DXA17 v Minister for Immigration and Anor

[2018] FCCA 1667

FEDERAL CIRCUIT COURT OF AUSTRALIA

DXA17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1667

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), ss.5H(1), 36(2)(aa), 36(2A), 5J(1)(b)

Applicant: DXA17

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 850 of 2017

Judgment of: Judge Vasta

Hearing date: 11 June 2018

Date of Last Submission: 11 June 2018

Delivered at: Brisbane

Delivered on: 11 June 2018

REPRESENTATION

Solicitors for the Applicant: Stolar Law

Counsel for the Respondent: Ms Hoiberg

Solicitors for the Respondent: Minter Ellison Lawyers

ORDERS

1. That the Application filed on 30 August 2017 and the Amended Application filed on 21 November 2017 be dismissed.

2. That the Applicant pay the costs to the First Responded fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 850 of 2017

DXA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 11 August 2017 the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate of the Minister not to grant the applicant, DXA17, a protection visa.

2. DXA17 is a Sinhalese male from Beliatta, in the Southern Province of Sri Lanka. Whilst in Sri Lanka he was a very active supporter of the United National Party, the UNP, in both provincial council and presidential elections. In 2005 he campaigned for the UNP candidate. 

3. As a result of his support for that candidate he says that he came to the adverse attention of supporters of the other candidate, a Mr Rajapaksa.  In 2010 he also campaigned for the UNP candidate and, again, says that he came to the adverse attention of Mr Rajapaksa’s supporters and received death threats. 

4. He left Sri Lanka, and since living in Australia he has converted from Buddhism to Christianity.  If returned to Sri Lanka he fears that he will be seriously harmed on account of:

   a)his conversion to Christianity;

   b)his active support for the UNP and involvement in politics;

   c)the level of crime in Sri Lanka;

   d)his illegal departure from Sri Lanka; and

   e)his asylum application in Sri Lanka.

5. The IAA looked through all of the claims that the Applicant had made.  The Applicant had given an interview on his arrival in Australia.  He had provided a written statement signed on 22 January 2016 where he outlined his claims for protection for his application for a safe haven enterprise visa.  He was interviewed by the delegate during the safe haven enterprise visa application process, and his representative made post-interview submissions to the delegate. 

6. There were four direct pieces of evidence coming from the Applicant that was part of the material that the IAA was examining, amongst other material that the IAA examined.  Whilst there was some discrepancy in his evidence, generally the claims that he was a supporter of the UNP and came to the adverse attention of supporters of the opposition was accepted. 

7. There were concerns expressed by the IAA as to his evidence as to what happened after the 2010 elections.  Paragraph 16 of the reasons, the IAA say this:

   However, I have some concerns with the applicant’s evidence in the SHEV interview that Rajapaksa’s supporters continued to come to his family home as recently as 2011 to “kill” him.  I note that no such claim was advanced in his SHEV statement and the claim was inconsistent with his written claim that he had moved away from Beliatta shortly after the January 2010 election.  The applicant advised the delegate that he had worked in different parts of Sri Lanka because he didn’t have any money and needed money, and that he returned to Beliatta to visit his parents whenever he had the opportunity.  The delegate put to the applicant that given his low-level profile as a supporter it seemed unlikely that Rajapaksa’s supporters would continue to have an interest in him around a year after the election.  In response, the applicant stated that other people in the country with radical views were vocal and subjected to such treatment.  However, I note this differed from the applicant’s claim that he was a person keeping a low profile at this time.  I also have concerns with the applicant’s evidence in his SHEV statement that he was living in hiding between 2010 and 2012 prior to his departure from Sri Lanka.  As noted above, in the SHEV interview, the applicant indicated he was forced to travel to different parts of Sri Lanka where he could find work in the construction industry and he indicated that on occasions he returned to Beliatta between jobs when he had the opportunity.  According to a driver’s licence application signed and dated by the applicant on 28 October 2011 the applicant listed his address as Beliatta, which does not support his claim that he was living in hiding from the Rajapaksa’s supporters during this period.  While I have accepted that the applicant was mistreated and threatened by some political opponents of the UNP around the time of the January 2010 election, I am not satisfied that, for around two and a half years, the applicant did not live in one place because of threats he had previously received.  The applicant’s evidence is that he returned to Beliatta several times during this period.  Given the profile of the applicant, and the evidence discussed above, I find his claim that he was threatened in 2011, around one year after the election, and that he was also living in hiding following the January 2010 unconvincing.  For this reason, I do not accept that the applicant was personally threatened in 2011or that he was living in hiding from 2010 up until his departure from Sri Lanka.

