DXC18 v Minister for Immigration

[2019] FCCA 3916

FEDERAL CIRCUIT COURT OF AUSTRALIA

DXC18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3916

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), s.473DD

Applicant: DXC18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 405 of 2018

Judgment of: Judge Vasta

Hearing date: 4 September 2019

Date of Last Submission: 4 September 2019

Delivered at: Perth

Delivered on: 4 September 2019

REPRESENTATION

Applicant in person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the name of the First Respondent be varied to reflect “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Application filed 27 July 2018 is dismissed.

3. That the Applicant pay the cost of the First Respondent fixed in the sum of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 405 of 2018

DXC18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 26 June 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the Delegate not to grant the Applicant, DXC18, a protection visa.  On 27 July 2018, the Applicant filed an originating application, in this Court, asking this Court to review that decision. 

2. The background of this matter is that the Applicant is a Sri Lankan of Tamil ethnicity.  He originates from Jaffna in the Northern Province of Sri Lanka and he was born in 1974.

3. The area in which the Applicant grew up was a former stronghold of the LLTE and, after the civil war, it came under the control of the Sri Lankan Army (“SLA”) and the police; notably the Criminal Investigation Department (“CID”).  The Applicant claimed that his brother, who is given the name “U”, was involved with the LTTE.  He claimed that in 2002, “U” was arrested by the CID for weapons offences and was detained for several months and tortured.  He was then released by court order.

4. He said that “U” was recaptured by the CID some months later and taken to the CID fourth floor in Colombo and he was tortured again.  He was held for 15 days and then he was released.  He claims that “U” then went to the Swiss Embassy in Colombo to seek asylum, and a month later was taken to Switzerland where he remains.  This seems to have been towards the end of the first decade of the new century. 

5. The Applicant said that in January 2011, the CID came to his parents’ home searching for him.  He was not there and so the CID arrested his younger brother, “T” and detained him. 

6. He said that this traumatised his mother, who collapsed and subsequently died of a heart attack.  He said that the CID released “T” and “T” later went to Qatar. 

7. In 2012, the Applicant says that the CID began searching for him and instructed him to report to their camp.  He did this and when he arrived he was threatened with death if he did not bring his brother “U” to them.  He said he was accused of being an LTTE member together with his brother “U”.  He said he was detained for two days and assaulted and tortured by two men and threatened with a gun that he would be killed.

8. He said he was released because his wife paid a ransom demand to one of the CID officers, who then allowed the Applicant to leave that night.  He said that the CID officer pretended that the Applicant had escaped. 

9. The Applicant said that he was afraid for his life and did not return home, but stayed the night with a friend who told him of a boat being organised to go to Australia.  He left the next day on that boat.  He said that was 10 August 2012.

10. The Applicant did arrive in Australia at the Cocos Islands in late 2012.  He claimed that after he arrived in Australia, the CID searched for him at his father’s house and used threatening and abusive words to his wife and to his father.  He said that they still continued to search for him at his father’s house and told his father to let them know when the Applicant returns.  He said his wife has moved to live elsewhere.

11. The Applicant claims that he fears that he will be arrested and harmed, or killed or extorted for money and be subjected to discriminatory behaviour and mistreatment if he returns to Sri Lanka. 

12. He says this because the CID and the Sri Lankan authorities suspect that he was involved in the LTTE, because of his brother. 

13. He said that he is in danger of such harm also because he is a Tamil male from the north of Sri Lanka and this imputes him with being linked to the LTTE.

14. He said that he will be harmed also because he escaped illegally from Sri Lanka and will return as a failed asylum seeker or involuntary returnee.  He said that he will be subjected to lengthy detention and interrogation and harm during the returnee processing procedures because of his profile. 

15. The IAA went through the claim quite thoroughly and came to certain conclusions.  The IAA looked at a number of matters as well as the country information.  The IAA concluded that the Prevention of Terrorism Act 1978 (Sri Lanka) and Emergency Regulations (Sri Lanka) were used by the Sri Lankan authorities during the later years of the first decade of this century to imprison those whom they thought were LTTE members.

16. The IAA did not accept that the brother “U” was a member of the LTTE or that he served in their intelligence unit.  The IAA did not accept that he was arrested with weapons, though the IAA was satisfied that he was actually arrested and detained.  But, the IAA found that that arrest and detention was an experience common to many young Tamil men from LTTE areas at that time, because the security forces often imputed LTTE leanings on persons simply because of the area in which they came.

17. The IAA noted that the Applicant had made two statements as to the re-arresting of his brother “U”; one that had occurred in Colombo and the other that had occurred in Jaffna.  The IAA found that discrepancy quite material.  The Applicant, when pressed upon this discrepancy by the Delegate, claimed that his high blood pressure sometimes gives him memory problems.  However, there was no medical evidence that would support this at all.

18. The IAA accepted that the Applicant has worries about his situation and the precise dates many years ago may not easily be recalled. But, the IAA considered that a difference between an arrest in Colombo or in Jaffna was significant and the IAA was not satisfied as to the explanation that the Applicant gave.  The IAA did not accept that “U” was re-arrested or taken to the fourth floor in Colombo, or further detained after his first court release and then released again. 

