. As it predated the delegate’s decision, and no explanation was provided by the applicant as to why it could not have been provided to the delegate, the Authority was not satisfied at [7] that the information could not have been provided before the delegate’s decision was made.[2]  The Authority was also not satisfied the report was credible personal information.[3]

   [2] see s.473DD(b)(i) of the Migration Act

   [3] see s.473DD(b)(ii) of the Migration Act

4. The Authority considered a statement in the submission at [6] and [8], that the applicant has status as “a UNHCR mandated refugee”, raised a new claim and was new information.  The Authority noted the applicant had not explained why the claim had not been raised before the delegate and that previously, the applicant had stated he had not had any contact with the UNHCR.  On this basis, the Authority was not satisfied at [8] that the claim was credible personal information or that it could not have been provided to the delegate.

5. The Authority obtained a copy of a Department of Foreign Affairs and Trade (DFAT) country report on Sri Lanka dated 24 January 2017.  As the report updated a DFAT report dated 18 December 2015 relied on by the delegate, the Authority was satisfied at [9] that there were exceptional circumstances to justify it being considered.

Factual findings

1. On consideration of the applicant’s claims for protection, the Authority:

   a)accepted the applicant was a Tamil male from the named location in the Eastern Province at [13];

   b)accepted at [26] and [27] that the applicant’s brother had been involved with the LTTE as claimed, had been killed in 1993 and that the applicant was arrested and detained for three days in 1993 in connection with his brother’s profile;

   c)accepted at [28] the applicant’s uncle was in the LTTE and that the applicant’s wife, mother-in-law and siblings-in-law were arrested and detained in relation to the uncle’s LTTE profile;

   d)was willing to accept at [30] that the applicant was forced to provide food to the LTTE in 2007 or 2008 and was detained once at around that time, but subsequently released as there was no proof he had been giving supplies to the LTTE;

   e)did not accept at [29]-[30] further claims made by the applicant at his interview with the delegate that he was required to attend the CID camp on more than one occasion in 2007/2008, was physically harmed and was warned at this time about writing letters to the government about the SLA occupation of the family home;

   f)did not accept at [31] the applicant’s home, or his mother-in-law’s home, had been occupied by the Sri Lankan authorities as claimed;

   g)was willing to accept at [34] the applicant had some low-level involvement in Sri Lankan politics as a part-time volunteer;

   h)did not accept at [32]-[34] the applicant came to the adverse attention of men associated with Pillayan, or any other person or group, as a result of his political activities;

   i)accepted at [40] that if the applicant returned to Sri Lanka, he would be a failed asylum seeker and identified by the Sri Lankan authorities as someone who departed Sri Lanka illegally;

   j)accepted at [44] the applicant may be found to have committed an offence under Sri Lankan laws for the manner of his departure;

   k)was not satisfied at [45] that the applicant had identification, criminal or security concerns that would be of concern to State Intelligence or the CID on his return to Sri Lanka;

   l)found the applicant would be charged and fined for his illegal departure, but then released. It did not accept at [46] that the applicant would face any chance of imprisonment above a brief period of detention on arrival.

Refugee criterion findings

1. On the basis of its factual findings, and country information in relation to Sri Lanka, the Authority:

   a)was not satisfied at [36] that the applicant would come to the adverse attention of Sri Lankan authorities, or be at risk of harm, as a result of his brother’s or his uncle’s prior LTTE involvement;

   b)considered the chance of the applicant coming to the adverse attention of Sri Lankan authorities for providing goods to the LTTE 10 years ago to be remote. As a result, the Authority was not satisfied the applicant faced a real chance of serious harm on that basis at [37];

   c)concluded at [39] that the applicant was not a person that faced a real chance of serious harm by virtue of his Tamil ethnicity or on account of any actual or imputed LTTE connections (including family connections);

   d)was not satisfied at [41] that the applicant would be harmed on return to Sri Lanka for being a Tamil asylum seeker;

   e)was not satisfied at [41] that the applicant faced a real chance of serious harm for being a failed asylum seeker from Australia;

   f)was not satisfied at [46] that the applicant faced a real chance of serious harm by reason of any brief time spent in detention, or the imposition of any fine, surety or guarantee, on his return to Sri Lanka;

   g)was satisfied at [47] that the Sri Lankan laws concerning illegal departures were laws of general application that were not applied in a discriminatory manner or selectively enforced;

   h)was not satisfied at [47] that the applicant faced a real chance of serious harm from Sri Lankan authorities for his illegal departure, travel to Australia or for any other reason.

2. The applicant was found not to satisfy s.36(2)(a) of the Migration Act at [49].

Complementary protection findings

1. Having found that the applicant did not meet the refugee criterion under the Migration Act, the Authority considered whether the applicant satisfied the Migration Act’s complementary protection provisions.

