DTG16 v Minister for Immigration

[2017] FCCA 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2018

Catchwords:
MIGRATION – Immigration Assessment Authority – protection visa – whether the decision was illogical or unreasonable – whether the Authority failed to consider an integer of the applicant’s claims – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: DTG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3473 of 2016

Judgment of: Judge Street

Hearing date: 23 August 2017

Date of Last Submission: 23 August 2017

Delivered at: Sydney

Delivered on: 23 August 2017

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Hodges Legal

Counsel for the Respondents: Mr H P T Bevan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3473 of 2016

DTG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 10 November 2016 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. The applicant was found to be a Tamil from the Eastern Province and arrived in Australia on 8 November 2012 as an authorised maritime arrival. The applicant lodged an application that was valid for a Safe Haven Enterprise visa on 3 March 2016.

Claims for protection

1. The applicant claimed to fear harm by reason of his imputed political opinion relating to a period of campaigning for the Tamil National Alliance (TNA) and a political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) imputed to him by certain anti-TNA paramilitary and/or political groupings, as well as the Sri Lankan authorities.

2. The applicant also claims to fear harm as being a member of a social group of failed asylum seekers who have departed Sri Lanka illegally, on the basis of his ethnicity, and also by reason of being a member of a particular social group of jewellers in Sri Lanka.

The delegate’s decision

1. On 24 August 2016, the delegate found the applicant failed to meet the criteria under the Act for the grant of a protection visa. The delegate was not satisfied the applicant was threatened by the Sri Lankan Army (SLA) or any members or supporters of the anti-TNA groups following the Eastern Provincial Council (EPC) elections in 2012. The delegate was not satisfied that the applicant’s wife sought help from the Jathik Helna Urumary (JHU) or international organisations or that the applicant went into hiding or that he sought help from a particular person. The delegate found the applicant failed to meet the criteria under the Act for the grant of a protection visa.

The Authority’s decision

1. By letter dated 26 August 2016, the Authority wrote to the applicant identifying the matter had been referred to the Authority for review. The Authority’s letter explained there were only limited circumstances in which the Authority could consider new information. The letter attached a fact sheet and Practice Direction providing the applicant with an opportunity to put on new information and to put on submissions.

Information before the Authority

1. On 18 September 2016, submissions were provided on behalf of the applicant to the Authority. In the Authority’s decision, dated 10 November 2016, the Authority referred to the applicant’s background in respect of the visa application. The Authority noted it had had regard to the material referred under s.473CB of the Act. The Authority identified the applicant’s submissions and that they did not introduce new information and the Authority had accordingly considered the submissions made on behalf of the applicant.

Claims and background

1. The Authority identified the applicant’s claims and background. Relevantly, the Authority referred to the fact that on 8 September 2012 there was a provincial election in the applicant’s hometown. The applicant was on vacation and he openly supported the Tamil National Alliance (TNA) by putting up banners, distributing leaflets, and contributing in meetings. The applicant supported a particular former member of the Sri Lankan National Parliament for particular districts, albeit he was not successful in the election. The applicant believes he was well known to members and supporters of the anti-TNA group, because he was very involved in the election. The applicant believes that during and after the election many TNA supporters were arrested by the Sri Lankan Army and put in detention.

2. The applicant claims that during the lead up to the election he faced no particular difficulties. The applicant alleges three days after the election members of the SLA and anti-TNA groups from the United People’s Freedom Alliance (UPFA) and the Janatha Vimukthi Peramuna (JVP) came to his home armed with guns, threatened his wife, and asked about his whereabouts. The applicant alleges that they said they would find him and would harm and kill him because he supported the TNA and was a Tamil. The applicant alleged that he had already travelled back to Colombo that day.

