DVB16 v Minister for Immigration

[2018] FCCA 659

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVB16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 659

Catchwords:
MIGRATION – Application for protection visa – review of decision of Immigration Assessment Authority – whether the Authority erred by failing to apply the “real chance” test to the applicant’s circumstances – whether the Authority erred by failing to consider a claim or integer of a claim made by the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36(2) 473CA

Other materials cited:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2)

Cases cited:

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

Applicant: DVB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3521 of 2016

Judgment of: Judge Smith

Hearing date: 27 February 2018

Date of Last Submission: 27 February 2018

Delivered at: Sydney

Delivered on: 23 March 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Rasan T Selliah & Associates

Solicitors for the Respondents: Ms S Burnett, Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3521 of 2016

DVB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 8 November 2016.  The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a Safe Haven Enterprise Visa (SHEV) on 19 August 2016.

Background

1. The applicant arrived in Australia on 19 October 2012 from Sri Lanka.  On 29 March 2016, he applied for a SHEV, a type of protection visa.  In summary, that application was based upon the claim that the following characteristics of the applicant placed him at risk of being imputed with a pro-LTTE[1] political profile and persecuted if he were to be sent back to Sri Lanka:

   [1] Liberation Tigers of Tamil Eelam.

   i)he is a young Tamil male;

   ii)he originated from the northern province of Sri Lanka and underwent, inter alia, compulsory LTTE defence tactic training;

   iii)he possesses scars that raise suspicion of combat fighting;

   iv)he provided support to the LTTE in the form of masonry and transportation services;

   v)he has familial links to individuals wanted by the CID[2] (the applicant’s brother);

   vi)he failed to report to the CID when requested to do so;

   vii)he has familial links to individuals with actual LTTE links (the applicant’s brothers-in-law);

   viii)he is a failed asylum seeker; and

   ix)he illegally departed from Sri Lanka.

   [2] Criminal Investigation Department.

2. On 19 August 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was referred automatically to the Authority under s.473CA of the Migration Act 1958 (Cth).

3. The Authority made its decision on 8 November 2016, affirming the decision of the delegate.

Authority’s reasons for decision

1. As submitted by the first respondent, the Authority accepted that the applicant:

   (a)was a national of Sri Lanka from Killinochchi, Northern province and a Tamil and Hindu;

   (b)had lived with his family in LTTE controlled areas during the war and that his brothers-in-law were killed in 2007 and 2009 and were members of the LTTE;

   (c)    was forced by the LTTE to provide food parcels and distribute leaflets;

   (d)undertook compulsory LTTE defence tactics training and was forced to work for the LTTE from time to time as a mason and driver between 2006 and 2008;

   (e)had scarring on, and a small amount of shrapnel in his head;

   (f)was questioned in a threatening and abusive manner by the CID twice and was fingerprinted and photographed by the CID;

   (g)was questioned by the CID at an Internally Displaced Persons (IDP) camp in 2009 and at the local SLA camp in approximately March 2012 and a month later in relation to one of his dead brothers in law and his involvement in the LTTE;

   (h)was visited by the CID at his house on 16 August 2012 who told his wife that he must report to the CID;

   (i)went into hiding when he did not report to the CID until he left Sri Lanka at the end of September 2012. The IAA also accepted that after 6 or 7 months after the Applicant fled Sri Lanka, the CID visited his wife’s and mother’s home enquiring after his whereabouts and in December 2015 the Applicant’s brother fled to Switzerland because the CID was looking for him.

   (Emphasis in original and citations omitted)

2. However, having regard to the UNHCR Guidelines[3] and other country information before it, the Authority did not consider that the applicant was at risk of harm.  Its critical reasoning is found in the following paragraph:

