DSC17 v Minister for Immigration

[2018] FCCA 728

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 728

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider new information – whether the Authority misconstrued the applicant’s claims and made unreasonable findings – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD, 473DE, 476

Applicant: DSC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2599 of 2017

Judgment of: Judge Street

Hearing date: 26 March 2018

Date of Last Submission: 26 March 2018

Delivered at: Sydney

Delivered on: 26 March 2018

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Mr K Eskerie
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2599 of 2017

DSC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 31 July 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 19 October 2012 as an unauthorised maritime arrival. The applicant was found to be of Tamil ethnicity and departed Sri Lanka illegally and applied for a protection visa on 7 July 2016.

3. The applicant claimed to fear harm by reason of his older brother being a former Liberation Tigers of Tamil Eelam (“LTTE”) fighter who is currently allegedly held in prison after his arrest during the civil war in 2009. The applicant claimed that he was forcibly recruited into the LTTE in 2007 and underwent training for three days. The applicant claimed that after informing that his brother was already an LTTE fighter he was sent to a restaurant that was frequented by LTTE. The restaurant was destroyed in 2008 and the applicant escaped and reunited with his family. The applicant alleged in 2009 that authorities arrested LTTE members near where he was staying with his grandmother, and that he fled from his family home and went into hiding about a kilometre away from the house.

4. The applicant alleged that in 2012 the authorities visited his home in search of the applicant and beat his father, and the applicant decided to leave Sri Lanka. The applicant alleged that there is an army camp 500 metres from his family’s home and that officials regularly walk past the applicant’s home. The applicant alleged that in January 2016 authorities visited the applicant’s home to inquire about his whereabouts and beat his father. On 9 December 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

The Authority’s decision

1. On 14 December 2016, the Authority wrote to the applicant explaining that the application for a protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

Information before the Authority

1. The applicant provided a statement in response to the letter dated 3 January 2017, which took issue with the findings of the delegate and to that extent, was found not to be new information and the Authority had regard to the same. The Authority identified that the applicant advanced a new claim that was not before the delegate, alluding to events in Sri Lanka in December 2016.

2. The Authority’s reasons identified considerations of both limbs of the requirements of s 473DD of the Act. The Authority’s reasons also referred to country information referred to by the Authority. The Authority found there was no information to explain why the country information was not made available to the Minister, or to establish that it was credible personal information, and the Authority was not satisfied there were exceptional circumstances to justify considering the country information. The Authority referred to the United Nations High Commissioner for Refugee (“UNHCR”) guidelines and found that information was not new information and had regard to the same. The Authority referred to having obtained new information, being a DFAT report, which the Authority found fell within s 473DE(3)(a) of the Act and had regard to the same.

3. The Authority then addressed in detail the new information in relation to the events in December 2016 involving the applicant’s younger brother being taken for interrogation. The Authority referred to the applicant not being specific about the dates of the claimed events, but was satisfied that the incidents may have occurred after the delegate’s decision. The Authority, however, considered the plausibility of the claimed events and was not satisfied that this was credible personal information that if known may have affected the consideration of the applicant’s claims.

4. The Authority referred in that regard to the applicant’s younger brother’s age and the claim in relation to the younger brother being detained and questioned about events and the involvement of the applicant, although the younger brother was only six when the war ended in 2009, and the applicant departed illegally in 2012, at which time his younger brother was nine. It was in those circumstances the Authority found it was not plausible that the Terrorism Investigation Division (“TID”) would seek information from the applicant’s younger brother, noting the very young age at the time of the relevant events. The Authority found the claimed events to be implausible and was not satisfied that this is credible personal information which, if known, may have affected the consideration of the applicant’s claims. The Authority was not satisfied there were exceptional circumstances to justify considering the new information and did not have regard to the same.

The Applicant’s claims

1. The Authority summarised the applicant’s claims and that the applicant was a Tamil from the Kilinochchi District in the Northern Province of Sri Lanka. The Authority referred to the applicant’s claim concerning his brother still being detained. The Authority expressed significant doubts that the applicant’s brother continued to be held in detention as claimed. The Authority referred to the Safe Haven Enterprise visa application stating the brother was being held in a particular prison as a former LTTE fighter. The Authority found this was not consistent with country information, which advises that that prison is no longer used to hold ex-LTTE combatants and is now used to rehabilitate drug addicts.

