DUF16 v Minister for Immigration

[2018] FCCA 2966

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUF16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2966

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: DUF16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1144 of 2016

Judgment of: Judge Vasta

Hearing date: 3 October 2018

Date of Last Submission: 3 October 2018

Delivered at: Brisbane

Delivered on: 3 October 2018

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: MINTER ELLISON

ORDERS

1. That the Applicant be granted leave to file a Further Amended Application.

2. That the Applications filed 9 December 2016, 7 March 2017 and 3 October 2018 be dismissed.

3. That the Applicant pay costs to the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1144 of 2016

DUF16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore) CORRECTED

1. By application filed in this court on 9 December 2016 the Applicant, DUF16, has asked this Court to review a decision of the Immigration Assessment Authority (“the IAA”).  That decision was given on 24 November 2016, and it affirmed a decision of the delegate not to grant DUF16 a protection visa.

2. In short, the claims of the Applicant are this.  He is a Tamil from Colombo Sri Lanka.  He worked as a car sales broker, and in April 1995 brokered the purchase of a van by a third person.  That van was later used in the June 1995 bomb attempt at Katunayake International Airport in Colombo.  The Applicant was subsequently arrested by the Crime Detective Bureau and held by them for questioning.  He claimed that they decided that he was innocent of any involvement in the bombing, and were preparing to release him when the Criminal Investigation Department (“the CID”) came to arrest him.  He said that he was held by the CID for two to three months, and then after that he was released.  He was brought before a court, found to be innocent and released.

3. He said then in February 1996, 30 army officers came to his home and arrested him, and he was taken to Kalutara Prison, and kept there for nearly two months.  He was released on 4 April.  He appeared in Court and was found to be innocent.  He said, as a result of the bomb incident, he believes that he has been imputed with an LTTE profile by elements of the CID, and that the CID officers think that he actually did have something to do with the bombing.  He said from 1996 until 2012 he was targeted seven times by the police, taken to the police station and held for a few days on each occasion.

4. He said in December 2008 he visited his mother in Jaffna, and six army intelligence officers came and took him to a camp where he was accused of being with the LTTE.  In July 2012, he said a police officer advised him that the Sri Lankan government fears a resurgence of the LTTE, and has instructed its forces to wipe out all persons who have previous links with the LTTE.  The applicant has never been involved with the LTTE, but believes he has been imputed as such and is on a watch list, so he decided to leave Sri Lanka.

5. He said that since the departure, the CID have visited his wife to inquire about him, and he said that a CID officer told his wife that when the applicant returns he will take him and kill him.  Although the government has changed in Sri Lanka, the director of the CID is the same person, and, therefore, the applicant says he will be continued to be harassed by the CID, and he will be killed.

6. On 20 September 2012, the Applicant was interviewed after his arrival in Australia, and he made claims regarding a business conflict with a Muslim man.  At his TPV interview he advised that this issue was in the past, and had faded away, and he had no fears arising from this incident. 

7. The IAA was very thorough in its examination of these claims.  It came to a conclusion that, having looked at country information, there was a bomb blast.  And the IAA was happy enough to conclude that the Applicant did have a connection in that he had sold the van some two months previous to the bomb blast.

8. The IAA accepted that he was arrested, but found that it was an exaggeration to say that there were 30 army people that came to arrest him.  The IAA looked at country information and found that there had been widespread targeting of Tamils in Colombo where they were arrested for really no reason at all, because the insurgents had infiltrated the Tamil population and were hiding amongst them. 

9. This called the widespread discrimination against Tamils that was occurring in 2012.  The IAA concluded that the seven arrests between 1996 and 2012 that the Applicant speaks of, were for the reason of him being a Tamil, and really had very little, if not nothing, to do with the 1995 blast.

10. The IAA found that the applicant was not a person of interest to the Sri Lankan authorities, and so, therefore, concluded that he was not a person of interest, and would not have a well-founded fear of persecution. 

