DTA16 v Minister for Immigration

[2019] FCCA 472

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTA16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 472

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – protection visa – whether Authority failed to consider the Applicant’s claims – whether there is a real chance of serious or significant harm – no jurisdictional error – application dismissed.

Cases cited:

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant: DTA16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG  2673 of 2016

Judgment of: Judge Hartnett

Hearing date: 18 December 2018

Delivered at: Melbourne

Delivered on: 1 March 2019

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ravi James Lawyers

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG  2673 of 2016

DTA16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. On 9 November 2016, the Second Respondent (‘the Authority’) affirmed a decision of a delegate of the First Respondent (‘the Minister’) to refuse to grant the Applicant a protection visa. The Authority was satisfied that the Applicant was a credible witness but was not satisfied that he faced a real chance of suffering serious or significant harm in the reasonably foreseeable future as claimed.

2. The Applicant proceeded on an amended application filed 27 November 2018.The grounds are as follows:-

   “1. The decision of the IAA is affected by jurisdictional error, in that the IAA failed to consider relevant considerations, and/or in the alternative relevant materials.

   Particulars

   a. The Authority failed to consider the effect on the risk of harm to the applicant of the combination of:

   (1) the “Checks [which] involve interviewing the returnee, contacting their home area’s police, neighbours and family and checking criminal and court records”, and

   (2) the fact that he would be returning to Sri Lanka with precisely the same (or indeed now extended) history of overseas travel over a period of years which the Authority had found led to him being detained and interrogated in 2012 on suspicion of involvement with the LTTE.

   b. Further, or in the alternative to particular (a), the Authority failed to consider whether, although it may be determined after investigation on his return to Sri Lanka that he is not of interest to the authorities, nevertheless during that investigation he may suffer extended  questioning and detention, torture or assault or other serious harm.

   2. The Second Respondent (“the Authority”) fell into jurisdictional error in that it was unreasonable or made findings without logically probative evidence or which lacked an evident and intelligible justification.

   Particulars

   (a)    Further or in the alternative to the particulars to Ground 1 above, the Authority was unreasonable, in not considering the risk to the Applicant from the fact that he would return to checks made of the police, as a person who was not only a returned and failed asylum seeker, but one who has a history of travel and remaining abroad, a history precisely of the kind that, as the Authority had found, had led him to be detained and questioned for 10 days in 2012 on suspicion of involvement with the LTTE.

   (b)   Further or in the alternative to particular (a) of this Ground, the Authority was unreasonable in concluding that there was no real chance of him suffering serious or significant harm on return.”

3. The First Respondent submitted no jurisdictional error attends the decision of the Authority and that accordingly the application should be dismissed.

4. The Court had before it the evidence as contained in the Court Book filed 4 April 2017 and the submissions filed by each of the Applicant and the First Respondent.

The Applicant’s Claims

1. The Applicant’s claims were accurately summarised in paragraph four of the Decision and Reasons (of the Authority) dated 9 November 2016 (‘the Decision Record’). Those claims were:-

   ·“He is a Tamil Hindu from Nilaveli, Trincomalee District, Eastern Province, Sri Lanka.

   ·Around 1986 his brother-in-law was shot by the Sri Lankan Army (SLA), however the applicant does not believe he was involved in the Liberation Tigers of Tamil Eelam (LTTE).

   ·From 1983 to 1991 he was displaced several times due to fighting in his area. He resided in different places in Sri Lanka including Colombo, Batticaloa and Jaffna. From 1991 to 1999 he resided in Trincomalee district.

   ·From 1999 to 2001 he travelled to Singapore on a work permit due to ongoing violence in his home area. While there he travelled once to Malaysia to visit his sister. He returned to Sri Lanka when his visa expired in 2001 and resided in Trincomalee.

   ·From November 2007 to January 2008 he travelled to Saudi Arabia for work and because there was violence in his village. There was a SLA camp in his village and Tamil men were being taken and killed by SLA officers. In January 2008 he returned to Sri Lanka as he was not able to extend his three month visa.

   ·From January 2008 to March 2010 he resided in Trincomalee. The local SLA killed some of his friends on suspicion that they were in the LTTE and fearful for his own safety, he went to work in Qatar. He could not afford the fee to extend his visa beyond 10 months so he returned to Sri Lanka in December 2010.