2. The Authority referred to the applicant being asked at the Safe Haven Enterprise visa interview about the whereabouts of his brother, and the delegate raising with the applicant that in his written statement he referred to his brother being held in prison, and the applicant’s statement that the family did not know if he was dead or alive, and that the applicant then said that the authorities have said he is in a certain place but they have not shown him to the family and that although they say he is alive, the family has not been permitted to see him. The Authority referred to country information and accepted as plausible that the applicant may not know his brother’s whereabouts, but did not accept the applicant’s claim that his brother remains in detention in Sri Lanka because of his role with the LTTE.

3. The Authority accepted the applicant’s claim in relation to being forcibly taken by the LTTE in 2007 and being able to escape from the LTTE when the restaurant was attacked and that he re-joined his family. The Authority also accepted that the applicant was separated from his family after fleeing from a shelling attack in April 2009. The Authority also accepted that in 2009 the applicant was taken to a particular camp and accepted that the applicant became ill in the camp.

4. The Authority referred to the applicant stating in his Safe Haven Enterprise visa application that he was in the hospital for three days, whereas in his interview he stated he may have been a patient for two weeks. The Authority did not consider this inconsistency in itself to be significant, but found the applicant’s account of his claimed escape from the hospital to be inherently implausible. The Authority found the applicant’s claim of escape over a wall to be inconsistent with his account that there was no army security presence to prevent him from simply walking out.

5. The Authority also referred to the difficulty with the applicant’s contention in relation to guarding patients, and took into account country information. The Authority found the applicant’s contention that he was left without guards to be implausible, and that led the Authority to doubt the veracity of the applicant’s claim. The Authority, taking into account the country information and the matters referred to, did not accept the applicant escaped from the hospital in June 2009, and therefore effectively escaped from detention as an internally displaced persons (“IDP”). The Authority found the applicant’s claim to be implausible and found the applicant had fabricated this account to enhance his protection claims.

6. The Authority found that sometime around 2009/2010, the applicant was released from custody as an IDP and went to stay initially with his grandmother and then re-joined his family. The Authority did not accept the applicant escaped from hospital and from IDP custody. The Authority did not accept the authorities were interested in the applicant and came to the family home in search of him at that time. The Authority found the applicant returned to live with his family in 2010, and accepted that the presence of the army camp only 500 metres from his home may have been a concern, but did not accept that from 2010 until his departure that he lived in hiding because he was wanted by the authorities.

7. The Authority did not accept that the applicant went into hiding, either in a paddy field or a forest, from 2010 to 2012. The Authority found implausible the applicant’s contention that he remained in hiding for an extended period of time and referred again to the proximity of the family home to the army camp, being only 500 metres away. The Authority found the applicant’s claims to be hiding in a forest implausible and was not satisfied with his response that he had a tent for shelter and on a few occasions he came to the family home at night.

8. The Authority found the applicant’s ability to travel from Vavuniya in either 2009 to 2010 indicated that he was not a concern to security authorities whose role was to monitor movement to and from the highly militarised Vanni area. The Authority also noted in 2012 that the applicant was able to travel south from Kilinochchi to the port of Chilaw where he boarded a boat to come to Australia and there was no indication that he encountered any difficulty passing security checkpoints on this journey.

9. The Authority found the applicant’s claim that in September 2016 the authorities saw his father talking on a telephone and because they thought it was the applicant they beat the father to be implausible and did not accept the father was beaten in 2016. The Authority found the applicant was not of adverse attention to the authorities.

Assessment of refugee convention

1. The Authority referred to country information and was not satisfied that if any of the authorities had been concerned about the applicant and perceived him to be a LTTE member, either because of his links to his brother or his own activities, that he would have been taken to an IDP camp, rather than being detained in rehabilitation. The Authority expressly referred to taking into account the UNHCR guidelines and country information.

2. The Authority did not accept the applicant was or would be on return, perceived to be an LTTE member, nor that there is a real chance that he would be harmed on return for his past activities or links to his LTTE fighter brother. The Authority referred to the applicant’s concerns as a Tamil and took into account country information as to the significant change in country circumstances since the end of the war and was not satisfied there was any real chance the applicant would experience harm on return to Sri Lanka for reason of his Tamil ethnicity.