3. The applicant alleged two weeks later a second incident occurred when his wife was walking home from local shops a group of men stopped her and said they were going to kill the applicant when they found him. The applicant was fearful for his wife and himself and was hiding in Colombo with his workplace owner’s house and stopped working. The applicant alleged that his wife went to a particular district to seek help, but that the relevant body did not support Tamils and did not offer any help. The applicant alleges the next day two members of the SLA went to his house to search for him and that they were armed and very aggressive with his wife and that, after this, he was continuously in hiding for nearly a month.

Protection claims assessment

Tamil race / origin in eastern provinces

1. The Authority set out the relevant law. The Authority identified the applicant’s claims and evidence, in particular being of the Tamil race and ethnicity and his place of origin, and referred to country information in that regard. The Authority found that there is no basis for the conclusion that the applicant would be imputed with a pro-LTTE political opinion now or in the reasonably-foreseeable future either by reference to his activities with the TNA or his ethnicity or his place of origin.. The Authority found there is no real chance of the applicant being targeted by the authorities or to be imputed with any pro-LTTE political opinion either now or in the reasonably-foreseeable future were he to return to Sri Lankan for reasons to do with his Tamil ethnicity or his origins.

Imputed supporter of the TNA and the LTTE

1. The Authority then referred to the applicant’s political opinion as a supporter of the TNA and a supporter of the LTTE. The Authority referred to the applicant’s claimed role as a supporter of the TNA who volunteered his assistance during the election campaign of 2012. The Authority noted in the applicant’s written claims and evidence at the interview he said nothing happened to him during the campaign period and the adverse attention he received only occurred after the elections were held in September 2012 and the campaign had finished.

2. The Authority referred to material provided by the applicant in support of his claims. The Authority found on the applicant’s own evidence related to activities prior to 8 September 2012 provincial election in his hometown back in the Eastern Province. The Authority found those activities took the form of assisting the TNA by putting up banners, distributing leaflets and arranging and contributing to meetings. The Authority considered at the very highest these activities can only be described as low-level public manifestations of support for the TNA. The Authority did not accept the level of the applicant’s involvement in arranging TNA political meetings raised his profile beyond that of a low-level supporter.

3. The Authority was prepared to accept on balance the applicant did provide limited support he claims to have provided to the TNA prior to 8 September 2012 elections and that this was the first and only time the applicant ever engaged in such activities. The Authority, on the basis of the applicant’s overall history and low-level profile, did not accept as plausible that the applicant’s wife faced ongoing visits from persons searching for the applicant after his departure.

4. The Authority was prepared to accept that the applicant experienced some measure of targeting on account of his TNA involvement immediately subsequent to the September 2012 elections. The Authority, however, found the applicant’s involvement with the TNA, on his own evidence, was indicative of the fact that he was a low-level volunteer campaign worker rather than any senior figure with the TNA.

5. The Authority made reference to consideration of whether the applicant faces a real chance in the foreseeable future of harm from the Sri Lankan authorities or from non-state agents on account of his involvement as a TNA campaign workers in one election in 2012 and were the applicant to resume any such activity upon return to Sri Lanka. The Authority made reference to country information indicating historically anti-TNA paramilitary groups such as the Karuna Group engaged in paramilitary activities and criminality with a high degree of impunity during the civil war and in the years immediately following the war ending in 2009 during the presidency of Mahinda Rajapaska.

6. The Authority then identified that more recent country information indicates that, on 8 January 2015, Maithripala Sirisena defeated President Mahinda Rajapaska in the president election, winning with a historically-high voter turnout. The Authority made reference to the Tamil vote being significant in relation to achieving of that victory.

7. The Authority made reference to the Parliamentary election of 17 August 2015 reinforcing the outcomes of the presidential election, amounted in a national united government of major parties and the TNA now formally leads the opposition. The Authority made reference to the TNA currently having 16 members of the Parliament and holding the majority of seats in the Northern Provincial Council. The Authority noted that, since the August 2015 election, various members of the Karuna Group have been questioned and arrested. The Authority found that there was no information to support the Karuna Group or any of its anti-TNA affiliates or anti-TNA political groupings operating as organised paramilitary groups or acting with impunity.