   ·He remained in Trincomalee from December 2010 until he departed Sri Lanka in July 2012.

   ·On 12 January 2012 he was arrested whilst travelling to work in Trincomalee and taken to a Police station. He was interrogated about the countries he had travelled to and why he had travelled there. He was asked about his connections to the LTTE and if he had been involved in LTTE training. He believes his time abroad had brought him to their attention. He felt threatened by the questioning but he was not physically beaten. He was held for ten days and given little food. He does not know why he was released after the ten days.

   ·He was concerned about his safety because there was a navy camp next door. Navy officers passed through his property regularly and were being killed. He was afraid he could be taken for interrogation and harmed at any time. This was impacted by his brother-in-law’s death, his protracted displacement and his experience of being regularly caught-up and questioned in round-ups during the war. Because of the navy presence he was afraid to leave his home.

   ·The Navy took his wife’s family’s onion farm and have not compensated the family. His wife now farms onions on someone else’s land.

   ·He believes the authorities are suspicious of him because he regularly moved in and out of Trincomalee as a result of his displacement and his overseas work. He fears he will be arrested upon his return because he departed Sri Lanka illegally and sought asylum in Australia. He fears he cannot afford the fine for this crime. He fears he will be treated worse than others in prison because he is Tamil.

   ·He has been removed from the household registration card at his wife’s’ family home, where he had most recently resided in Sri Lanka.”

The Authority

1. The Authority accepted the Applicant was a “credible witness and that he had provided a genuine reflection of his recollections. I accept the applicant’s claims in their entirety.” [1]

   [1] Decision Record, 7.

2. The Authority accepted the Applicant was both arrested and detained, prior to 2012, under suspicion of having links with the LTTE stemming from his Tamil ethnicity, and the fact he had intermittently resided in the Eastern Province between considerable periods abroad on numerous occasions. However, the Authority was not satisfied that the authorities retained “an interest in the applicant after his release in January 2012.” The Authority said, in that regard, in paragraphs 15 and 16 of the Decision Record, the following:-

   “15. The applicant stated that while it was the Police that had detained him, it was the Navy he feared the most. I accept the applicant felt particularly fearful and intimidated by the Naval presence in his immediate proximity and that fact that he believed people were being taken and harmed in the Navy camp next door. I accept that the Navy took his family’s land and that they would cross through his residential property when going to the camp. However, on the evidence the applicant was not personally threatened or harmed by them, or taken into their camp. I consider that had the applicant been of adverse interest to the Navy, this would have been demonstrated to him through some interaction – detention, questioning or otherwise. I am satisfied that the applicant was not a person of interest to the Navy and I am not satisfied he has since become of interest.

   16. The applicant’s wife still resides in his home village in Nilaveli, Trincomalee. He claims that after he left Sri Lanka, two villagers died on a later boat journey and that the Navy was questioning people about why they had left. Through this questioning the applicant’s wife divulged to them that he had left Sri Lanka on a boat and she did not know where he was. However, on the evidence, I am satisfied that neither his wife, nor any other members of his family were questioned any further about the applicant on that occasion, nor on any subsequent occasion. I accept that the authorities’ attention has been drawn to the applicant’s illegal departure. However, as there is no indication in the referred material or from the applicant subsequently, I am not satisfied that the authorities have sought to obtain any further information or shown any interest in the applicant’s overseas activities or residence.”

3. In considering whether the Applicant had a “well-founded fear of persecution” the Authority accepted that the Applicant held a subjective fear of the authorities in Sri Lanka. The Authority went on to observe however,  in paragraph 20 of the Decision Record the following:-

   “… since the end of the war (particularly in the four years that the applicant has been in Australia) the situation for Tamils in Sri Lanka including in the East, has changed considerably. The Sirisena government has also taken a more proactive approach to human rights and reconciliation than the previous government. This has been demonstrated in various ways including through the establishment of a reconciliation taskforce, the noticeable demilitarisation of the Northern and Eastern Provinces, the replacement of military governors with civilians governors in those areas, and a reduction in high security zones. The government has also actively recruited Tamils for the Police and Civil Defence Forces  and released some individuals held under the Prevention of Terrorism Act 1979 (PTA). DFAT reports that with the decrease of monitoring and harassment under the Sirisena government, the Tamil community feels more confident to refuse or question the motives of any monitoring activities that still occur.”

