DSF17 v Minister for Immigration

[2018] FCCA 2242

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2242

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – where Applicant seeks merits review – findings of the Authority open to it on the evidence before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 46A, 473DD

Applicant: DSF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1796 of 2017

Judgment of: Judge Hartnett

Hearing date: 20 July 2018

Delivered at: Melbourne

Delivered on: 16 August 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Maloney

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1796 of 2017

DSF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. By application filed on 17 August 2017, the Applicant seeks judicial review of a decision of the Second Respondent (‘the Authority’) dated 31 July 2017, wherein the Authority affirmed the decision of a delegate of the First Respondent (‘the delegate’) dated 1 February 2017 not to grant the Applicant a Safe Haven Enterprise Visa (‘SHEV’).

2. The Applicant contends that the Authority’s decision is affected by jurisdictional error. The Applicant proceeds on a single ground of judicial review, which is as follows:-

   “1. The decision of the IAA is affected by jurisdictional error.

   Particulars

   a. In relation to his illegal departure, he will be a returning asylum seeker and the decision maker has erred when he concludes that there is not a real chance that any element in the process would involve serious harm for the purposes of s.36(2)(a).

   b. In considering whether there is a real risk of the applicant experiencing treatment involving "significant harm" for the purposes of s.36(2)(aa), the decision maker should have considered country information which states that a number of cruel and inhumane acts can occur even for a brief period in remand and it also should have considered what if he cannot be brought before a magistrate and what if he was not granted bail or able to get a surety or what if there were concerns about his identity and would that have lead to cruel treatment, punishment or degrading treatment.”

3. The First Respondent seeks dismissal of the application with costs.

Background

1. The Applicant is a citizen of Sri Lanka. He was born in Nanaddan on 1 June 1986. He is a Hindu man of Tamil ethnicity. He arrived in Australia on 25 April 2013 as an unauthorised maritime arrival as defined by s.5AA of the Migration Act 1958 (Cth) (‘the Act’). The Minister exercised his power under s.46A(2) of the Act to allow the Applicant to make a valid application for the SHEV.

2. The Applicant’s SHEV application was relevantly accompanied by a statement dated 29 July 2016.  The Applicant’s claims for protection were as follows:-

   a)he is a Tamil from Sri Lanka; 

   b)he has been imputed with the political opinion of supporting the Liberation Tigers of Tamil Eelam (‘LTTE’);

   c)he lived in refugee camps in India from 1990 until 1995, and 2006 until 2013;

   d)whilst studying in 2003, the LTTE approached him other students to join the LTTE.  He refused, but was forced to do work in the propaganda wing. This forced him to leave school and his accommodation as he did not want to be involved in LTTE activities.  He returned to his village and started making new friends.  He came to know that some of these boys were LTTE members or sympathisers; 

   e)in 2006 a small army camp in his home area was fired upon by the LTTE and a few soldiers were killed and injured.  The Sri Lankan Army (‘SLA’) took revenge, attacked his village and arrested young males.  The Applicant was arrested.  He had his hands tied behind his back and was beaten with sticks.  He was badly treated and feared being killed.  After a few hours he was released on the condition that he did not leave the village and that he report every day to the SLA camp.  A few days later, Criminal Investigation Department (‘CID’) officers visited his house and told his uncle that they suspected the Applicant was involved with the LTTE.  They searched the house and his uncle gave them a photo of the Applicant.  His uncle told him that he did not want him staying there any more so, with his uncle’s assistance, the Applicant fled Sri Lanka to India in October 2006.  He found out later that two of his friends were arrested. 

3. The Applicant’s statement referred to, and was supported by, country information, particularly in support of his claim that despite the cessation of hostilities in Sri Lanka and the election of a new government, the persecution of Tamils, former LTTE members, and returnees/failed asylum seekers continued. 

4. The Applicant remained in India until 2013 and did not return to Sri Lanka. He lived as a refugee in India where he married and had two children. The Applicant claimed that the authorities in Sri Lanka continued to search for him, once shortly after his departure, and again in 2009. 