3. The Authority accepted that the applicant departed Sri Lanka illegally and had sought asylum. The Authority accepted the applicant may be questioned by police at the airport and charged under the Immigrants and Emigrants Act 1949 (Sri Lanka). The Authority found the applicant may be detained and questioned at the airport for 24 hours and fined for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) and may face a short period of time in prison. The Authority found the period of detention would only be brief and did not consider the brief period in detention would constitute the necessary level of threat to the applicant’s life or liberty, or significant physical harassment or ill treatment under s 5J(5) of the Act, or otherwise amount to serious harm to the applicant.

4. The Authority did not consider any lengthy questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine to constitute serious harm under s 5J(5) of the Act. The Authority found the Immigrants and Emigrants Act 1949 (Sri Lanka) is a law that is not discriminatory on its terms and found the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act 1949 (Sri Lanka) would be the result of a law of general application and does not amount to persecution for the purpose of s 5H(1) and s 5J(1) of the Act.

5. The Authority, having considered the applicant’s claims cumulatively on the basis of the applicant’s race, being from a former LTTE controlled area, his time in the LTTE training camp or working in the LTTE owned restaurant, because of his links to his LTTE brother, having been detained in an IDP camp and his illegal departure and for being a failed asylum seeker, was not satisfied there is a real chance that the applicant will experience harm in the foreseeable future in Sri Lanka. The Authority found the applicant failed to meet the criteria for the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

Assessment of complementary protection criteria

1. 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, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. On 16 November 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant this was a final hearing to determine whether the decision of the Authority was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that in summary the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if it was satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for a further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

The applicant’s submissions from the bar table

1. From the bar table, the applicant posed a rhetorical question as how does anyone know that he will not be killed if returned to Sri Lanka. The applicant maintained that he still did not know his brother’s whereabouts, and asserted that recently his family had been beaten, that he was in hiding and that there were adverse findings, that it was impossible for him to provide documents about being in hiding. The applicant maintained that he had no guarantee, if returned to Sri Lanka, of his life, and that there are still problems in Sri Lanka and that his family home was only 500 metres away from an army camp.

2. The applicant maintained that he did not know how he could provide documents and took issue with the adverse findings made by the Authority. The Authority in its reasons, as summarised above, expressly took into account the applicant’s claim concerning his older brother and accepted as plausible that the applicant may not know his whereabouts, but did not accept that he was still being detained as a result of his role with the LTTE. That was a finding in respect of which the Authority took into account country information and provided reasons in support of the same that were logical, rational and open to the Authority on the material before the Authority.

3. In relation to the applicant’s complaint that he did not have records to support his hiding and his claims, the Authority provided logical and rational reasons, as summarised above, in relation to the applicant’s claims. Those reasons, as summarised above, were open to the Authority and cannot be said to be unreasonable. Insofar as the applicant referred to his family home being some 500 metres from the army camp, that was a matter referred to by the Authority on three occasions in its reasoning, and the adverse reasons by the Authority in relation to the applicant’s claims were open for the reasons given by the Authority.

4. I accept the submission of the first respondent that in substance, the applicant’s submissions from the bar table were an invitation to this Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.

5. The grounds in the application are as follows:

   1. The failure on the part of the Second Respondent in failing to take into consideration new information including relevant credible country information which were not provided to the DIBP earlier, is a jurisdictional error. The finding that the Second respondent “is not satisfied that any exceptional circumstances exist that justify the IAA considering the new information” is arbitrary and a misuse of authority and thus falls under jurisdictional error.

   2. The Second Respondent misconstrued the facts in relation to the new information given as to the applicant’s brother’s detention at the police custody and as to his second brother’s recent arrest by the police for questioning regarding the applicant’s whereabouts. The reasons given by the Second Respondent for not accepting the facts are unreasonable, unethical and arbitrary. The Second respondent made a jurisdictional error by misconstruing and disregarding the relevant facts.