4. The Authority thereafter, on the basis of country information, identified many ways in which the situation for Tamils in Sir Lanka in the East had considerably improved.

5. Accordingly, the Authority was not satisfied that the Applicant would be of interest to Sri Lankan authorities on return:-

   “I have found that after 2012, the applicant was not of adverse interest to Police, Naval or other authorities on suspicion of LTTE membership or support, nor any other reason and I am not satisfied he would be of interest upon return. I am not satisfied that his profile is such that there is a real chance the applicant will be detained under the operation of the [Prevention of Terrorism Act 1979], or that he otherwise has a well-founded fear of persecution on the basis of any imputed LTTE support or links.”[2]

   [2] Decision Record, 25.

6. The Authority accepted that the Applicant would be identifiable on return as a failed asylum seeker who left Sri Lanka illegally. It accepted that he would be subject to “checks”, which “may involve interviewing the returnee, contacting their home area’s Police, neighbours and family and checking criminal and court records”.[3] The Authority had regard to recent information from the Department of Foreign Affairs and Trade (‘DFAT’), which indicated that returnees “are not subject to mistreatment while undergoing these checks”.[4] The Authority acknowledged reports of mistreatment, but noted that the subjects of these reports had “had actual or suspected ties to the LTTE”, and noted that “the applicant would not be returning with such a profile”.[5] Furthermore, the Authority noted that advice from DFAT indicated that “the risk of torture or mistreatment for the majority of returnees is low”.[6]

   [3] Decision Record, 27.

   [4] Ibid.

   [5] Decision Record, 28.

   [6] Ibid.

7. In conclusion, the Authority stated as follows:-

   “I have considered the risk of harm to the applicant, a Tamil male from Nilaveli, Trincomalee in the Eastern Province, whose brother-in-law and friends were killed by the army, whose siblings reside overseas and who himself has lived and worked abroad numerous times, each time returning to his home in former LTTE controlled territory and who was arrested and detained for 10 days in January 2012 on suspicion of LTTE activity. I have not accepted he was of adverse interest to Police, Naval or other authorities on account of suspected LTTE links or otherwise and I am not satisfied that he would be of interest upon return. While the Navy has occupied his family’s land I have not accepted this amounts to serious harm or that he would face a risk of such harm upon return. Even with these previous circumstances and that authorities would be aware that he departed illegally, sought asylum in Australia and spent considerable time here and previously in other countries, I am not satisfied that these circumstances cumulatively give rise to a well-founded fear of persecution.”[7]

   [7] Decision Record, 37.

Consideration

1. I agree with the submissions of the First Respondent that the Authority clearly considered the Applicant’s claims, and each factual element thereof (including to have been detained in 2012 on suspicion arising from inter alia his overseas travels). The Authority specifically and expressly stated that, despite the Applicant’s experiences in the past, it was not satisfied that the Applicant faced a real chance of suffering serious or significant harm from Sri Lankan authorities in the future.

2. I agree with the submissions of the First Respondent that this argument is misconceived and that the Authority identified many reasons for not being satisfied that the Applicant would be of adverse interest to Sri Lankan authorities in the future. As detailed by the First Respondent in submissions, they included:-

   (a)first, at the time that the Applicant was detained, the Sri Lankan authorities feared a LTTE resurgence, and hence took an interest in Tamils from LTTE areas who had lived a considerable period of times overseas. By implication, the Authority was not satisfied that the authorities were still so concerned many years after the war;

   (b)secondly, despite detaining the Applicant in 2012 on suspicion of possible involvement with the LTTE, the Sri Lankan authorities had then released him. That suggested that the Sri Lankan authorities did not, following investigation, have any concern that the Applicant was in fact involved with the LTTE;

   (c)thirdly, the Sri Lankan authorities had subsequently shown no interest in the Applicant, including recently after learning from his wife then he was overseas;

   (d)fourthly, more generally, the situation for Tamils had improved considerably since the end of the war.

3. The Authority’s reasoning does not exhibit that claimed by the Applicant, namely the “extreme illogicality” which must be shown to justify the Court finding jurisdictional error with the Authority’s assessment of the merits of the Applicant’s claim. [8]

   [8] ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, 47; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

4. The Applicant submitted further that the Authority failed to consider whether the Applicant might be harmed during the process of “checks” in the future, even if the Sri Lankan authorities ultimately concluded that he was not of interest. In the oral submissions made, that argument extended to a failure to have considered the matters cumulatively.

