DVD16 v Minister for Immigration and Anor

[2019] FCCA 1960

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVD16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1960

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority considered all of the evidence and took into account relevant considerations – whether the Authority considered and apprehended the applicant’s claims – whether the Authority’s adverse findings lack an evident and intelligible justification – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: DVD16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3523 of 2016

Judgment of: Judge Street

Hearing date: 17 July 2019

Date of Last Submission: 17 July 2019

Delivered at: Sydney

Delivered on: 17 July 2019

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Direct basis

Solicitors for the Respondents: Ms N Milutinovic
Sparke Helmore

ORDERS

1. The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

DATE OF ORDERS: 17 July 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3523 of 2016

DVD16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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”) made under Part 7AA of the Act on 1 December 2016 affirming the decision of a delegate not the grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil from Killinochchi, Northern Province, Sri Lanka. On 8 November 2012, the applicant arrived in Australia as an unauthorised maritime arrival. On 23 May 2016, the applicant lodged an application for a Safe Haven Enterprise visa.

3. The applicant claimed, in summary, that he had been imputed with a Liberation Tigers of Tamil Eelam (“LTTE”) profile and that he would be harmed by the Sri Lankan authorities.

4. The applicant alleged that his wife was asked to come to a Sri Lankan Army (“SLA”) checkpoint on 7 February 2009. At the SLA checkpoint, the applicant alleged that his wife was asked about LTTE affiliations and accused of being involved with the LTTE. The applicant alleged that his wife was raped and killed by the SLA. The applicant also alleged that he was harassed and questioned by the Criminal Investigation Department (“CID”). The CID allegedly viewed the applicant suspiciously because of his wife’s death at the hands of the SLA.

5. The applicant alleged that he was the Secretary of the School Development Society in 2011/2012. The applicant alleged that he advocated for closure of a canteen operated by the SLA on the school premises. The applicant alleged that this gave rise to a source of conflict with the SLA. The applicant also alleged that the SLA visited him at home and that he was required to report to them on six occasions. The applicant also alleged that he was physically assaulted, threatened and accused of being an LTTE supporter.

6. The applicant alleged that his freedom to practise his religion in the manner of his choice was restricted by the state authorities. The applicant identified that he was a member of a particular Temple Management Committee. The applicant alleged that the Temple Management Committee was told they had to get the permission of the SLA to play songs over the loudspeaker. The applicant alleged that the SLA did not give such permission. The applicant also alleged that the Temple Management Committee had to get permission to have their management meetings and that the SLA restricted the Temple’s festival events. The applicant identified that daily worship was allowed but, when the Temple held public events, they had to inform the SLA who attended the events and took aside and questioned people of interest.

7. The applicant alleged that the CID had visited his family home to ask about him. The applicant also alleged that he had departed Sri Lanka illegally and would be a failed asylum seeker if his application for a Safe Haven Enterprise visa was refused.

8. On 14 October 2016, the delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. On 20 October 2016, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on submissions and new information. On 17 November 2016, the applicant put on submissions and new information which were referred to and considered by the Authority.

9. The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act. The Authority identified the applicant’s claims as summarised above. The Authority also had regard to the applicant’s submissions insofar as they engaged with the delegate’s decision.

10. The Authority identified that the applicant’s submissions contained new information. The Authority identified the requirements under s 473DD of the Act in relation to the new information, correctly identifying both limbs of s 473DD of the Act.  The Authority referred to the new information and was satisfied in respect of documents regarding visits by unknown persons to the applicant’s family home that there were exceptional circumstances to justify the Authority having regard to the same. The Authority was not satisfied in respect of the letters of support, the information from the Human Rights Commission of Sri Lanka and other reporting regarding torture in Sri Lanka that there were exceptional circumstances to justify considering the same.

11. The Authority accepted that the applicant is a Tamil who has lived in northern Sri Lanka. The Authority also accepted that the applicant, having come from an LTTE-controlled area to government-controlled Jaffa in 2000, was investigated by the CID and required to report monthly. The Authority also accepted that it was plausible the applicant was assaulted by the CID on regular occasions. The Authority took into account that, since the cessation of hostilities in 2009, the security situation in Sri Lanka has improved.

12. The Authority referred to the applicant’s account in relation to his wife. The Authority accepted that the applicant’s wife would have been interviewed by the Sri Lankan authorities. The Authority noted that the applicant’s wife was not seen by anyone after she was taken for questioning and, as such, it cannot be known what happened to her at the camp, why she was shot, what she was questioned about, or if she was accused of being involved with the LTTE.