   3. The Second Respondent’s decision as to the detention of the applicant’s brother at the prison is vague, unclear and establish the lack of knowledge as to the detention of Tamils in Sri Lanka and the powers conferred upon the authorities under the Prevention of Terrorism Act. The Second Respondent failed to take into consideration relevant materials provided to the DIBP and the IAA before and after the interview, and made a jurisdictional error.

   4. The Second Respondent’s in Paragraph 16 of the Decision and Reasons concluded “I accept as plausible that the applicant may not know his brother’s whereabouts (after he was taken away by the authorities), but I do not accept the applicant’s claim that his brother remains in detention in Sri Lanka because of his role with the LTTE.” This finding is baseless, unreasonable, lacks any evidence or proof of the Respondent’s contention and thus should be treated as jurisdictional error.

   5. The Second Respondents finding in relation to the applicant’s escape from the hospital is unreasonable and establish any valid reasons. The Second respondent in Paragraph 22 of the Decision and reasons states: I find his claim of escape over a wall to be inconsistent with his account that there was no army security presence to prevent him simply walking out.” The Second Respondent has no knowledge of the circumstances surrounding the Tamil persecution at the IDP centres in Sri Lanka and falsely concluded that army security presence should have been available at the hospital where the applicant was admitted. Here the Second respondent decision is based on speculation, imagination and misconstruction of the real facts and made jurisdictional errors.

Ground 1

1. In relation to ground 1, which refers to the country information that was found by the Authority to be new information and that there were not exceptional circumstances to justify considering the same, the Authority expressly referred to both limbs of s 473DD of the Act. Further, the Authority identified specifically that country information. The Authority did not apply an erroneously narrow meaning of exceptional circumstances.

2. The adverse finding by the Authority in relation to s 473DD of the Act, in respect of that country information was open to the Authority for the reasons given by the Authority and cannot be said to be unreasonable, and was not arbitrary or a misuse of the Authority’s power. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, there is no identified misunderstanding of the applicant’s claim concerning his younger brother’s detention and the Authority provided logical and rational reasons in relation to the adverse finding in respect of both limbs of s 473DD of the Act in finding that the same failed to meet the requirements of exceptional circumstances. That was a decision that was open to the Authority for the reasons given by the Authority and cannot be said to be unreasonable. There was no misconstruction of the relevant provision and the Authority did not disregard any relevant facts in determining whether or not to have regard to that new information. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. Ground 3, in substance, takes issue with the adverse finding by the Authority in relation to the new information in respect of the younger brother’s claim. The Authority did not just take into account the vague or unclear nature of the applicant’s claims, but also took into account the age of the younger brother in determining the adverse finding. For the reasons given by the Authority, as summarised above, those adverse findings in relation to consideration of both limbs of s 473DD of the Act were open to the Authority and cannot be said to be unreasonable. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, the applicant took issue with the adverse finding that the applicant’s elder brother is not still in detention because of his role in the LTTE. The Authority referred to country information in that regard in relation to the particular prison in which it was alleged the elder brother was held. The Authority provided logical and rational reasons as summarised above in relation to its adverse finding in respect of whether the applicant’s elder brother remained in detention because of his role in the LTTE. That adverse finding was open to the Authority and was supported by the country information referred to by the Authority. The adverse finding cannot be said to be unreasonable. The proposition that the adverse finding lacked any evidentiary basis ignores the country information that the Authority took into account in that regard. Further, it was a matter for the Authority to determine whether to accept the applicant’s evidence. The rejection of the applicant’s evidence does not give rise to any no evidence error. The adverse credibility finding was open to the Authority. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, the applicant took issue with the adverse finding in relation to the applicant’s ability to escape from the hospital. The Authority took into account country information in that regard in respect of the presence of guards in hospitals and the Authority’s reasons in respect of rejecting the applicant’s claim about escape were open to the Authority for the reasons given by the Authority, as summarised above. Those reasons cannot be said to be unreasonable or illogical or irrational.

2. There was no speculation by the Authority in the determination of the applicant’s claim in this regard, nor any application of what could be described as imagination. Nor is there apparent in the Authority’s reasons any misconstruction of the applicant’s claim in relation to that adverse finding. Ground 5 is in substance an invitation to this Court to engage in impermissible merits review. Ground 5 fails to make out any jurisdictional error.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 May 2018