DVQ17 v Minister for Immigration

[2018] FCCA 3800

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3800

Catchwords:
MIGRATION – Application for judicial review – Immigration Assessment Authority – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: DVQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1860 of 2017

Judgment of: Judge Riethmuller

Hearing date: 22 November 2018

Date of Last Submission: 22 November 2018

Delivered at: Melbourne

Delivered on: 22 November 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1860 of 2017

DVQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’).  The IAA affirmed a decision of a delegate not to grant the applicant a protection visa. 

2. The applicant is a Tamil, from Sri Lanka, who arrived in Australia, on the Cocos Islands, as an unauthorised maritime arrival, in September 2012.  In September 2015, the applicant was permitted to apply for a protection visa.  The applicant applied for a protection visa in June 2016.  In November 2016, a delegate interviewed him.  The delegate refused to grant the visa in April 2017.  In August 2017, the IAA affirmed the delegate’s decision.

The Applicant’s Claims

1. The applicant claimed that he feared harm because of his involvement with the Tamil Nationalist Alliance.  The applicant said that he was harassed and beaten by the Karuna group.  The applicant also said that he was imputed to be an LTTE member, because of his Tamil ethnicity and his friendship with a person ‘D’.  The applicant said the Army questioned him and beat him due to his association with D.  The applicant also said that his home was burnt by Muslims and others in religious clashes.  The applicant also said that as a Tamil male who could not speak Singhalese, and as a failed asylum seeker who departed Sri Lanka illegally, he was at risk.  The applicant also said that he had some mental health problems, which explained some inconsistencies in his evidence.

2. The IAA rejected many of the applicant’s claims, although it did accept that he may have been harassed as a young Tamil male, but rejected the claim that he had been interrogated because of his friend D. 

3. The IAA did not accept that the applicant was a TNA supporter, and it did not accept that the Karuna group had pursued him.  The IAA was not satisfied that the applicant had a profile which would bring him to the attention of the authorities.  The IAA did accept that the applicant left Sri Lanka illegally, and that he would be briefly imprisoned and questioned on return.  The IAA was not satisfied the applicant would face harm at a level that justified granting a visa.

Grounds of Application

1. The applicant’s grounds for judicial review are in the following terms:

   1. The Immigration Assessment Authority’s finding at paragraph 16 that the applicant’s explanation that he was fearful to mention LTTE connections is at odd with his 2103 Statement of claims that he was harassed due to suspected LTTE connection was so illogical and irrational reasoning which was not supported by evidence. (Reference to Minister for Immigration and Citizenship – V- SXMDS {2010} HCA 16)

   2. The Immigration Assessment Authority did not assess that applicant’s claims cumulatively being a Tamil of Christian faith from East of Sri Lanka of perceived political opinion against the government of Sri Lanka and by not doing so fell in to jurisdictional error.

   3. The Immigration Assessment Authority has not complied with section 473DD & 473 DE of the Migration Act 1958 when finding that there are no exceptional circumstances to justify considering new information.

   4. The immigration Assessment Authority accepted that the applicant could face prison term for illegal departure from Sri Lanka.  It fell into jurisdictional error when it failed to consider whether the Sri Lankan authorities had the necessary intent of harm because they foresaw the consequences of their actions. (High Court Application S 272 /2016- Judgment reserved)

Ground 1

1. The first ground attacks [16] of the reasons.  That paragraph says:

   16. The applicant did not mention anything about [D] in his October 2013 statutory declaration, even though it was 28 paragraphs. Further, the applicant's explanation that he was fearful to mention LTTE connections is at odds with his 2013 statement claims that he was harassed due to suspected LTTE connections. It is particularly odd that he failed to mention the [D] claims in the context of those claims.

2. The reasoning in that paragraph is that the IAA found it odd that the applicant would not have mentioned his friend D in the first statement that he made.  The difficult second sentence of the paragraph reflects the unusual explanation that the applicant tried to give.  Given that his friend D was said to be a significant reason for the army taking an interest in him, and the applicant was asked about this in his entry interview, it is very surprising that the applicant would not have mentioned D at that interview, nor in his statutory declaration.  This forms a logical reason for the IAA not to believe the applicant’s later version of events, when he talked about D. 

3. I am not persuaded that the applicant has made out this ground.

Ground 2

1. Whilst ground 2 alleges that the IAA did not assess the applicant’s risks cumulatively, the IAA does seem to have done so, when one reads [54], [55] and [83].  Those paragraphs provide:

   54. Considering the applicant's circumstances and the country information I do not accept that the applicant faces a real chance of persecution because of Tamil race or ethnicity, religion or membership of a particular social group as a young Tamil male or male Tamils, Tamil from the East, young Tamil Christian male who does not speak Singhalese, Tamil Christian male or because he was detained and beaten in 2002 or his family were displaced in 1990.

   55. For the above reasons, I am not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities, paramilitary or Karuna groups, opposition groups or unidentified people or any other groups for an imputed pro-LTTE or anti-Sri Lankan government political opinion and/or because of his age, being a young Tamil male from Eastern province, born in Kalmuai, or because he was detained and beaten in 2002, now or in the  reasonably foreseeable future, if he returns to Sri Lanka.

   …

   83. In relation to the balance of his claims which I have accepted, I find the applicant singularly or cumulatively does not have a real chance of harm on the basis of his age, being a Tamil, from Eastern province, Tamil Christian, being born in Kulmunai, being displaced in refugee camps in the past, being harassed or beaten in 2002 by authorities, or because his mother was mentally unwell in 2003, not understanding/speaking Singhalese or because he left Sri Lanka and will return as a failed asylum seeker. For the same reasons, and applying the authority in MIAC v SZQRB [FN: (2013) 210 FCR 505] I am not satisfied the applicant will face a real risk of significant harm if he is removed to Sri Lanka.

2. The applicant has not made out ground 2.

Ground 3

1. This ground does not appear to relate to this case.  The IAA records that the applicant provided no new information, and that they had not obtained any new information. 

2. As a result, neither of the sections referred to in this ground appear to have any relevance in this case.

Ground 4

1. In this ground, the applicant alleges that the IAA applied the wrong test.  The reference given in the ground is to the file number of the case SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34. In that case, the High Court set out the correct test for considering the impact of imprisonment on people returning after illegally departing Sri Lanka. The IAA applied the correct test when they said:

   78. I find that the likelihood that the applicant will be detained in prison is remote, but if he does I accept the applicant may experience poor prison conditions during his detention.  Critically, I note that country information indicates the poor conditions are due to overcrowding, poor sanitation and lack of resources. I find there is no real risk that the applicant will be arbitrarily deprived of his life or be tortured. While the conditions are poor, an he is likely to be fined, I find there is no intention to inflict pain or suffering, severe pain or suffering or extreme humiliation. In these circumstances, the poor prison conditions to which he applicant may be subject, and the fine imposed, do not of themselves constitute significant harm as defined under the Act.

2. I therefore dismiss this ground.

3. As the applicant has not established a ground for judicial review, I must dismiss the application.

   [Further argument ensued]

Costs

1. In this matter, the Minister has been successful.  The successful party is entitled to a costs order for the legal costs of the Court case.  The Court scale sets out a reasonable fee for costs in this type of case.  The amount the Minister seeks is less than the Court scale.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  19 December 2018