19. The IAA was willing to accept that “U”, the brother, left Sri Lanka for Switzerland in about 2009 and remains there. 

20. The IAA was not satisfied that the CID came to the residence of the Applicant, or the father’s residence, in 2011 for the purpose of looking for the Applicant and arrested “T” simply because the Applicant was not home.  The Applicant gave another story during his interview which was that the CID came to the house looking for “U”.  The IAA noted that it was plausible that there would be a routine household check of the residence and that “U”, having once lived there, would have had his whereabouts queried.

21. The IAA accepted the general country information that, in the repressive environment of that time, the authorities could be threatening and forceful in their interaction and it is plausible that they may have threatened to arrest and detain “T”. But the IAA did not accept that this was because they were looking for the Applicant, or looking for “U”.  The IAA was willing to accept that the mother did have a fatal heart attack during, or shortly after, that incident.

22. The IAA was not convinced that “T” was actually arrested.  The IAA noted that “T” was able to travel to Qatar and that he later returned to Sri Lanka and he remains living in Sri Lanka.  The IAA said there was no credible evidence before the IAA or the Delegate of any further problems from the authorities in relation to “T”.  

23. As to any suggestion that the family was simply not telling the Applicant about this, the IAA said that they did not accept that the family is shielding the Applicant from worry by not disclosing any news of any harassment given to them.

24. The IAA said that this indicates that the past suspected LTTE links of “U” have not imputed any political opinion of the LTTE support to “T” or any other members of “U’s” family. The IAA did not accept that the authorities were, or are, harassing family members specifically looking for “U”.  For this reason the IAA did not accept that the Applicant had been imputed with any political opinion arising from his brother “U”. 

25. The IAA went through in quite some detail then as to the country information and what the Applicant had said had occurred after he had left in 2012. 

26. The IAA ended up concluding at paragraph 19:

    I am willing to accept that for a limited period of time after U’s release from detention the authorities may have monitored him and that in routine household checks after U’s departure in 2009 the authorities may have asked the father and the family there about U’s whereabouts.  I do not accept that the authorities continue to visit the father to ask about U, so many years after his departure.  I note that there is no credible evidence before me that the authorities searched for or asked for T’s whereabouts after his departure to Qatar, despite the claim that he was arrested because of U’s departure, and I do not accept that the authorities were, or are now, searching or asking about the applicant. That the applicant’s wife has not been questioned about the applicant’s whereabouts or harassed since she moved away from the applicant’s father’s house back to her family in 2013, strongly indicates that the CID and Sri Lankan authorities maintain no adverse interest in the applicant.  I do not accept that the authorities had any adverse interest in the applicant for any reason when he departed Sri Lanka.  I do not accept he was ever imputed with any political opinion of LTTE support because of the fact that his brother was once detained on such suspicion or because his brother had left Sri Lanka.  There is no credible evidence before me that the applicant has ever been involved in any separatist or anti-government activities either in Sri Lanka or in Australia.

27. The IAA, then having made those findings, looked at the criteria for protection as a refugee and looked at the country information.  The IAA noted how life has changed for Tamils in Sri Lanka since the 2015 change of government, and that the authorities are no longer focused on arresting, prosecuting or rehabilitating people with former LTTE links.  Whilst there is still some sensitivity to any LTTE re-emergence, there is, on the country information, no real LTTE organisation that is in existence to the same level as it was back at the time that the Applicant left Sri Lanka.

28. The IAA looked at the Applicant’s Hindu religion, even though the Applicant really gave no further evidence about his faith, and looked at whether there was any targeting of Hindus on the evidence before the IAA.  The IAA concluded that there was an overall assessment in the country information that there is only a low risk of official discrimination on religious grounds.  The IAA said at paragraph 32 that:

    … I am not satisfied that the applicant faces a real chance of harm arising from his ethnicity, or his religion, or being a male Tamil from the Northern Province, or from his brother U’s history, or from any political opinion imputed to him from any, or any combination, of those factors upon return to Sri Lanka, or in the foreseeable future.

29. The IAA then looked at what would happen to the Applicant having been returned to Sri Lanka as a failed asylum seeker and looked at what had occurred.  At paragraph 35 the IAA noted that:

    The Sri Lanka Attorney-General’s Department claims that no returnee who was merely a passenger on a people smuggling boat has been given a custodial sentence (the maximum is five years) for departing Sri Lanka illegally, instead fines have been issued as a deterrent. Fines may vary from 3,000 Sri Lanka rupees for a first offence up to 200,000 Sri Lanka rupees, and there is provision to pay a fine by instalment…

30. The IAA looked at what happens if a person pleads guilty, or if a person pleads not guilty, but is then convicted; and also what happens when a person is first returned to Sri Lanka, and the authorities invoke the Immigration and Emigration Act 1949 (Sri Lanka).  At paragraph 38 the IAA said that:

    …country information states that all involuntary returnees are subject to the airport questioning and processing procedures on return and that all persons who depart Sri Lanka illegally are subject to the I&E Act on return and that the procedures and law are not discriminatory on its terms. In this case, the evidence also does not support a conclusion that the procedures and law are selectively enforced or applied in a discriminatory manner. I find that the airport processing, and the investigation, prosecution and punishment of the applicant under the I&E Act would be the result of laws of general application and do not amount to persecution for the purpose of s. 5J(1) of the Act.

