DRO17 v Minister for Immigration

[2018] FCCA 3547

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3547

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority erred in failing to properly apply the real chance test – jurisdictional error established – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5J, 5H, 36

Cases cited:

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1

Applicant: DRO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2580 of 2017

Judgment of: Judge Smith

Hearing date: 15 November 2018

Date of Last Submission: 15 November 2018

Delivered at: Sydney

Delivered on: 15 November 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges, Stephen Hodges Solicitor

Counsel for the First Respondent: Mr G Johnson

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent dated 19 July 2017.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 24 November 2016 according to law.

3. The first respondent pay the applicant’s costs fixed in the amount of $7,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2580 of 2017

DRO17

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 the decision of the Immigration Assessment Authority made on 19 July 2017.  The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia on 13 October 2012. On 14 May 2016 he lodged a protection visa application.  The claims made by him are summarised at [11] of the Authority’s reasons:

   ...

   • He is a male Hindu Tamil from the Batticaloa District in the Eastern Province of Sri Lanka.

   • In 1994, his father was rounded up by the Sri Lankan army with other men in the village and taken to the army camp where he was questioned and seriously beaten. His father was returned to the village the next day and died shortly afterwards from his injuries.

   • In 2000, the applicant was selected to join a home run for destitute boys, Arun Shanthi Nivas, operating in Colombo. He moved to Colombo and lived at the home from May 2000 until December 2008. He attended schooling in Colombo during this period.

   • The man who ran the home was a Tamil man connected with the LTTE[1].

   • In 2004, the applicant came into contact with his cousin’s husband (KY) who was a high-ranking member of the LTTE. From 2004 until 2006, the applicant received explosives and weapons which he held for KY at the home. KY visited on many occasions to access the explosives and weapons.

   • In about 2007, the applicant’s brother was forcibly recruited by the LTTE but escaped during the fighting. His brother was assisted by members of Karuna to escape to Qatar where he continues to reside.

   • In November 2008, KY went missing.

   • In December 2008, the applicant returned to his home village. Shortly after his arrival he was questioned by CID[2] officers at his home. He attended at the CID office the next day where he was detained for four hours, questioned and mistreated. His body was checked and he was questioned about the scarring on his hands and back and whether he had been in contact with KY. He was released and required to sign in at the police station once a month.

   • In May 2009, he started studying at the local school for his ‘A’ levels. He continued to be observed by the CID who asked question of his friends about him.

   •In September 2011 the same men from the CID came to his home and told his mother he must attend at the CID office again. He hid and later that night travelled to Colombo where he remained hiding at a friend’s house.

   • His friend introduced him to an agent who assisted him to obtain a passport and organised his departure from Sri Lanka.

   • On 28 July 2012, the applicant left Sri Lanka on a passport in his name and travelled to Singapore on a tourist visa.

   • After his arrival in Australia, his mother has been harassed by CID officers when she goes to the market about the applicant’s whereabouts and when he will return to Sri Lanka. In January 2016, the CID visited his mother’s home and enquired about him.

   [1] Liberation Tigers of Tamil Eelam.

   [2] Criminal Investigation Department.

3. On 24 November 2016 the delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was referred to the Authority for review.

4. On 10 December 2016 the applicant’s agents made a submission in support of the applicant’s claims on the review and on 19 July 2017 the Authority made its decision to affirm the decision of the delegate.

5. Given the issues in these proceedings, it suffices to set out the findings by adopting [7]-[8] of the Minister’s outline of written submissions:

   7. The Authority accepted the applicant’s claim that he had between 2004 and 2006 accepted from KY explosives and weapons, and it accepted that KY held a prominent position in the LTTE: [20]-[21]; CB 182. It did not however accept in light of the applicant’s age and extent of his involvement in KY’s activities that the applicant was a prominent participant in KY’s activities: [21]; CB 182. Neither was the Authority satisfied on the evidence it had that the home for destitute boys the applicant lived in was run by the LTTE: [22]; CB 182-183. The Authority considered the applicant’s claims to have been interrogated by the CID but considered that the fact he was released after only four hours indicated that the CID did not consider the applicant to be an LTTE supporter: [27]; CB 183. The Authority doubted that in 2011 men from the CID came to his home and enquired about him as it was about three years after his first interrogation and the applicant had been regularly signing in to the police and had continued to live and study in the area. It therefore rejected that the men returned the following night to the family home. The Authority also rejected that the applicant had been required by authorities to continue signing in with police until September 2011 when he left his village for Colombo: [32]; CB 184.