8. The Authority found, in light of the applicant’s low-level connection with the TNA and in the absence of any country information indicating instances of recent political motivated violence against persons with such a low-level TNA connection, that the Authority considered the prospect of any future such adverse attention from any non-state agents to be remote, even if the applicant were to provide assistance to the TNA upon return.

9. The Authority made reference to the applicant’s description of threats and intimidations having been received from unidentified and possibly non-state agents, as well as from the Sri Lankan authorities with members of the SLA acting in conjunction with anti-TNA political groups threatening him and his wife in his absence. The Authority made reference to the country information indicating that while there are reports of TNA politicians and supporters being assaulted, threatened and intimidated by rival political groups during the 2012 election campaign, the Authority noted that none of the material indicates any evidence of any state involvement.

10. The Authority made reference to having to assess the applicant’s claims on the basis of the contemporary political and security circumstances set out in the available country information. The Authority found no evidence that Sri Lankan security apparatus was involved in instances of electoral related violence, or intimidation. The Authority noted the country information did not indicate any real chance of serious harm facing the applicant from non-state agents either now, or in the reasonably foreseeable future.

11. The Authority did not accept that the applicant would be imputed with a pro-LTTE opinion on the basis of his low-level support for the TNA in the past, or if he maintains such activities in the future. The Authority found that the applicant does not face a real chance of serious harm from the Sri Lankan authorities on his account either now, or in the reasonably foreseeable future on account of his particular level of involvement with the TNA. The Authority found the applicant will not be attributed with a pro-LTTE political profile for any of the reasons advanced by the applicant.

12. The Authority found that, to the extent the applicant had previously received threats and intimidation by anti-TNA elements where he was campaigning in the Eastern Province in September 2012 in a specific context around elections and in a specific location, the Authority did not consider that the applicant would face any such threats, or harms were he to again reside in the particular area, or in the foreseeable future noting that was near where the applicant resided before and noting that any real chance the applicant may face prosecution must relate to all areas of Sri Lanka within s.5J(1)(c).

Perceived wealth

1. The Authority found there was no risk of the applicant facing serious harm on the basis that he may be perceived as a wealthy jeweller returning to Sri Lanka either now, or in the reasonably foreseeable future.

Illegal departure / failed asylum seeker

1. The Authority made reference to the applicant being a failed asylum seeker who departed Sri Lanka illegally. The Authority found that the immigration/emigration laws are laws of general application that apply to all Sri Lankans equally and that the laws are not discriminatory on their terms and that they will not be applied in a discriminatory manner, or enforced selectively.

2. The Authority was not satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would constitute persecution for the purpose of the Act. The Authority having considered the applicant’s claims individually and cumulatively was not satisfied the applicant has a well-founded fear of persecution for a reason, or combination of reasons, of his race, religion, nationality, membership of a particular social group, and/or political opinion now or in the reasonably foreseeable future if he returns to Sri Lanka.

3. The Authority found the applicant failed to meet the definition of refugee in s.5H(1) and that the applicant failed to meet the criteria under s.36(2)(a) of the Act. The Authority was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence that the applicant returned from Australia 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.

Proceedings before this Court

The grounds of the application

1. The grounds of the application are as follows:

   Ground 1

   The IAA's findings were unreasonable or illogical.

   PARTICULARS

   (i) The IAA made the following finding at [29]: “On the basis of my assessment of the applicant's overall history and low-level profile, I do not accept as plausible that his wife faced ongoing visits from person [sic] searching for the applicant after his departure.”

   (ii) However, on the other hand, the IAA stated that it was prepared to accept at [30] “... that the applicant experienced some measure of targeting on account of his TNA involvement immediately subsequent to the September 2.012 elections.”

   (iii) Furthermore, the IAA inconsistently declared at [34]: “…I consider the prospect of any future such adverse attention from any non-state agents to be remote, even if the applicant were to provide assistance to the TNA upon return."