5. The Applicant attended a Temporary Protection Visa Interview with the delegate on 18 January 2017 and added the following details:-

   a)in 2006 he was facing compulsory recruitment by the LTTE.  He was unable to complete his education and had to move to a nearby village.  In that village there was a clash between the LTTE and the SLA and he was arrested by the SLA on suspicion that he was involved.  He was beaten and kicked.  The local parish priest was able to secure his release on the condition that he report and sign at the SLA camp daily;

   b)about a week after his release the CID came to his house looking for him.  A number of his friends were arrested too.  He was not at home when they came to his house.  His uncle gave them both the photograph and details of the Applicant.  He had signed in five times since his release.  His uncle advised him to leave Sri Lanka as it was unsafe;

   c)he would still have an issue in Sri Lanka as some of the friends that were arrested at the same time as him have disappeared.  He believes that the same thing would happen to him;

   d)he believes that his name is on a wanted list and he will be arrested if he returns; 

   e)in 2009, after the war, the authorities were rounding up people and his uncle informed him that they searched for him again;  they have not looked for him since; 

   f)he is aware of a number of other people, like him, who returned to Sri Lanka and were arrested;

   g)some of the people who were members of the LTTE and were sent to rehabilitation have been brainwashed and given poisonous injections; 

   h)if he returns to Sri Lanka he will be taken into custody and imprisoned for ten years; and

   i)because he has lived outside of Sri Lanka for so long, and left the country illegally, the Sri Lankan authorities will consider him a threat to security. The moment he lands at the airport, he will be questioned and his history discovered.

6. At his interview with the delegate on 18 January 2017, the Applicant provided further country information and a copy of his Sri Lankan driver’s licence. The country information was again directed, principally, to the ongoing threats faced by people in the position of the Applicant, notwithstanding improvements in Sri Lanka.

7. The delegate accepted that the Applicant was Tamil; may have had an imputed political opinion based on his race, age and area of residency, and would be perceived to be a failed asylum seeker. However, the delegate was not satisfied that there was a real chance or risk that the Applicant would be subject to serious or significant harm on his return to Sri Lanka for any of his claimed reasons.

The Authority

1. On 6 February 2017, the matter was referred to the Authority.  The Applicant’s representative subsequently provided a submission to the Authority dated 16 February 2017.  That submission contained legal argument responsive to issues in the delegate’s decision which the Authority determined could be regarded as argument, rather than “information”.  The Authority also noted that the submissions reasserted claims that were made to the delegate and were part of the referred material.

2. The Authority, as noted in paragraph 5 of its Decision and Reasons (‘the Decision Record) found that the Applicant’s representative’s submission of 16 February 2017 contained country information that was not before the delegate and was “new information” for the purposes of s.473DD of the Act. The Authority noted that information pre-dated the delegate’s decision, and no reason was provided as to why the information could not have been provided to the delegate before the decision was made, or why the information should be considered credible personal information. The Authority was not satisfied in respect of that information that s.473DD(b) of the Act was met.

3. In paragraph 6 of the Decision Record the Authority noted that it did have regard, however, to some “new information” in making its decision, and:-

   “… specifically new country information regarding Tamils and Sri Lankan returnees (information not specifically about the applicant but about a class of persons of which the applicant is a member), from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017.”

4. The Authority noted that the delegate had relied on the earlier 18 December 2015 country report of the Department of Foreign Affairs and Trade’s (‘DFAT’). The Authority was:-

   “…satisfied that there are exceptional circumstances to justify considering this new information.”

5. As to the Applicant’s claims for protection, the  Authority accepted that the Applicant had been forcibly recruited by the LTTE in 2003 and arrested, detained and assaulted in 2006, and that a week after his detention, the CID searched his house and left with a recent photograph of him. 

