DTV17 v Minister for Immigration
[2019] FCCA 814
•1 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTV17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 814 |
| Catchwords: MIGRATION – Application for judicial review – Immigration Assessment Authority – safe haven enterprise visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J(a), 5J(c), 473DC, 473DD(a), 477(1), 477(2) |
| Cases cited: SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 |
| Applicant: | DTV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1828 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 21 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Silva |
| Solicitor for the Applicant: | Anthony Nicholas Silva |
| Counsel for the First Respondent: | Mr Aleksov |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,150.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1828 of 2017
| DTV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This application seeks judicial review of a decision of the Immigration Assessment Authority (“IAA”) affirming a decision of the delegate not to grant a protection visa.
Procedural History
The Applicant departed Sri Lanka unlawfully in August 2012. He arrived in Australia on 12 September 2012 as an authorised maritime arrival. The Applicant applied for a Safe Haven Enterprise visa (“SHEV”) on 25 February 2016 which was refused by a delegate on 22 November 2016.
The matter was referred to the IAA for review on 25 November 2016.
The IAA obtained a country information report by the Department of Foreign Affairs and Trade (“DFAT”) published on 24 January 2017, which was not before the delegate and therefore was ‘new information’ within the meaning of s 473DC of the Migration Act 1958 (Cth) (“the Act”). The Reviewer was satisfied there were exceptional circumstances to justify its consideration (see s 473DD(a) of the Act). The IAA invited the Applicant to comment on information from that report. On 24 May 2017, the Applicant provided written submissions and attached documents which post-dated the delegate’s decision.
On 28 June 2017 the IAA affirmed the decision under review.
This application was filed on 22 August 2017 and it sought an extension of time within which to apply for review of the IAA’s decision. This application was made outside the time limit of 35 days from the date of the IAA decision: see s 477(1) of the Act. The Court has the power to extend time pursuant to s 477(2) of the Act. Having regard to the relatively short delay, the nature of the underlying issues (a protection claim), the Applicant’s circumstances, the lack of any significant prejudice to the Minister and that the Applicant appears to have an arguable case, an extension of time should be granted.
Applicant’s Facts
The Applicant was born in the Kilinochchi District in the Northern Province of Sri Lanka. He is an ethnic Tamil of Hindu faith. His family were displaced several times during the civil war. His uncle was a member of the Liberation Tigers of Tamil Eelam (LTTE) leader and his aunt was a LTTE fighter who died in the war.
The Applicant and his family surrendered to the Sri Lankan Army and were taken to Menik Farm camp in February 2009, where he was interrogated and accused of LTTE involvement. The Applicant and his family were released from the camp in December 2009 and returned to their village.
The Applicant’s uncle was captured during the war and imprisoned for a year, then sent to a rehabilitation centre for two months. Upon release, the uncle lived with the Applicant’s family. The Criminal Investigation Department (“CID”) would visit his uncle every day to obtain information.
Approximately two months after his uncle was released, the CID started to harass and question the Applicant about his involvement with the LTTE and ask for information about its members. This impacted the Applicant’s schooling and he feared that one day the CID would take him for interrogation and kill him. He decided to leave Sri Lanka and departed unlawfully in August 2012.
The Applicant’s brother was similarly harassed by the CID and attempted to leave Sri Lanka by boat in July 2012 but was caught and jailed for three months.
Since his departure, the Applicant claimed the CID continued to ask his father about his whereabouts. In November 2015 the Applicant’s father was arrested by the CID and released in June 2016 when the family paid money, on the condition his father report monthly to the CID office.
The IAA’s Findings
The IAA summarises the Applicant’s claims at [6] as follows:
The applicant has connections to the LTTE on both sides of his family. His paternal uncle was a ‘big shot’ LTTE officer and his maternal aunt, who had been a fighter, was killed in combat around 1998-2001.
The applicant grew up in Kilinochchi and was displaced a number of times due to conflict between the Sri Lankan government and the LTTE. The family was displaced again in February 2009 and entered a Sri Lankan Army-controlled area. They were taken to Menick Army Camp in Vavuniya. In the camp, the applicant was interrogated and accused of LTTE involvement. He denied this but was not believed and was told that he would be monitored. His father was also interrogated and told that all of his sons supported the LTTE. The applicant and his family were released from the camp in December 2009 and returned to their village.
The applicant’s uncle had been captured at the end of the war and imprisoned for a year and then sent to rehabilitation for two months. After his release, he came to live with the family. The Criminal Investigation Division (CID) would visit each day to obtain information from the uncle.