8. The IAA also noted that the situation in Sri Lanka has changed markedly since the Applicant’s departure from Sri Lanka, and that there are no banned political parties, and all parties operate freely, subject to general legal restrictions.  The report from DFAT assessed that there were no official laws and policies that discriminated on the basis of political opinion, nor was there systemic political discrimination against any particular group. 

9. The IAA also noted that, in August 2015, the UNP became part of the ruling party alliance with the Sri Lanka Freedom Party after those general elections.  Mr Rajapaksa now was in opposition, though it was noted that he was still a member of the Sri Lankan Parliament. 

10. The IAA also noted the DFAT report as to the profile of the Sri Lankan Police Service and the moves that have occurred in Sri Lanka to reinstate a level of law and order, and protection for its citizens.  The IAA accepted that political violence still occurs in Sri Lanka, particularly around elections, but that has been greatly reduced, and given the low profile of the Applicant, and the fact that that is a supporter of the UNP which is a major party in the ruling alliance, the IAA was satisfied that the chance of him being seriously harmed in the reasonably foreseeable future because of his involvement in politics is remote. 

11. The IAA then looked at the religious aspect.  Whilst it accepted that he had converted to Christianity, the IAA found that it was not satisfied that there was a risk of serious harm for this reason.  Whilst the IAA noted and considered that the Applicant practiced his faith in English rather than his native tongue, and that he had not told his parents of his conversion because he did not think that they would be accepting of this, the IAA still found that there was a level of religious tolerance and freedom in Sri Lanka. 

12. The constitution provided for freedom of religion while giving Buddhism a foremost place.  Attacks on places of worship, or religious objects and insults to religion are subject to criminal penalties.  The IAA noted the DFAT information that Christianity is one of the four major religions in Sri Lanka, and there are four Ministers each of the appropriate religion with responsibility for the four major religions.  The country information indicated the prominent Buddhist, Hindu, Muslim and Christian leaders are invited to all national functions, although only Buddhist rituals are performed at most events. 

13. The DFAT information was that the former Rajapaksa Government sanctioned religious discrimination.  But DFAT was not aware of any similar reports happening since the change of government in 2015.  The present government has publically said it is committed to ethnic and religious reconciliation. 

14. The DFAT information was that most members of religious groups are able to practice their faith, freely.  The IAA concluded that they accepted that acts of anti-Christian violence have occurred in the past, however, on the evidence they were not satisfied that the Applicant would be harmed in Sri Lanka on account of his Christian faith. 

15. Whilst it was accepted that the Applicant’s parents may disapprove of the religious conversion, the IAA was not satisfied, nor did the Applicant claim, that he would be subjected to harm from his parents on this basis. 

16. The IAA found that on return to Sri Lanka the Applicant will be free to practice his faith if he chooses, and there is not a real chance that he will experience serious harm from extremist and nationalist Buddhist groups, or any other person on account of his religion, now or in the reasonably foreseeable future. 

17. The IAA then looked at the crime rate in Sri Lanka, and concluded that, like many other countries, there was a level of violent crime in Sri Lanka.  However, the country information was accepted.  That information indicated that the military, intelligence and police all exercise effective control over the entire country.  Further, the IAA accepted that there was no evidence before the Authority to indicate that the Applicant or any member of his family has been targeted by criminals in the past. 

18. On the evidence before the IAA, the IAA found that the chance that the Applicant would be seriously harmed as a victim of crime in the reasonably foreseeable future was remote. 

19. The IAA then looked at illegal departure and returning to Sri Lanka as an asylum seeker, and looked at the DFAT material which indicated that persons who have left the country or who are returning as failed-asylum seekers are subject to prosecution.  That prosecution is, from the country information, such that a charge is laid under the Immigrants and Emigrants Act No.20 1948 (“IAEA”). 

20. Most returnees are then fingerprinted, and photographed, transported by police to the nearest Magistrates Court at the first available opportunity once investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. 

21. The court then makes a determination as to the next steps for each individual returnee.  Returnees who are arrested can remain in police custody at the CIB airport office for up to 24 hours after arrival.  Should a magistrate not be available before this time, returnees who are charged may be held at a nearby prison. 