   8. The Authority accepted that the applicant had issued to him a passport in his own name prior to his departure from Sri Lanka in July 2012 and that he departed Sri Lanka legally: [34]; CB 185. The Authority did not consider that the applicant had a profile with the Sri Lankan authorities or was a person of interest to them: [40]; CB 186. It considered that the mistreatment and harassment he had suffered was consistent with the treatment experienced by Tamils more generally.

6. In his application for judicial review, the first ground of which is not pressed, the applicant states in three separate grounds, essentially, the same thing; namely, that the Authority fell into error in finding, on the one hand in reasoning from its finding, that the applicant did not have a profile with the Sri Lankan authorities of actual or imputed support of the LTTE or was considered to be a person of interest to them, to the conclusion that there was no real chance that the applicant would be targeted by Sri Lankan authorities, including the CID, on return to Sri Lanka.  That reasoning is best found in [40] of the Authority’s reasons:

   40. For reasons already stated, I do not consider the applicant has a profile with the Sri Lankan authorities for actual or imputed support of the LTTE, or is considered to be a person of interest to them. While the applicant experienced a degree of harassment and surveillance by the CID following his release from questioning in 2008, this was consistent with the treatment of Tamils by the Sri Lanka forces more generally and did not indicate the applicant was being targeted, notwithstanding his familial connection to KY who went missing in November 2008, his profile as a young Tamil male from the East with scarring or his activities at the boy’s home between 2004-2006. Given the applicant’s profile and the country information about the change in Sri Lanka’s political and security landscape and the treatment of Tamils, I am not satisfied that the applicant would be targeted by the Sri Lankan authorities, including the CID, on return to Sri Lanka.

7. Jurisdictional error may be expressed in many ways and given that the single focus of each of the grounds is on the reasoning which may be identified in [40] set out above, I propose not to deal separately with each of the grounds in the application but to deal with it overall.

8. The Minister’s submission in response to this argument is essentially two-fold.  First, that the applicant did not make any claim himself that the mere fact that he had (and the Authority accepted that the applicant had), hidden weapons for the LTTE when he was a school child was the basis for any fear of persecution in the past, rather, he said that the fear of persecution was framed on the basis of the applicant’s connection to KY and, as such, that claim was dealt with.  Secondly, he argues that the findings made by the Authority at [21]-[27] concerning the applicant’s involvement with KY and the subsequent interest of the authorities in him were carefully framed so as to support the ultimate conclusion that the applicant would not attract the attention of the authorities by reason of his past activities. 

9. In order to understand why I reject those arguments it will be necessary to examine in a little detail the findings and the reasoning process of the Authority.  First, however, it may be noted that it is well established that a decision-maker such as the Authority may fall into jurisdictional error if it fails to consider a claim made by the applicant or one which arises on the material before the Authority or from the facts that are established before it: see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1.

10. The argument that the applicant did not make the claim, therefore, expressly based upon what he had done to support KY’s activities, and thus, the LTTE’s activities, is not necessarily an answer to the issue for resolution.  Further, I would note that the claim made by the applicant may be stated at a general level to have included a claim that he would be imputed with a political opinion, being one in support of the LTTE, an organisation whose focus was to bring down the government during a civil war.  Thus, the fact that he had been associated with a member of that organisation would have supported that overall claim.  So too, however, would the factual claim made by him that he had not only been connected to a member of the LTTE by familial links, but he had in fact undertaken activities directly supporting the military activities of that organisation, namely, hiding weapons for the organisation. 

11. The next principle that needs to be stated is that in assessing whether the criteria for the grant of a protection visa are satisfied, and in particular, for present purposes sub-s.36(2)(a) of the Migration Act 1958 (Cth), the Authority had to ask itself, because of the definition of “refugee” in s.5H, whether there was a real chance that the applicant would face serious harm upon return to Sri Lanka. The words “real chance” derive in the context of refugee law from the decision of Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, and has been well understood and exposed in the reasoning of many decisions since then.