13. The Authority took into account independent country information about atrocities committed by the SLA to the civilian population. The Authority accepted that the applicant’s wife was killed in the last months of the civil war. The Authority was not satisfied, however, that the applicant’s wife was targeted by the SLA because she was suspected of being linked to the LTTE. In that regard, the Authority took into account that none of the three children or the applicant’s wife’s father, who was with the family, were arrested or questioned by the SLA at this time. The Authority accepted that the applicant was required to undergo a long administrative and legal process to have his children released into his care from an Internally Displaced People (“IDP”) camp in 2009.

14. The Authority accepted that the applicant was involved in campaigning for the Tamil National Alliance (“TNA”) in the 2011 election. The Authority found that there is not a real chance of harm to the applicant because of his past involvement or any future involvement with the TNA, should he seek to support the TNA on return to Sri Lanka.

15. The Authority found that it was plausible that, after the applicant’s return to Sri Lanka in 2009, he was questioned by the CID and required to report regularly. The Authority also noted that the compulsory registration of Tamils has ceased. The Authority found that the applicant would not be subject to monitoring and reporting which he was subject to before departing Sri Lanka three years before.

16. The Authority found that the applicant did not have a profile as an LTTE member or as a family member of an LTTE supporter. The Authority also took into account the changed circumstances in the security situation in Sri Lanka.

17. The Authority identified reasons why it had considerable doubt that the applicant, and his family after his departure, was the subject of ongoing attention by the CID. The Authority took into account that the applicant failed to mention visits by the CID in his visa application. The Authority found that the failure by the applicant to mention visits by the CID in his visa application brings the genuineness of those claims into doubt.

18. The Authority referred to the lodging of complaints with police and the Human Rights Commission. The Authority referred to having regard to the supporting documentation provided. The Authority accepted that the complaints present a contemporaneous record but do not substantiate that the events actually occurred. The Authority noted that the documents acknowledge that complaints were made but do not evidence that the events in the complaints occurred. In these circumstances, the Authority gave the documents little weight.

19. The Authority referred to the applicant’s claims of multiple visits by the CID over many years and repeated visits since he left Sri Lanka. The Authority noted that there is no indication that the applicant or his family lodged police or Human Rights Commission complaints in relation to these pre-October 2016 visits. The Authority took into account the timing of the alleged visits by the CID, which were within a matter of days of the applicant’s visa interview, and found that the applicant advanced these claims in an attempt to enhance his protection claims.

20. The Authority was not satisfied that the applicant has a profile that would attract the attention of the CID on an ongoing basis after his departure from Sri Lanka four years ago. The Authority did not accept that the CID had been visiting the applicant’s family since his departure. The Authority also did not accept the applicant’s claim that his daughter is boarding at a university to avoid the CID.

21. The Authority referred to the applicant’s claims regarding his involvement as a member of the Temple Committee and his religious belief being restricted. The Authority referred to the Sri Lankan Constitution providing for religious freedom and country information in relation to religious tensions which existed. The Authority accepted that the ability of the Temple to function as the applicant and the management committee wished was restricted by the police and the intervention of the SLA. The Authority noted that, at the time, the north of Sri Lanka was still highly militarised and security authorities actively monitored the civilian Tamil population. The Authority accepted that this resulted in close monitoring of large scale Temple events by the SLA and the probable questioning and arrest of anyone of interest detected at these events. The Authority referred to the applicant’s representative’s submission in relation to the overlap between the religious and political persecution. The Authority took into account that daily worship was not restricted but that complaints on playing music and celebrating Hindu festivals restricted the applicant’s religious practice.

22. The Authority also assessed whether the applicant would be restricted in the future in practising his religion to the extent which would amount to serious harm. The Authority took into account the improvements in the security situation since the applicant departed Sri Lanka. The Authority referred to 2015 Department of Foreign Affairs and Trade (“DFAT”) country information which assessed that most members of religious groups in Sri Lanka are able to practice their faith freely. The Authority also referred to successive governments having included ministers with portfolio responsibilities for each of the four major religions and that the 2015 DFAT country information indicates that the Tamil community feels more confident to refuse or question the motives of monitoring activities by the authorities under the current government.

23. In these circumstances, the Authority found that the applicant’s experience as part of the Temple Committee reflected the monitoring at the time of the Tamil community. The Authority took into account that the Tamil Community were largely Hindu. The Authority was satisfied that, due to improvements in the general security situation, the applicant will not be restricted in the practise of his religion and there is not a real chance he will experience serious harm on return to Sri Lanka.

24. The Authority considered the applicant’s claims that he would be imputed with an LTTE profile on the basis of his wife, his Tamil ethnicity, being from a former LTTE controlled area, his support for the TNA, his advocacy over the closure of the canteen which is a reference to the applicant’s role as the secretary of the School Development Society, and/or his activities with the Temple. The Authority was not satisfied that the applicant has been imputed with an LTTE profile. In these circumstances, the Authority found that the applicant’s fear of serious harm on return to Sri Lanka on this basis is not well-founded.