5. This ground cannot succeed. The Authority clearly considered what might happen to the Applicant on return to Sri Lanka. The Authority made findings open to it on the evidence in that regard. Relevantly, contained in the Decision Record is the following:-

   “26. I accept that should the applicant be returned to Sri Lanka, he would be identifiable to authorities at the airport as a failed asylum seeker who departed illegally.

   27. Entry procedures upon arrival back in Sri Lanka may take several hours as involuntary returnees are processed by Immigration, Police and Intelligence Services to check identity and to see if the returnee has any outstanding criminal matters. Checks may involve interviewing the returnee, contacting their home area’s Police, neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated in accordance with these standard procedures, regardless of their ethnicity and religion. DFAT assesses that they are not subject to mistreatment while undergoing these checks.

   28. Of the thousands of Tamil asylum seekers who have returned to Sri Lanka since 2009 from western countries including Australia and others with significant Tamil diaspora, there have been reports of mistreatment and torture. However, the subject of these reports have had actual or suspected ties to the LTTE and I have not accepted the applicant would be returning with such a profile. Additionally, DFAT advises the risk of torture or mistreatment for the majority of returnees is low.

   29. I am satisfied that the applicant is not perceived to be an LTTE member or to have an LTTE supporter profile. DFAT advises that re-entry procedures are applied without discrimination on the basis of ethnicity and I find this indicative that the authorities do not impute failed Tamil asylum seekers as being LTTE members or supporters. There is no indication before me that the applicant has engaged in any activities with the Tamil diaspora in Australia that would elevate his profile or bring him to the adverse attention of authorities. There is also no indication that he has openly criticised the Sri Lankan government, or openly shared information which would embarrass authorities and country information does not support that failed asylum seekers are imputed as having committed a crime, apart from illegally departing.

   30. I accept that the applicant will be identified as having departing illegally and may be charged under the Immigration and Emigration Act 1988 (I&E Act). From DFAT’s reporting on previous cases, I accept that following the normal entry procedures described above, the applicant may: be arrested by Police at the airport and held at a nearby prison while waiting to face the Magistrate, after which time, he may be transferred to the custody of the courts or prison services.

   31. Information from DFAT does not indicate that detention is selectively applied or that returnees are processed in any discriminatory manner. DFAT advises that as with other returnees, the risk of torture of mistreatment among those suspected of committing an offence under the I&E Act is low. I find that while being questioned and processed at the airport, and even if held over the weekend while waiting to face a magistrate, he will face a brief period of detention but that the conditions will not be such as to rise to the level of a threat to his life or liberty, or to significant physical harassment or ill treatment or otherwise amount to serious harm for the applicant.”

1. And thereafter:-

   “37. I have considered the risk of harm to the applicant, a Tamil male from Nilaveli, Trincomalee in the Eastern Province, whose brother-in-law and friends were killed by the army, whose siblings reside overseas and who himself has lived and worked abroad numerous times, each time returning to his home in former LTTE controlled territory and who was arrested and detained for 10 days in January 2012 on suspicion of LTTE activity. I have not accepted he was of adverse interest to Police, Naval or any other authorities on account of suspected LTTE links or otherwise and I am not satisfied that he would be of interest upon return. While the Navy has occupied his family’s land I have not accepted this amounts to serious harm or that he would face a risk of such harm upon return. Even with these previous circumstances and that authorities would be aware that he departed illegally, sought asylum in Australia and spent considerable time here and previously in other countries, I am not satisfied that these circumstances cumulatively give rise to a well-founded fear of persecution.

   …

   47. I have considered the applicant’s circumstances in their totality. I have considered the risk of harm to the applicant, a Tamil male from the East, who was arrested and detained for 10 days in January 2012 on suspicion of LTTE activity, whose three siblings are overseas and whose brother-in-law and friends were killed by the Army. I have also had regard to the Naval occupation and trespass and his numerous overseas trips and return residences in former LTTE territory. In addition I note he has departed illegally and would be returning as a failed asylum seeker. Even when considered cumulatively, I do not accept that there are 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 that he will suffer significant harm.”

2. The Applicant quarrels with the merits of the Authority’s findings. The Authority made findings both individually and cumulatively.

3. The Application will be dismissed with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 1 March 2019