12. At a high level, it requires no less than a reasonable speculation about what might occur in the reasonably foreseeable future on the hypothesis that a visa applicant is returned to his or her country of nationality.  In addressing that test it is accepted, and clearly logical, that what has occurred in the past is relevant to determining what might occur in the future.  However, it is not necessarily decisive of that question.  Whether it is decisive or not depends upon the facts. 

13. I return then to the analysis of the Authority’s reasoning. The first passage upon which the Minister placed some emphasis was [21]. In that paragraph the Authority accepted that the applicant was given custody of explosives and weapons by KY from 2004 until 2006, and that KY had visited him many times during the period to access the cache. It also found that KY held a position of some prominence within the LTTE. It then found:

    … Noting that the applicant was aged 14 -16 years at the time and that, on his evidence, participated only to the extent he held the bag of weapons and explosives for KY, I accept the applicant was not a prominent participant in KY’s activities or an otherwise active supporter of LTTE activities.

14. The Minister placed emphasis on this finding as a careful note by the Authority of the particular features of the applicant’s claims that supported its later conclusion that the applicant had no profile with the authorities.  Whether that is so depends, of course, upon the reasons stated by the Authority.  Nevertheless, for reasons which I will come to, I am not satisfied that even if that were the case, that that answers the issue that arises from [40] of the Authority’s reasons.

15. The next step in the Authority’s reasons was the finding that KY went missing in November 2008.  It found that the applicant had no further encounters with KY after 2006 and did not provide him with any other assistance.  Again, that supports the Minister’s argument about the careful findings about the particular features of the applicant’s involvement with KY.  The Authority noted at [23] that during the time the applicant was in Colombo he also did not experience any adverse encounters with the Sri Lankan authorities, including the CID, in respect of his association with KY or the Boys’ Home.

16. The next step in the chronology is found at [24] when, shortly after the disappearance of KY, the applicant returned to his home district in the northeast of Sri Lanka.  The Authority accepted the applicant’s claim that two men came to his home shortly after his arrival and asked him what he had been doing in Colombo and then asked him to attend the CID office the next day.  The Authority found that it was plausible that the applicant’s return may have triggered interest and some suspicion by the local authorities.

17. In [25], the Authority noted the applicant’s evidence that he attended the CID office the next day and was taken into an office and was interrogated by four men who carried guns, spoke in Tamil and were not dressed in uniform. He said that they had checked his arms and sighting scars accused him of fighting for the LTTE.  They also questioned him about KY and whether he had contact with him in Colombo.  He said that over the course of four hours he was seriously mistreated, including being beaten and made to drink toilet water.  He sustained injuries to his head and back.

18. In [26], the Authority accepted that the CID initially suspected the applicant of being linked with the LTTE, as either a fighter or through association with his cousin’s husband and KY while he was in Colombo. It appears to have accepted his claims as to what occurred in the CID office in their entirety.

19. Then, at [27], it accepted that the applicant had been released after four hours, was required to sign at the police station once every month and was subjected to monitoring of his movements as he had claimed.  However, important to the Authority was the fact that he was released after only four hours without arrest or detention.  I would infer that the Authority meant further detention.  The Authority reasoned that that release indicated that his connection to KY and visible scarring on his arms triggered their initial suspicions but at the conclusion of the interview the applicant was not considered to be an LTTE cadre or supporter. 

20. That finding turns out to be critical to the Authority’s conclusions.  The Authority then went on to make findings about the continued interest of the CID during the balance of the applicant’s time in Sri Lanka, up until 2012 when he left, stating at [32] that “[h]aving regard to the applicant’s profile with the authorities, and in the absence of further incidents involving the applicant with the local authorities…”, it was not satisfied that he was required to sign at the police office still at the time he had departed for Colombo in September 2011. 

21. The Authority found at [34] that, at the time of his departure from Sri Lanka, the applicant was not considered by the authorities to hold a profile as an LTTE cadre or supporter, or holding a profile who would otherwise attract their adverse interest. 

22. It found at [35], in respect to the claim concerning the applicant’s brother, that his association with his brother did not give rise to a real chance that he would be targeted by the authorities on return to Sri Lanka.  It is not entirely clear what the basis of that finding was, but I will leave that to one side. It may have been simply the fact that he had not in the past been questioned or experienced adverse encounters on that account, and reason from that absence from past events to the lack of future probability of that event.