Approximately two months after the uncle was released, the CID started to harass the applicant and ask him questions. He believes they had obtained his file from Vavuniya. The CID would often come to his home to question him. They twice took him to the CID office for questioning, asking about his own LTTE involvement and for information about LTTE members. This impacted the applicant’s schooling and he was afraid that one day the CID would take him for interrogation and kill him. He decided to leave Sri Lanka, departing in August 2012.
The applicant’s older brother was also continually harassed by the CID. In July 2012, his brother had attempted to leave Sri Lanka by boat to Australia but was caught and jailed for three months. After being released from jail his brother was interrogated and beaten by the CID and accused of trying to leave because he had been involved in the LTTE. His brother planned to again attempt to leave but someone informed the CID and they threatened to kill him unless the applicant’s father handed over his passport.
Since the applicant’s departure the CID have asked his father about his whereabouts. The applicant’s father was arrested by the CID and jailed in November 2015. The authorities said he would be released if the applicant returned to Sri Lanka. He was released in June 2016 after the family paid money but has to report monthly to the CID in Colombo. The CID continue to ask about the applicant.
The applicant fears he will be killed by the CID or paramilitary groups if he returns to Sri Lanka. He says he will first be imprisoned then released and later abducted in a white van and killed. The fact that he left the country will confirm the suspicion he was in the LTTE. He has heard about the authorities’ treatment of Tamils and fears he will be severely harmed if he returns. The authorities believe they can obtain information from him because he is young. The applicant also fears harm for leaving the country illegally and seeking asylum.
The IAA accepted the following:-
a)the delegate’s finding that the Applicant was a Tamil from the North of Sri Lanka, that he had departed Sri Lanka illegally and that the authorities would infer he sought asylum in Australia;
b)the Applicant’s uncle was a LTTE leader who was captured, detained and rehabilitated after the war and that his aunt was in the LTTE and died during the war; and
c)the Applicant’s family were held at Menik Farm camp and that he was interrogated at that camp and accused of involvement with the LTTE.
The IAA did not accept the following:-
a)the Applicant was suspected of being LTTE by the authorities, because he was interrogated and investigated at Menik camp but not sent to a rehabilitation camp like those with suspected links; and
b)the Applicant’s father was detained between November 2015 and June 2016 or that he is required to report monthly to the CID. It was considered implausible the CID would detain the father three years after his departure, given their low level of interest in the Applicant.
The IAA acknowledged the 2012 UNHCR guidelines which identified those with certain LTTE links as at risk, but noted the guidelines were four years old, and instead preferred the more recent information submitted by the Applicant which generally recognised an improved situation for Tamils in Sri Lanka. Based on this information the IAA did not find that the treatment of asylum seeker returnees who departed unlawfully would not amount to serious harm from someone with the Applicant’s profile.
The IAA accepted the Applicant may be subject to occasional monitoring and harassment based on his uncle’s LTTE involvement but that it would not amount to serious harm.
The IAA did not accept that the Applicant would be seriously harmed based on his ethnicity, status as a young Tamil from a former LTTE-controlled area, family connections or any other imputed LTTE links. It did not accept there was a real risk he would suffer serious harm based on his individual profile as a young Tamil male with family connections to the LTTE.
The IAA was not satisfied the Applicant would be perceived as a LTTE sympathiser, or hold Tamil separatist views, or be harmed for such reasons.
The IAA did not find the Applicant would face a real risk of significant harm arising from his illegal departure due to any bail or fine, during any questioning or his brief time in detention, while awaiting a court hearing.
Grounds
In this matter, the Applicant pursues grounds 1 and 3 of his application and abandons ground 2.
Ground 1
Ground 1 is in the following terms:-
1. The IAA made jurisdictional error in that the IAA made a finding at CB469[14] that it does not accept that CID held any ongoing interest or suspicion that the applicant himself was a supporter of the L TTE, and (i) that finding was not open on the evidence or (ii) it was unreasonable to make such a finding
Particulars
(a) At 469[13] the IAA made a finding that because he was not detained or sent for rehabilitation, but released from the camp along with the rest of the family, indicated that neither he nor the other family members were suspected of being members or supporters of the L TTE by the time of their release;
(b) The IAA supported that with the country information it cited at Foot Note 5. The first cited document- Human Rights Watch, "Legal Limbo - The uncertain fate of detained suspects in Sri Lanka", 1 January 2010, CIS18222, says those 11,000 in rehabilitation were suspected members and not supporters. So because the applicant was not part of those does not mean he was not considered a supporter;
(c) The IAA also made the same erroneous finding on CB470[14] in that even if they did not suspect him not to be a member of L TTE he would have been suspected of being a supporter of LTTE;
(d) The IAA made a finding at CB469[11] that the CID (Criminal Investigation Department) harassed the applicant and his brother;
(e) That the applicant was questioned at home frequently;
(f) That he was twice taken to the CID office for questioning;
(g) See [19] for his claim & [20] he was closely related to former LTTE combatants; and
(h) The CID would not have gone to this extent of showing interest in the applicant if they did not suspect that he was at least a supporter of the LTTE.”