22. The prison conditions are ones that do not meet international standards.  However, once coming before the court whilst they may face penalties that can include up to five years imprisonment and hefty fines. In practice, penalties are applied to such persons on a discretionary basis and usually in the form of a fine.  Advice from Sri Lanka’s Attorney General’s Department to DFAT is that no returnee who left Sri Lanka unlawfully as a simple passenger has been given a custodial sentence for their breach of the IAEA. 

23. Fines are common for returnees, but the amounts vary depending on the circumstances of the case, and can be typically paid by instalments.  The IAA came to the conclusion that the Applicant would be charged, and fined under the IAEA and then released.  If the Applicant elected to plead not guilty to the offence, he would be granted bail on a personal surety and there was no suggestion that the Applicant was anything other than an ordinary illegal departee from Sri Lanka. 

24. In that context, the IAA found that he would not face any chance of imprisonment, but it was highly likely that he would be fined.  As noted, the IAA, using the DFAT information, assessed the risk of mistreatment for people suspected of an offence under the IAEA as being low. Whilst poor prison conditions may abound during a short period of detention, the prison conditions to which the Applicant may be subjected do not, of themselves, constitute serious harm as defined by the Migration Act 1958 (Cth) (“the Act”).

25. Further, the IAA was not satisfied the Applicant would face a real chance of serious harm during any brief time spent in detention. The IAA then concluded that the Applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and then went to assess the complementary protection assessment. For much the same reasons, the IAA came to the conclusion that the Applicant did not face a real risk of suffering significant harm upon return to Sri Lanka. Therefore, the Applicant did not meet the criteria in s.36(2)(aa).

26. The Applicant has one ground which is made up of five separate aspects according to the amended application that was filed in November.  I will go through them ad seriatim. 

    1. The ground is that the IAA has not considered full integers of the claim of the Applicant:

    i. The IAA has failed to adequately consider that the Applicant was a member of the United Nations Party (“UNP”) in the Beliatta Electorate of Hambantota which is the electorate of the Namal Rajapaksa, the former president of Sri Lanka Mahinda Rajapaksa and a potential future president of Sri Lanka given his family’s considerable political influence. The IAA has failed to consider the requirements of s.473E of the Migration Act 1958 (Cth) (“The Act”) when considering the political affiliation of the Applicant as an UNP supporter.

27. As was pointed out during the hearing, the Applicant was not suggesting that he was a member of the party as we, in western society, may understand that.  Therefore, a member is someone different from a supporter.  This was a concern of mine, because the material before the IAA and the reasons of the IAA, solely were based upon the Applicant’s claims of supporting the UNP, rather than his being a member. 

28. It was clarified that the terms “member” and “supporter” were interchangeable, and that the ground was not suggesting that the Applicant was in any separate class of affiliation of the UNP that was not considered by the IAA.  What was simply alleged is that the IAA has failed to adequately consider this aspect. 

29. As was pointed out during the hearing, to find a jurisdictional error one must look to whether or not the IAA has actually considered the point.  There are no degrees of consideration.  It has either been considered, or it has not been considered.  The fact is that in my recitation of the IAA’s reasons, it is quite obvious that the support that the Applicant had for the UNP was considered. 

30. It is very difficult than to say that the section has been breached.  That section requires the IAA to make a decision on a review including a written statement setting out the reasons for the decision.  As was pointed out by the Respondent, the IAA complied with that requirement, giving reasons for its decision in respect of that support of the UNP.  So that part of the application has no merit.

31. The next part of the ground:

    ii. The IAA found the Applicant will face significant harm pursuant to s.36(2A) of the Act. Further, the IAA then found there was not a real risk of the Applicant suffering significant harm on return to Sri Lanka as required within the meaning of section 5J(1)(b) of the Act. Further, the Act requires that reasons be set out supporting the decision so made.

32. With regard to this ground, the IAA had not found that the Applicant would face significant harm.  The IAA found, as I have recited, there was no inconsistency in what the IAA found and what the conclusion was.  