2. On the basis of its previous findings that the applicant was not at real risk of serious harm by reason of any actual or imputed LTTE links, the Authority was not satisfied at [52] that there was a real risk he would suffer significant harm for these reasons, if returned to Sri Lanka.

3. Considering the applicant’s circumstances and country information, the Authority was not satisfied:

   a)any treatment the applicant would receive as a Tamil from the east would amount to significant harm, at [53];

   b)the applicant would face significant harm during any investigation process or detention at the airport, at [54];

   c)the applicant faced a real risk of significant harm during any brief time spent in detention, at [55];

   d)that being subjected to questioning, required to pay a fine or provide a surety amounted to significant harm, at [56];

   e)the cumulative effect of any treatment the applicant might face for his illegal departure would amount to significant harm, at [56].

4. The applicant was found at [58] not to satisfy s.36(2)(aa) of the Migration Act.

The present proceedings

1. These proceedings began with a show cause application filed on 14 August 2017.  The applicant continues to rely upon that application.  There are three particularised grounds in it:

   Ground 1

   IAA made a jurisdictional error by misapplying the well-founded fear test.

   Particulars

   IAA did not deduce, based on the Applicant's connection through his relatives with the LTTE and deduce that Applicant's family is supportive of the LTTE.

   Supporters of LTTE will be imputed with LTTE profile.

   Persons imputed with LTTE profile are arrested by the authorities.

   Ground 2

   IAA did not take into account a relevant issue.

   Particulars

   Persons imputed with LTTE profile are in danger in Sri Lanka.

   Ground 3

   IAA did not take into account a relevant issue.

   Particulars

   Sri Lankan authorities have recommenced arrests of former LTTE suspects and their relatives. 

2. This application is supported by a short affidavit filed with it, that I received.  I also have before me as evidence the book of relevant documents filed on 14 December 2017. 

3. This matter was initially docketed to Judge Barnes, but at a callover on 14 March 2019, she transferred the matter to me. 

4. Only the Minister filed pre-hearing written submissions, in accordance with procedural orders made by a registrar. 

5. I invited oral submissions from the applicant.  At one level, those submissions took issue with the merits of the Authority’s analysis.  Those merits are beyond the scope of this proceeding. 

6. The applicant did assert that various matters were not considered by the Authority.  In particular, the applicant asserts that the Authority did not consider his link to the LTTE.  He noted that his brother had been killed and he had been tortured.  He also referred to the use or acquisition of property by the Sri Lankan government and the LTTE.  The applicant emphasised the genuineness of his fear of harm.  He forcefully reiterated those claims in his submissions in reply. 

7. The Minister submits that all of the applicant’s claims were considered by the Authority.  The Authority accepted, at [36], that the applicant had been detained and mistreated due to his brother’s involvement with the LTTE.  The Authority also accepted that the applicant’s brother had been killed.  However, the Authority took into account that the harm suffered by the applicant was approximately 23 years ago. 

8. The Authority accepted that the applicant had provided food rations to the LTTE.  He had been detained, but was released, and the Authority did not consider he was still at risk.  Neither did the Authority consider that the applicant’s low-level involvement with the TNA put him at real risk of serious harm. 

9. As I put to the applicant, it is not apparent to me that anything was overlooked by the Authority. As I also put to the applicant, it is apparent to me that the Authority followed the requirements of the Migration Act in conducting its review.

10. I am not persuaded by the applicant’s oral submissions that there is any jurisdictional error committed by the Authority. 

11. The applicant’s grounds of review in his application are dealt with in the Minister’s submissions.  I agree with and adopt those submissions. 

12. The first ground claims the Authority misapplied the well-founded fear test.  The particulars assert that the applicant will be suspected of being LTTE supporter because of his family.  This is no more than a disagreement with [36] of the Authority’s reasons, where the Authority explains why it does not consider the applicant’s fears on this basis to be well-founded.

13. The second ground claims that the Authority did not take into account a relevant issue, being that people imputed with a LTTE profile are in danger in Sri Lanka.  However the Authority accepted at [39] that some persons suspected of LTTE links may be in need of protection, but found that the applicant was not such a person based on his profile.

14. The third ground claims that the Authority did not take into account a relevant issue, being that Sri Lankan authorities have recommended arrest of former LTTE suspects and their relatives.  Again, the Authority accepted at [39] that some persons with LTTE links may be in need of protection, but found that the applicant was not such a person based on his profile.

15. All of these grounds essentially seek merits review, contrary to Minister for Immigration v Wu Shan Liang.[4]  Accordingly, all the grounds must fail.

    [4] (1996) 185 CLR 259 at 272

16. I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision, and the application must be dismissed.  I will so order.

17. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,500.  That is less than the scale amount under the Federal Circuit Court Rules 2001 (Cth). The applicant did not wish to be heard on costs.

18. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 19 August 2020