23. At [36], the Authority repeats its conclusion that “[g]iven the applicant’s profile with the local CID and the passage of time, I am not satisfied they held an adverse interest in the applicant after he left Sri Lanka”. While it accepted that it was possible that the applicant’s mother experienced harassment and taunting at the market, it was not satisfied that that indicated a real chance the applicant would face serious harm on return.

24. At [37], the Authority turned to consider the potential harm that might face the applicant as a Tamil or Tamil man from the eastern province.  Referring to a DFAT[3] country information report dated 24 January 2017, the Authority stated that the country information did not support a conclusion that Tamils, including Tamil men from the eastern province, were being systematically targeted and subjected to serious harm because of their race and or area of origin.  That finding gains some prominence later in the Authority’s reasoning. In [38]-[39] the Authority then considered the issues of scarring and general discrimination, before turning to [40], which I have set out above.

    [3] Department of Foreign Affairs and Trade.

25. The issue with [40] is that the reasoning appears to proceed on this basis:  first, the applicant does not have a profile with the Sri Lankan authorities for actual or imputed support of the LTTE and is not considered to be a person of interest to them; and secondly, given that profile, or rather, perhaps lack of profile, and the “country information about the change in Sri Lanka’s political and security landscape and the treatment of Tamils,” then the applicant would not be targeted by the Sri Lankan authorities, including the CID, on return to Sri Lanka.

26. The second premise is the country information. There appears to be, I accept, the country information referred to at [37], namely country information concerning Tamils and Tamil men from the eastern province in general, rather than anybody who had been involved in the LTTE, such as the applicant had been. Although the statement of reasons in [40] is rather bare, given the earlier reference in [37], I am satisfied that that is what is intended by the reference to country information in [40].

1. That said, the country information only addresses the general situation and not the situation of a person with the applicant’s actual characteristics or a person who had engaged in the activities connected to the LTTE, such as the applicant. The question then was whether it was open, or whether there was any error, in the Authority’s reasoning from the mere fact that the applicant did not currently have a profile with the Sri Lankan authorities, to the conclusion that he would not be targeted by the Sri Lankan authorities. I infer that what is meant by “would not be targeted” is that there was no real chance that he would be targeted given that that is the test applied elsewhere in the Authority’s reasoning: see [44].

2. In my view, the answer is that, on a proper understanding of the test required for proper consideration of sub-s.36(2)(a), in particular, given the definition of “refugee” in s.5H and the definition of “well-founded fear of persecution” in s.5J, and the Authority’s explaining what a real chance of persecution is, that the Authority could not have engaged in the reasoning it did if it properly applied itself to that task. As I noted at the beginning of the consideration aspect of this judgment, it may well be in certain circumstances that past findings are conclusive, or may be conclusive, of the possibility of future harm, but that is not the case in every circumstance.

3. The difficulty underlining the Authority’s reasons may be expressed in a number of ways, but essentially it omitted considering the possibility that, unlike in the past, the authorities might actually come to know that the applicant had in fact supported the LTTE by storing weapons for a prominent leader of the LTTE.  That would, on the Authority’s own findings, have given the applicant a profile which could have led to further persecution of the applicant.  I say further, because there is no question that being detained for four hours, beaten and mistreated in the way in which the applicant was, amounted to persecution.

4. While I accept, as the Minister submitted, that the Authority was careful to note certain aspects of the features of the applicant’s involvement in KY’s activities, and thus in the LTTE’s activities, it did not draw any inferences from those features into the likelihood of harm in the future, rather it stopped short having found that the fact that he was released after four hours and not detained afterwards meant that he was not considered to have been involved in the LTTE or supported them, and assessed the future prospects of harm simply on the basis of what view the authorities had at that time.  There was, in other words, no reasonable speculation as to what might occur in the future, based upon the facts that were established on its own findings.

5. In my view, the best way of expressing that error is that the Authority failed properly to apply the real chance test in s.5J, and so constructively failed to exercise its jurisdiction.

Conclusion

1. For those reasons, the application will be successful. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       4 December 2018