11. The IAA looked at the treatment of returned asylum seekers, and looking at the country information, was not satisfied that there was a real chance that he would face harm as a returned failed Tamil asylum seeker. 

12. The IAA looked at the complimentary protection assessment, and also came to the same conclusion that there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm if returned to Sri Lanka.

13. The applicant filed his grounds on 9 December 2016, and then filed another set of grounds on 7 March 2017.  He has attended Court today with an amended application for judicial review and submissions, which had not been filed, and has asked me to accept those. 

14. These were only handed to the Minister’s representative this morning, and the Minister does formally object to the Court receiving this, but given the nature of what it is, I have decided that I would accept the amended grounds.

15. The grounds are:

    Ground One

    IAA made a jurisdictional error of relevance.

    Particulars

    The IAA accepted that the Applicant provided a van in 1995 which was used for the bombing at that time. 

    However, the IAA concluded that the Applicant was innocent and will not have any problems hereafter.

    It is a relevant issue that the Sri Lankan authorities will target persons who were suspected in LTTE involvement in the past. 

    As such the Applicant will be questioned on return about his past LTTE connections. 

    Although Applicant lived in Sri Lanka and was found to be innocent after the arrest in the late nineties, his departure from Sri Lanka will trigger suspicion.

    IAA failed to consider this aspect in its decision.

16. It seems to me that the IAA has looked at all of these aspects.  It was not a claim that was actually made to the IAA that, simply having that past, would lead to suspicion.  What the IAA did say in its reasons was this at 23:

    I accept the applicant was detained in 1995 and 1996 and has been subject to security operations that have seen him arrested and questioned by security authorities and, that as a Tamil, he has a subjective fear of ongoing harm on return to Sri Lanka.  The Immigration and Refugee Board of Canada report demonstrates that Tamils in Colombo have been subject to arbitrary arrest and detention and mistreatment, including torture.  However the general security situation has improved since the applicant departed Sri Lanka in 2012 and I find that his fear of serious harm on return is not well-founded.

17. Now, the IAA found at paragraph 17:

    I do not accept that the applicant has a profile as an LTTE supporter, or that he is now wanted by CID officers who still believe he was involved in the 1995 airport bombing; or that he is on a watch list.

18. Paragraph 18:

    As a result of my findings I am not satisfied there is any interest in the applicant that would result in the CID visiting his wife and issuing threats against him.

19. The IAA noted that the Applicant did not advance this claim until asked specifically by the delegate if anyone had been looking for him since he left Sri Lanka.  It seems to me that the IAA has looked at this aspect and has made a finding.  And what the applicant is attempting to do is to, in effect, have an improper merits review.  I find that there is no substance in Ground One. 

20. Ground Two is:

    IAA made a jurisdictional error, SZTAL ground.

    Particulars

    SZTAL will be decided by the High Court soon. 

    It is submitted that SZTAL applies to this case. 

    This is specially so in the light of the events the Applicant experienced in the past in Sri Lanka. 

    That is all that is said.

21. I can’t see how the SZTAL applies in this case and the Applicant cannot assist me.  To my mind, it seems a “catch-all” ground which has such a wide ambit.  It really gives no particularity for this Court to even consider whether there has been a jurisdictional error.  In those circumstances there is no merit in ground two. 

22. And that means that I have found that there is no jurisdictional error, and that the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 26 October 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUF16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2966

CORRIGENDUM

1. In paragraph 3 change from “and” to “an” and insert commas.

2. Create new paragraph 7

3. In paragraph 8 change “contrary” to “country”.

4. Create new paragraph 9

5. In paragraph 11 change “contrary” to “country”.

6. Create new paragraph 12.

7. Create new paragraph 14.

8. Create new paragraph 19.

9. Paragraph 21amended to italicize SZTAL and reword the paragraph to read clearly.

10. Create new paragraph 22

I certify that the preceding ten (10)

numbered paragraphs are a true copy of the

Corrigendum to the Reasons for Judgment

herein of Judge Vasta

Dated: 26 October 2018