The Applicant challenges the findings of the IAA in paragraph 14 of the decision where the IAA concluded:-
Furthermore, the applicant said at the SHEV interview that when he was taken by the CID for questioning after returning to Kilinochchi, he was questioned on one occasion about whether he supported the LTTE, but on the second occasion they told him ‘it doesn’t matter if you’re not LTTE’ but asked him to identify people who were. This suggests that the authorities were aware the applicant had not been in the LTTE. I find the questioning was because of their interest in his uncle and was intended to obtain information about possible associates of the uncle. Beyond this, I do not accept that the CID held any ongoing interest or suspicion that the applicant himself was a member or supporter of the LTTE. Nor do I accept that the applicant was physically mistreated during any of these incidents. While he said in his biodata interview that he had been beaten, his evidence at the SHEV interview that he was threatened in the camp but not hit.
The Applicant argues that it was neither open on the evidence nor reasonable to make a finding that the CID had no ongoing interest or suspicion that the applicant himself was a “supporter” of the LTTE. The IAA also found that the CID had no ongoing interest in the Applicant on the basis of him being a member of the LTTE. The Applicant developed the argument on the basis that there were findings that the Applicant fell within a risk profile (see paragraph 20 of the decision) due to his family links with the LTTE. Counsel then referred to paragraphs 21 and 22 to highlight the findings that there had been improved conditions in Sri Lanka for Tamils, generally, but that, as was identified in paragraph 23:-
The country information indicates that the focus of the authorities has shifted since the end of the war, and is now on identifying persons perceived to be working towards post-conflict Tamil separatism within the diaspora or a renewal of hostilities. There nonetheless continue to be reports, although in lower numbers than was previously the case, of abductions, torture and use of excessive force against Tamils perceived to support the LTTE. As set out in the submissions to the IAA, there remain instances of torture of persons in police custody - described in some reports as ‘routine’ and ‘endemic’ - and there have been ongoing reports of disappearances, ‘white van’ abductions, and arrests under the PTA, including of persons linked to the LTTE. However, the use of torture, enforced disappearance and abductions for ransom are said to have significantly reduced since the end of the conflict.
Counsel also acknowledged that the IAA had discussed at some length country information at paragraph 24 and 25, which identifies some of the challenges facing Tamils and the discrimination and harassment they may receive.
Importantly, the IAA made factual findings at paragraph 13 to the following effect:-
However, I do not accept that the applicant was suspected by the authorities of having been in the LTTE, other than during the initial investigation at the camp. At checkpoints and also in the camps, the authorities separated certain individuals from their families, presumably because of alleged LTTE ties, and sent them to rehabilitation. As at December 2009, when the applicant was released, there were some 11,000 such persons in rehabilitation. The applicant’s evidence is that he was interrogated and investigated. However, he was not detained or sent for rehabilitation, but released from the camp along with the rest of his family, indicating that neither he nor the other family members were suspected of being members or supporters of the LTTE by the time of their release.
The Applicant in the submissions sets out an extract from the country information that was referred to, saying:-
This is apparent from the relevant extracts from that report as set out below:-
The Sri Lankan government is currently detaining at least 11,000 people, including more than 550 children, in so-called “rehabilitation centers.” These individuals, said to be associated with the separatist Liberation Tigers of Tamil Eelam (LTTE), were among the almost 300,000 displaced persons confined in detention camps in the final months of the armed conflict with the LTTE.
It is unclear whether any of the 11,000 detainees have been formally charged with any crimes and what acts these individuals have committed that led to their detention. In December, 2009, one government minister said that only 200 of the 11,000 detainees will be charged with a crime and that the vast majority of the detainees were forced to fight by the LTTE.
The government argues that the detainees are "surrendees" under the Sri Lankan emergency laws that permit the government to hold without charge or trial individuals for up to two years. It claims that the 11,000 detainees acknowledged that they had participated in the insurgency and effectively turned themselves in. (emphasis added)”
This of itself does not appear to indicate any error in the reasoning process of the IAA, but simply is further background material about the state of affairs in Sri Lanka.