   34.Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicant to be at risk of harm for a number of reasons. First, many people who resided in LTTE areas interacted with the LTTE on a daily basis, were forced to assist the LTTE, were required to undergo defence training and residing in a LTTE controlled area does not on the evidence indicate a need for protection. Secondly, although his brothers-in-law were members of the LTTE, it is not a close family link and both brothers-in-law were killed by the authorities during the war. Thirdly, the applicant was not a member of the LTTE and none of his immediate family were members of the LTTE. Fourthly, although he was questioned, and not physically harmed, twice at the IDP camp, such questioning was common as the authorities screened all IDPs in search of LTTE members and supporters. Fifthly, country information suggests that monitoring of Tamils in the north and east was routine, together with many former IDP camp residents reporting and visits from the authorities, and the authorities showed no interest in the applicant after his release from the IDP camp until approximately March 2012 and then again a month later in approximately April 2012, when he was further questioned and threatened. Sixthly, despite threatening to shoot the applicant at the second interrogation in around April 2012, the authorities made no effort to question the applicant again until 16 August 2012 when they called at his house and asked him to report to them. Seventhly, despite failing to report to the CID as requested on 16 August 2012, it was six or seven months before the CID made any enquiries about the applicant’s whereabouts, the authorities have not made any further enquiries after that time and country information indicates routine monitoring has decreased under the current Sir Lankan Government. Eighthly, the applicant has not claimed in his evidence in his SHEV application or at the SHEV interview that the CID looking for his brother is in any way related to the applicant or demonstrated a connection between his brother’s position and his own protection claims. Lastly, country information suggests that scarring was a matter of interest to the Sri Lankan authorities during the war and in its immediate aftermath when considering suspected LTTE involvement but that it is no longer the case. I am not satisfied that the authorities would have had any adverse interest in the applicant, beyond routine monitoring in common with many Tamil’s in the north and east at the time, if he had remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities on return. Given the above factors, and the country information, I consider any risk of harm to the applicant from the authorities based on his profile to be remote.

   (Without alteration and citations omitted)

   [3] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka , 21 December 2012.

3. The Authority also went on to consider and reject the applicant’s claims based upon the hypothesis that he would return to Sri Lanka as a failed asylum seeker and an illegal departee from that country; however, in light of the issues in the proceedings, it is unnecessary to set out its findings in that respect.

4. The Authority concluded that the applicant did not satisfy the requirements for the definition of a refugee in s.5H(1) of the Act and so did not meet sub-s.36(2)(a) of the Act, nor did he satisfy the requirements in sub-s.36(2)(aa). Accordingly, the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.

Consideration

1. In his amended application the applicant raised four grounds but ultimately only pressed three (grounds 1, 2 and 4 in the amended application). 

Grounds 1 and 2

1. The first and second grounds were based upon the same argument, namely that the Authority failed to apply the “real chance” test.  There were two limbs to this argument: first, that the Authority’s finding that the applicant would not be monitored by the authorities upon return to Sri Lanka was inconsistent with country information referred to by the Authority at [31] of its reasons; and secondly, that the Authority relied solely on past events in order to determine what might occur in the future.

2. The applicant’s arguments focussed upon the finding made by the Authority in the second last sentence of [34] of its reasons:

   … I am not satisfied that the authorities would have had any adverse interest in the applicant, beyond routine monitoring in common with many Tamil’s in the north and east at the time, if he had remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities on return. …

3. It was common ground, and I accept, that the second part of the extracted sentence involved a finding that there was no real chance that the applicant would be monitored upon return to Sri Lanka.

4. The applicant pointed to the reference in [31] of the Authority’s reasons to the 2016 report of the UK Home Office to the effect that, even since the changes in Sri Lanka since January 2014, and the election of President Sirisena, the “authorities continue to monitor people, particularly in the north and east…”.  He argued that that information, which appears to have been accepted by the Authority, was inconsistent with the conclusion that the applicant would not be monitored. 

5. However, that information was not inconsistent with the Authority’s finding.  First, the information referred to by the Authority was general information that referred to “people” although it identified more particularly people in the “north and east” which related more closely to the applicant’s circumstances given his origin.  The information did not say that the authorities continued to monitor all people.  Other information referred to by the Authority at [29], recognised that each case would depend upon its individual circumstances.  That information is consistent with a proper approach to the determination of whether an applicant is a refugee.  Further, the Authority had regard not only to the country information available to it but also to the personal circumstances of the applicant in accordance with that proper approach.

6. The seventh reason given by the Authority at [34] of its reasons included consideration by the Authority of the following matters:

   … despite failing to report to the CID as requested on 16 August 2012, it was six or seven months before the CID made any enquiries about the applicant’s whereabouts, the authorities have not made any further enquiries after that time and country information indicates routine monitoring has decreased under the current Sir Lankan Government. …

7. Having regard to that reasoning, the Authority’s conclusion that the applicant would not be monitored on return to Sri Lanka was consistent with the information referred to at [31]. In brief, it reasoned that although authorities continued to monitor people, the authorities would not monitor the applicant given the three matters referred to in the seventh reason given in [34].

8. The seventh reason in [34] also provides an answer to the second limb of the first and second grounds.  While it is true that the Authority did have regard to past events, it is not true, as the applicant asserts that it had sole regard to those matters.  The Authority makes plain in its reasons that it had regard to recent information concerning the current circumstances pertaining in Sri Lanka as they might affect the applicant.