25. The Authority accepted that the applicant departed Sri Lanka illegally and would be considered by the authorities to be a failed asylum seeker. The Authority found that the applicant may be detained and questioned at the airport for up to 24 hours, fined for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) and may face being held in prison for a period of time. The Authority referred to the generally poor prison conditions.

26. The Authority did not consider that a brief period in detention would constitute the necessary level of threat to the applicant’s life or liberty, would be significant physical harassment or ill-treatment under s 5J(5) of the Act or otherwise amount to serious harm for the applicant. The Authority also did not consider that the likely questioning of the applicant by the authorities at the airport on his arrival and/or any surety imposed or the imposition of a fine under the Immigrants and Emigrants Act 1949 (Sri Lanka) would constitute a threat to the applicant’s life or liberty, would be serious physical harassment or ill-treatment under section 5J(5) of the Act or otherwise amount to serious harm. The Authority was not satisfied that there is a real chance the applicant will face any harm as a returning failed asylum seeker.

27. The Authority found that the Immigrants and Emigrants Act 1949 (Sri Lanka) is not discriminatory on its terms. The Authority found that the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act 1949 (Sri Lanka) would be the result of a law of general application and does not amount to persecution for the purpose of ss 5H(1) and 5J(1) of the Act.

28. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant failed to meet the criteria in s 36(2)(a) of the Act. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the originating application that are pressed are as follows:

   Ground 1

   The Authority fell into error when it failed to consider relevant considerations and took into account irrelevant consideration and / or failed to consider a claim or integer of the claim.

   Particulars

   (a) The Applicant had claimed fear owing to his previous work as a secretary of the School Development Society.

   (b) The Authority has failed to consider the Applicant’s claims.

   (c) The Authority fell into error in carrying out proper review and thereby committed jurisdictional error.

   Ground 2

   The Authority fell into error when it failed to consider the applicant’s claim and / or failing to give meaningful consideration to the of the Applicant’s claims as per the letter provided by the Applicant.

   Particulars

   (a) The Applicant had claimed fear owing to interest by CID.

   (b) The Applicant provided letter from the MP in support of his claims.

   (c) The Authority has failed to give proper, genuine and realistic consideration to the information.

   (d) The Authority fell into error in carrying out proper review and thereby committed jurisdictional error.

   Ground 3

   The Authority committed jurisdictional error when it misapprehended the Applicant’s claim regarding religion and / or failed to ask the correct questions and / or failed to properly exercise its discretion.

   Particulars

   3.1 The Applicant had claimed that whilst there was no restriction on him practising as Hindu, the Applicant was restricted from practising the religion in the manner he practised religions whereby certain activities were restrained.

   3.2 The Applicant as Hindu adherent was restricted from playing God songs and holding Hindu festivals.

   3.3 The Applicant was thereby restricted from practising his religion in the manner he as a follower practised.

   3.4 The restriction amounted to the right of the Applicant to practise religion freely.

   3.5 The Authority fell into error and / or applied the wrong test.

   3.6 The Authority committed jurisdictional error.

   Ground 4

   The Authority committed jurisdictional error when it substituted key findings of the delegate without the Applicant being given opportunity to respond and / or failed to ask the correct questions and / or failed to properly exercise its discretion under s 473DF of the Act.

   Particulars

   4.1 The delegate had accepted that the Applicant’s wife was involved food preparation for LTTE and was killed by SLA.

   4.2 The Authority substituted such findings with its own findings substituting that of the delegate did not raise the reason with the Applicant such that the Applicant the motive for damage.

   4.3 The Authority did not enquire from the Applicant or provided the Applicant with any opportunity to respond on that issue / claims.

   4.4 Made no findings as regards the issues he with CID in his capacity as secretary.

   4.5 The Authority committed jurisdictional error.

   Ground 5

   The Authority fell into error in consideration of letter from the Human Rights Council [19] and / or engaged in findings that are illogical / irrational and / or unreasonable and / or failed to give genuine and realistic consideration.

   Particulars

   5.1 The HRC Applicant had claimed ongoing harassment.

   5.2 The events included post-SHEV harassment.

   5.3 The HRC has joined high-ranking Sri Lankan officials as respondents.

   5.4 The Authority has failed to consider these claims.

   5.5 The Authority fell into error in carrying out proper review and thereby committed jurisdictional error.

2. The Court noted that Mr Kumar of counsel on behalf of the applicant confirmed that ground 4.1 was no longer pressed and was abandoned, and that grounds 6 and 7 were abandoned.

Ground 1

1. In relation to ground 1, Mr Kumar argued that the Authority had failed to have a real and genuine consideration of the applicant’s claim in relation to his role as a secretary of the School Development Society. Mr Kumar submitted that the Authority’s reasons in paragraph 23 of its reasons were a conclusion which did not reflect a real and genuine consideration of the applicant’s claims in relation to his fear from his role as secretary of the School Development Society.