6. The Authority referred to country information indicating significant improvements for Tamils in Sri Lanka and concluded that it was not satisfied that the Applicant’s past experiences of harm gave rise to an ongoing chance of serious harm.  It did not accept that the authorities had come looking for the Applicant as recently as 2009, and noted that even on the Applicant’s account there was no evidence of any interest in him since that time.

7. Accordingly, the Authority concluded that there was no real chance of the Applicant being harmed by the authorities or others on the basis of being an imputed LTTE supporter, or a young Tamil male from a former LTTE controlled area.

8. As to the Applicant’s claims to fear harm as a returnee failed asylum seeker, the Authority did not accept, as set out in paragraph 15 of the Decision Record, that the Applicant, with his limited involvement with the LTTE, being that of being forcibly recruited once in 2003, and then held by the SLA in 2006 for a few hours and questioned, would be placed on any watch list or be of any interest to the Sri Lankan authorities.

9. The Authority was not satisfied that the Applicant would be on any “stop list”.  The Authority noted the Applicant left Sri Lanka in 2006.  The Authority was not satisfied that the Applicant’s activities in India would raise any concern on return to Sri Lanka.  The Authority noted that the Applicant did not engage in any controversial activity whilst he was in India.  He married a woman and had two children.

10. The Authority set out in paragraph 18 of the Decision Record the following:-

    “I am satisfied that the applicant has no identity concerns, or criminal or security records that would raise the concern of the authorities.  Given that I have found that the applicant has have [sic] no relevant profile of actual or suspected links to the LTTE, or any record of pro LTTE political activity, or for any other reason, I am satisfied that he will not be at risk of harm during, or as a consequence of, this routine investigation. Nor would his profile raise suspicion about him, in my view, that would result in his being followed up and subjected to serious harm later.”

11. The Authority took into account that information in the 24 January 2017 DFAT report noted that after processing at the airport persons who departed illegally were charged under the Sri Lanka’s Immigrants and Emigrants Act, fingerprinted and photographed, and then transported to the closest Magistrates Court at the first available opportunity once investigations were completed, at which point responsibility shifted to the Court or prison services.

12. The Authority noted in paragraph 20 of the Decision Record that based on the DFAT advice of 24 January 2017, the Authority found that “if the Applicant were to plead not guilty, he would either be immediately granted bail on personal surety, or he might have to wait to be collected by a family member if required to have a family member act as guarantor”. 

13. The Authority considered that the Court would not require a family member to act as guarantor in the circumstances of the Applicant and would instead grant bail on the Applicant’s own recognisance. The Authority noted DFAT’s advice that if bail was granted there were rarely any conditions.

14. On the basis of DFAT’s advice, the Authority considered that the Applicant may be charged, convicted and fined, and briefly detained as an illegal returnee pursuant to the Sri Lankan Immigrants and Emigrants Act, but that this would be a function of the operation of a law of general application and would not in any event result in any serious harm to the Applicant.

15. The Authority likewise considered, having regard to its foregoing reasons, that the Applicant did not face a real risk of significant harm.

Consideration

1. The single ground of judicial review cannot succeed in either of its particulars.  The Applicant is in essence seeking impermissible merits review given the carefully reasoned decision of the Authority, the circumstances of the Applicant, and the factual context. 

2. The Authority carefully considered those claims put before it by the Applicant. It was for the Authority to determine the selection of country information and what weight the Authority would give to that country information. Its selection of the most recent DFAT information on Sri Lanka was unremarkable and appropriate. As to the country information contained in the Applicant’s submission to the Authority dated 16 February 2017, it was open to the Authority to conclude, as it did, that this was new information, and that the threshold for the consideration of new information set by s.473DD of the Act had not been met.

3. As to the remainder of the information in the Applicant’s submission of 16 February 2017, it can reasonably be inferred that the Authority took this into consideration.

4. The findings of the Authority in respect of the ground of application were open to the Authority on the evidence before it. There was nothing illogical or unreasonable about those findings. No jurisdictional error attends the decision of the Authority.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 16 August 2018