9. The so-called “real chance” test derives from the decision of the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62. The Court there considered the definition of the term refugee as found in Article 1A(2) of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees.  It found that that definition contemplates that there is a “real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage” if he or she returns to their country of nationality: at [388] (Mason CJ), [398] (Dawson J), [407] (Toohey J), [429] (McHugh J).  Bearing in mind that the term “real chance” is epexegetic of rather than a replacement for the words “well founded” in the definition of a refugee in the Convention (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572; [1997] HCA 22), the test still has relevance even though the definition of refugee for the purposes of the Act is now found in s.5H: see s.5J(1).

10. While it may be that the test for the purposes of the criteria for the grant of a protection visa is, as the applicant suggests, a forward-looking test, [34] of the Authority’s reasons do not reveal that the Authority took any approach inconsistent with the test, or indeed, with any proper understanding of the criteria.  The first and second grounds are rejected.

Ground 4

1. Ground 4 is that the Authority failed to consider a claim or integer of the claim made by the applicant, namely that he would suffer mistreatment on arrival back in Sri Lanka because his failure to report to the CID in 2012 would elevate his profile and possible link to the LTTE.  The Minister did not suggest that the applicant had not made such a claim but argued that the claim was dealt with in [34] of the Authority’s reasons which is set out above.  The applicant argued that the findings in [34] were not sufficient given the detail and manner in which the claims were made.

2. The claims were in fact made quite specifically and expressly in written submissions made on behalf of the applicant before both the Department and the Authority.  In submissions sent to the Department on 2 August 2016, the applicant’s agent referred to certain country information concerning suspicion of LTTE links and stated:

   … In the case of the applicant the suspicion would even be greater due to his fleeing illegally when he was asked to report at the CID office and his being a failed asylum seeker hailing from a former LTTE stronghold and fortress.

3. In submissions sent to the Authority on 13 September 2016, the applicant’s advisors referred to this claim on 2 occasions:

   15.Failing to report to the CID: The Delegate stated that he does “not consider [the applicant’s] failure to report to the local police to be reason for ongoing police interest in him”. The Delegate provided no reasoning for this belief.  Given that the reason the applicant is being asked to attend the CID office is linked to terrorism, and because failing to report demonstrates a failure to cooperate with the investigation, we submit that there is definitely an ongoing interest in the applicant which is aggravate [sic] by his failure to report. …

   …

   19.Finally … We submit that since then the applicant has failed to follow reporting orders from the CID, left Sri Lanka illegally and sought asylum overseas. … We submit that these factors, in combination with what the authorities already knew (the applicant’s race, sex, age, home village, and his familial connections to the LTTE), elevate the applicant into a high-risk category.

   (Emphasis in original and citations omitted)

4. There is little doubt that the claim that the applicant’s profile would be raised by, amongst other things, the fact that he had failed to report to the CID was a substantial, clearly articulated argument relying upon established facts: Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088 at [24]; [2003] HCA 26 and, as a consequence, the Authority was under an obligation to consider that claim in order to complete its task of reviewing the delegate’s decision: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at [55]; [2004] FCAFC 263.

5. However, it is not the case that the absence in a statement of reasons of any express consideration of a particular claim or issue necessarily establishes that the decision-maker has failed to consider that claim or issue.  In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593, the Court (French, Sackville and Heely JJ) said at [47]; [2003] FCAFC 184:

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. …

6. The Court there referred in its reasoning to the fact that the Tribunal in that case was not a court but an “administrative body operating in an environment which requires the expeditious determination of a high volume of applications”. It noted that, for that reason, the Tribunal’s reasons were not to be scrutinised “with an eye keenly attuned to error”: [46]. In my view that reasoning applies equally here.

7. The Authority here summarised the applicant’s claims at [5], including that he possessed characteristics that placed him at risk of being imputed with a pro-LTTE political profile because, amongst other things, he failed to report to the CID. Further, it made express findings in which it accepted the claim that the applicant was required to report to the CID and yet failed to do so: [33]. Thirdly, at [34], it referred again to this claim in the seventh reason given for its conclusion. Finally, it made a finding that was at a higher level of generality than the precise claim made by the applicant in the second last sentence of [34] which, again, is set out above. In other words, the Authority was well aware of the claim, it made findings about the factual basis for the claim, and, by making a finding at a greater level of generality effectively dealt with it. For that reason, ground 4 is not made out.

Conclusion

1. There is no jurisdictional error in the Authority’s decision and the application will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       23 March 2018