In substance, the argument of the Applicant is that at the time that the Applicant was interrogated by the CID they were looking for “members” of the LTTE and not also looking for supporters. On this case, it is said that the IAA failed to properly consider the case; however, this ignores the clear words of the IAA in paragraphs 13 and 14 where it refers not only to members, but also to supporters.
It does not appear to me to be illogical or unreasonable for the IAA to have concluded that the Applicant was not of ongoing interest to the CID in the circumstances that the IAA sets out, importantly, that he was not detained or sent for rehabilitation, but simply released from the camp with the rest of his family. To attempt to draw the subtle distinction between members of the LTTE and supporters is an argument that could be put to a decision-maker, but not so overwhelming in the context of this case as to show that the findings the IAA made were either illogical or not reasonably open to them. I am not persuaded that the Applicant has established a ground for judicial review in this respect.
Ground 3
Ground 3 of the application is as follows:-
The IAA made two jurisdictional errors in the way it dealt with the question of whether the applicant was subject to serious harm in Sri Lanka
Particulars
(a) It mis-apprehended and misapplied s5J(5)(a), (b) and (c). The IAA accepted at CB473[27] that the questioning and harassment caused the applicant to fear more serious harm, that was sufficient to meet the requirements for the subsections. Further repeat the particulars of the particulars of Ground l(a), (b) & (c) above; and
(b) IAA misapplied the test for well-founded fear. By saying that “no such harm eventuated”, it was not considering “a reasonably foreseeable future” but was looking for “short term future” as the test requires - See SZGHS.
The Applicant developed ground 3 on the basis that it misapplied the test for a well-found fear of prosecution because it did not consider the potential harm to the Applicant beyond a short-term timeframe, and, secondly, that it misapplied s 5J(a) to (c) of the Act. The Applicant commenced this part of his argument relying upon paragraph 27 of the decision where the IAA said:-
The IAA also made similar error in making findings at CB470[14]. Firstly, if what the IAA found to be a fact at [13], that is if the CID didn’t suspect him being a supporter of the LTTE, then as set out in [14] why would they ask him if he is a supporter of the LTTE in the first place. Secondly further reasons the IAA offered. There the IAA found that “the authorities were aware the applicant had not been in the LTTE”. However in going from that finding to its next finding “I do not accept that the CID held any ongoing interest or suspicion that the applicant himself was a member or a supporter” it had no support on its finding about whether he was a supporter. The CID telling him "It doesn't matter if your're not LTTE" does not permit the inference that they did not think he was a supporter. The inference that is available is that even if they did not suspect him not to be a member of LTTE he would have been suspected of being a supporter of LTTE. That is the only implication available from the fact they were asking him to identify those who were from LTTE.”
The argument was developed on the basis that the IAA accepted that the harassment the applicant suffered caused him to “fear more serious harm”, and therefore, it was argued, that the Applicant’s fear of persecution was well-founded. It is then argued that the IAA had fallen into error by concluding that the harm must be physical to meet the test for a well-founded fear of harm.
It was also pressed that because no harm eventuated, as found by the IAA, the IAA had only looked into the short term rather than the long term and was, therefore, in error to conclude that there was no well-founded fear of persecution.
Counsel for the Minister points out that there was no argument put to the delegate nor the IAA that the Applicant’s psychological experience, as distinct from the potential effects of the threats being carried out, was a part of his protection claim.
The acts of past harassment and the threats of future conduct are evidence from which one must assess whether or not the Applicant was at real risk of serious harm in the future. It is well accepted that a tribunal can and often must look to the past facts and circumstances in order to form a view as to the risks confronting an applicant in the future. It does not appear to me to be an error of reasoning in the context of this case that the IAA would look to the past events as a significant part of the process to assess the risk to the applicant in the future.
The Applicant sought to rely upon SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 (“SZGHS”) where Allsop J (as his Honour then was) found that the tribunal’s decision in that case failed to consider the reasonably foreseeable future as the claim related to political difficulties, and in the future there were elections looming and the Applicant in that case would be campaigning for a particular political party. In this case, the IAA did not fail to consider the future. There was no future event of such significance as that considered in the context of the claims in SZGHS.
Rather, the IAA was assessing whether or not the conduct of the CID in the past indicated that there was a real risk of serious harm to the Applicant in the future. There are no specific further events of the style or type discussed in SZGHS that are said to have been ignored by the IAA.
Ultimately, I am not persuaded that the Applicant has established a judicially reviewable error on the part of the IAA and, therefore, I must dismiss the application.
It was agreed that costs should follow the event fixed at $7,150.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 1 April 2019
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