33. In the outline of submissions, what is said is that this particular part of the ground related to the findings of what would occur once the Applicant returned with regard to how the authorities would deal with him.  The outline of submissions says this about the ground, that it was a determination made without any evidence; that it was based on a possibility only, not a probability; that the finding was a finding that was not based on relevant considerations. And then this was said:

    It is highly likely the applicant being the person he is, and has so found to be, is a person who will face a real chance of imprisonment, bearing in mind that he is a person of high profile and in the circumstance, this even on the basis of the decision-maker’s finding, would elevate the penalty he would face.

34. There was nothing in the evidence that would in any way support the contention made in the outline of submissions.  The determination was made upon what was contained in the DFAT report.  There has been nothing shown to me that what the IAA looked at is contrary to what is in the DFAT report. 

35. The claim that this was based upon a possibility only is of no moment, whatsoever.  What it was, was an assessment of what is likely or most likely to happen to the Applicant upon his return.  The statement that the finding was a finding that was not based on relevant considerations has not been explained, either.  As I said to Mr Stolar during the course of the hearing, a relevant consideration is something that must mandatorily be considered by the IAA.  There is nothing that Mr Stolar could show to me that showed that this was a finding that was not based upon something that was mandatorily meant to be considered by the IAA. 

36. Having regard to the information as I recited it, there, the statement that there is a high chance that this Applicant would be imprisoned has absolutely no basis, in fact, either.  It is simply an attempt by the Applicant to put his interpretation on the evidence as against the interpretation of the IAA.  I do not find that there is anything within this particular ground. 

37. The next part of the ground is:

    iii. The IAA has failed to consider the Applicant will be subject to extortion from the law enforcement authorities in Sri Lanka by being an apostate and a failed asylum seeker from Australia.

    iv. The IAA has failed to consider the Applicant will be subject to extortion from the local criminals by virtue of being an apostate and a failed-asylum seeker from Australia.

38. I have looked at those two matters together.  I have asked counsel, because I could not find it in the green book, where there was any reference at all to a threat of extortion by anyone, whether they be police, or law-enforcement authorities, or government officials, or criminals, or local criminals or anyone.  There was no such reference, at all.  In the written submissions all that is said is:

    It is submitted that in the circumstances as identified in the material referred to in Ground 2 above, and the lawlessness that reigns within Sri Lanka, that there has been a failure by the respondent to take that matter into consideration, that is, that the lawlessness will infect the applicant to the extent of his status.

39. What was said for ground 4 is, simply, this is enmeshed into ground 3.  Neither of those submissions has any substance, whatsoever.  I find that those parts of the application fail.

40. The last part of the ground was that:

    v. The IAA has failed in its findings, to provide reasons for the decisions so made pursuant to its obligations to do so as set out in s.473EA of the Migration Act.

1. That section, as I have already gone through, just simply asks the IAA to set out reasons.  Whilst one might take these grounds as an attack on the adequacy of the reasons, there is nothing in what has been submitted to me or that I have been able to find, especially in my recitation of the facts as contained in the IAA decision, which would confirm, on any view, that the IAA has failed to state its reasons.  It has done so.  There may be debate by the Applicant that these were not adequate, but that is really not a matter that could be argued with any force. 

2. The reasons were thorough, they went through all of the aspects of the applicant’s claim, and have then ended in a compelling rationale by the IAA for the conclusions that it made.  Therefore, I do not find that there is any substance in that part of that ground or part of the ground of ground 1.

3. That disposes of all of the grounds that were in the application.  However, today, the solicitor appearing for the applicant, Mr Stolar, has sought leave to add a new ground.  That new ground being that the conclusion made by the IAA that the Applicant does not fulfil the criteria of refugee or the criteria of complementary protection is a conclusion that was not open on the evidence. 

4. Having recited the evidence that was before the IAA I am satisfied that the conclusion is one that is open on the evidence.  This is not a merits review.  This is not a process where the Court finds or it looks at what is the decision that should have been made.  This is a process where the Court has a look at the decision of the IAA, and it must determine whether it was one that could have been made.  Whether it should have been made is an irrelevancy.  The question is whether it could have been made.  On the assessment of the evidence the conclusion made by the IAA was certainly open on the evidence. 

5. Whilst the Respondent has, in their written submissions, adumbrated that the Applicant was actually seeking to add further grounds, it seems to me that such imputation, whilst I can understand why the Respondent may feel that way, was open.  The grounds of this application have been well and truly delineated, and they have been considered by this Court. 

6. The consideration has led to a conclusion by me that there has been no jurisdictional error. 

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

Date:       16 October 2018