   (iv) It is unreasonable or illogical for the IAA to accept that the applicant was targeted immediately after the 2012 elections, even in view of the IAA’s finding that the applicant's connection with the TNA was low level ([31], [34]), but not accept that the targeting was ongoing or that the targeting would continue if the applicant were to again provide assistance to the TNA if he were to return to Sri Lanka.

   v) If the IAA was willing to accept that the applicant was targeted after the 2012 election then it must be willing to accept, at the very least, that there is a real chance that applicant would again be targeted if he were to provide similar assistance to the TNA in the future.

   Ground Two

   The IAA failed to consider an integer of the applicant's claim or failed to consider evidence from the applicant.

   PARTICULARS

   (i) The IAA accepted at [30] “... that the applicant experienced some measure of targeting on account of his TNA involvement immediately subsequent to the September 2012 elections.”

   (ii) The IAA failed to consider the applicant's claim and evidence that three days after the 2012 election, members of the SLA and anti-TNA groups came to his home armed with guns, threatened his wife, asked for his whereabouts, and stated that they would harm him and kill him ([7]).

   (iii) The applicant's evidence was that several similar incidents occurred ([7]).

   (iv) The IAA did not indicate whether it considered these relatively serious incidents as constituting 'some measure of targeting' which the applicant experienced, as the IAA did not refer to these specific incidents at all, which are critical to the applicant's claims.

   (v) The IAA thus failed to take account of the possibility that those incidents occurred:

   Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

   [66] Again, if an applicant relies on the possibility that a particular event occurred as supporting his or her claim to a well-founded fear of persecution, a failure by the RRT to make a finding as to that possibility might constitute non-compliance with s 430(1)(c) of the Migration Act

   [67] Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

Consideration

Ground 1

1. In relation to Ground 1, Mr Tambimuttu took the Court to the reasons of the Authority as well as to the reasons of the delegate and the applicant’s summary of incidents to which he was exposed. Mr Tambimuttu argued that there was not a clear finding made by the Authority in relation to the particular incidents that the Authority had summarised in relation to the applicant’s claims. It is apparent on a fair reading of the Authority’s decision that it correctly identified the applicant’s claims and made the findings dispositive of each of those claims.

1. Mr Tambimuttu sought to argue that the findings were illogical, irrational, or unreasonable. The Tribunal provided cogent reasons in support of the adverse findings made by the Authority, including the taking into account of country information. Those adverse findings were open and cannot be said to lack an evident and intelligible justification. I do not accept that there are any inconsistencies in the findings of the Tribunal as advanced by Mr Tambimuttu, nor do I accept the submission that the findings by the Authority in relation to the applicant’s involvement with the TNA and adverse finding in relation to ongoing visits in respect of his wife and ultimate findings in relation to whether the applicant had any prospect of future adverse attention were irrational or unreasonable.

2. The Authority explained the low-level involvement of the applicant in relation to its reasons in finding that there was not a real chance that the applicant would be targeted if he were to provide similar assistance to the TNA in the future. In substance, the submissions on behalf of the applicant invite the Court to engage in impermissible merits review.

3. No jurisdictional error as alleged in Ground 1 is made out.

Ground 2

1. In relation to Ground 2, there was no integer of the applicant’s claims that was not properly addressed and the Authority made findings dispositive of the applicant’s claims. It was not necessary for the Authority to identify each of the incidents that the applicant alleged, given that the Authority’s reasons explained the acceptance of the applicant’s involvement and the level of activity which the applicant had in the elections, and the Authority clearly took into account the potential involvement of the applicant in similar activities in the future. There was no failure by the Authority to consider the claims or evidence by the applicant. There was no integer of the applicant’s claims that not subsumed in the adverse findings made. The Authority properly identified the relevant law and on a fair reading properly applied the relevant tests.

2. No jurisdictional error as alleged in Ground 2 is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 September 2017