2. It is apparent from the Authority’s reasons that the Authority identified the whole of the integers of this claim in its summary of the applicant’s claims. Given the correct identification of the integers, there was no need for the Authority to engage in further analysis.

3. The finding in paragraph 23 is a dispositive finding which was open to the Authority. In making the adverse finding in paragraph 23, the Authority’s reasons are not ones in respect of which it could be said that there is a failure to consider a relevant consideration or a failure to consider a claim or integer of the applicant’s claim. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, Mr Kumar confirmed that the document the subject of ground 2 was a letter identified in paragraph 8 of the Authority’s reasons. Mr Kumar contended that the letter was one in respect of which the Authority had not given genuine and realistic consideration to whether or not the requirements of s 473DD of the Act were met.

2. The Authority in its reasons identified that, although the documents post-dated the delegate’s decision, the information in the documents related to events which occurred in the past. In these circumstances, the Authority took into account that there was no information to indicate the applicant could not have obtained these letters earlier and provided them to the Minister. Those were logical and rational reasons which reflect a real and genuine consideration of the letter for the purposes of s 473DD of the Act and whether the requirements were met. The Authority referred to the whole of the limbs of s 473DD of the Act in its reasons. There is no substance in the contention that the Authority adopted an erroneously narrow meaning of “exceptional circumstances” or otherwise misconstrued the requirements of s 473DD of the Act. Nor is there any basis to find that the Authority misconstrued or misconceived the substance of the letter that was provided.

3. The Court does not accept that the Authority was required to engage in further analysis of the new information. On the face of the Authority’s reasons, there was real and genuine consideration given to the requirements of s 473DD of the Act in respect of the letter. The Court does not accept that the Authority failed to carry out the proper review or misapplied s 473DD of the Act in respect of the letter. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, Mr Kumar submitted that the applicant had not been able to properly practise his religion, his religion would be restricted if he were returned to Sri Lanka and the Authority had misapprehended the applicant’s claim.

2. In the adverse determination by the Authority at paragraph 22 of its reasons, the Authority correctly identified the applicant’s claims which it also summarised at paragraph 10. No criticism is advanced in respect of that summary. The Authority’s reasons at paragraph 22, as summarised by the Court above, reflect a real and meaningful engagement with the applicant’s claim and the making of a dispositive finding which was open to the Authority.

3. There is no substance in the contention that the Authority misapprehended the nature of the claim or that the Authority did not properly exercise its functions in the review required under Part 7AA of the Act. The Court has summarised the findings above and the Authority’s reasons provide a logical and rational basis for the adverse finding in respect of this integer. The finding that the applicant will not be restricted in the practise of his religion was open to the Authority. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, Mr Kumar accepted that there was a reference to the applicant’s role as secretary of the School Development Society at paragraph 23 of the Authority’s reasons. Mr Kumar submitted, however, that there had not been a real and genuine engagement by the Authority with the applicant’s claim.

2. As earlier identified, the Authority correctly identified the applicant’s claim in its summary at paragraph 10 of its reasons. No criticism is made of the Authority’s summary in respect to the applicant’s claim concerning his role as secretary of the School Development Society. In these circumstances, given the other findings by the Authority in relation to the applicant’s claim as summarised above, there was no need for the Authority to engage in further analysis of the applicant’s claim.

3. The adverse finding at paragraph 23 of the Authority’s reasons was open to the Authority and is dispositive of that claim. There is no substance in the contention that the finding of the Authority in this regard was speculation. The substance of ground 4 is, in reality, an invitation to this Court to engage in merits review. No jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, Mr Kumar took the Court to the human rights letters at pages 147 and 148 of the Court Book and to the Authority’s reasons at paragraph 19. Mr Kumar submitted that there had not been a genuine and realistic consideration of the applicant’s claim in relation to those letters.

2. The Authority in its reasons at paragraph 19 identified the documentation provided as summarised above. The Authority accepted that the documents presented a contemporaneous record but reasoned that they did not substantiate the events actually occurred. In these circumstances, no further analysis of the documents was required by the Authority.

3. On the face of the Authority’s reasons, the Authority gave real and genuine consideration to the applicant’s claims and evidence in relation to the complaints and determined to give the documents little weight. That was a finding open to the Authority and does not reflect any error. The Court does not accept that there was a failure by the Authority to give real and genuine consideration to the documents the subject of ground 5. Nor does the Court accept that there is a failure by the Authority to carry out a proper review as required under Part 7AA of the Act in respect of these documents. It was a matter for the Authority to determine what weight to give to documents. Ground 5 is, in substance, an invitation to the Court to engage in merits review. No jurisdictional error is made out by ground 5.

4. In these circumstances, the application is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 September 2019