31. The IAA rejected the Applicant’s claim that he would be in danger if returned because he is a returned asylum seeker.  At paragraph 39 the IAA said that they “were not satisfied that there is a real chance the applicant will face any harm as a returning failed Tamil asylum seeker”.  On the totality of the evidence then, the IAA was satisfied the Applicant did not meet the requirements of the definition of refugee. 

32. The IAA then looked at the complementary protection assessment criteria and again went through the evidence, but at paragraph 48 said that:

    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant would suffer significant harm… 

33. Having come to those conclusions, the IAA affirmed the decision.

34. In the originating application, the Applicant had two grounds, though why they are separated is somewhat difficult to understand.  I will read them both into the record:

    1. That the decision of the Second Respondent Immigration Assessment Authority falls into an error of law.  The Reviewer made facts finding error, ignored relevant material and relied on irrelevant in reaching their decision and reasons on 26 June 2018. 

    2. Such an error of law is a jurisdictional error which will invalidates decision of the Immigration Assessment Authority.

35. Straightaway, one can see that there is no particularity in those grounds and they speak of nothing that would enable anyone to understand whether there was a jurisdictional error or not. 

36. Because of this, when the Applicant appeared before Registrar Trott on the first court date on 26 September 2018, the Registrar made an order that the Applicant should file any amended application by 23 November 2018.  The Registrar also ordered that the Applicant file and serve written submissions in support of his application 35 days prior to the hearing, that is in the last week of July of 2019, and set the matter down as a show cause hearing today, 4 September 2019, at 11.30 am.

37. The Applicant did not comply with any of those orders, however has turned up today.  He has been aided by an interpreter.  When I asked him as to what it was that he wanted to say to me in relation to his application, he said to me that he would not remember.  After some short period of silence, I then tried to summarise the decision to him in very short compass.  When I had said to him that the conclusion was, that there was no real risk that he would suffer significant harm, his reply to me was - “How would they know?”    

38. He then said to me that everyone knows about the recent bombing in Sri Lanka where Catholic churches were targeted.  He said that at the moment there is a 25 day festival at the Hindu temple Nallur in Jaffna.  This festival is going morning and evening, but it is surrounded by army and police.  He rhetorically asked, “If there is peace in Sri Lanka, why would the army be needed to be there for this festival?” He said, “Because there is still fear in the country the army is always nearby”. 

39. He said that if there is any trouble that is occasioned, the people who were connected to the LTTE will be targeted and, because of his connections to the LTTE, he said that is why he was scared.  He said that even now there are still problems in Jaffna; that they are going into houses and killing people. But it is not known who “they” are and who is actually doing this.  But he said that the LTTE sympathisers are the persons being targeted. 

40. Those oral submissions do not advance the position any further.  What those oral submissions do is to attempt to have an impermissible merits review and to do so upon what the Applicant now says from the Bar table is the situation in Sri Lanka, at the current time.  As I have detailed in my recitation of the IAA decision, the IAA specifically rejected that the brother “U” was an LTTE member and specifically rejected that the Applicant had been imputed with any political opinion because of this.

41. Realistically, the claims that the Applicant has made in his oral submissions before me today were claims that had been addressed by the IAA and had been rejected.  The grounds of the application, again, suffer from the lack of particularisation. 

42. It is trite to say that for the IAA to “ignore relevant material” means that the IAA has a mandatory duty to consider some material and has failed to do so.  The Applicant has not identified any such material and, on the face of it, I cannot see any such material either.

43. It may be thought that the Applicant is referring to some new material that his migration agent attempted to put before the IAA. The IAA did mention this material at the beginning of their reasons as to what had been put before it, and when it came to some of the material that the immigration agent put before it, the IAA determined that it was new material. Because it was new material, the only way that the IAA could accept that material was if it came within the criteria in section 473DD of the Migration Act 1958 (Cth).

44. The IAA had looked at that material and had applied the proper criteria under that section to decide whether it should receive that material or not.  There cannot, and does not seem to, be any lack of logic or irrationality in the reasoning of the IAA in this respect. 

45. Notwithstanding that, the Applicant has not raised this because he is unrepresented. There is a school of thought that the Court somehow must go through and check for itself almost as if it were making sure that no one had actually missed anything.

46. I have looked at this aspect to make sure that the IAA has not committed any error.  The reasoning in paragraph 6 of the IAA decision is proper.  The IAA has considered the matter and has come to the conclusion that there were no exceptional circumstances to justify considering the new information. 

47. I cannot see that there are any exceptional circumstances and the Applicant has not raised any exceptional circumstances that would, in any way, undermine the validity of the decision-making process of the IAA in that respect.

48. The Applicant also attempted to have considered a letter from a Thurai Thavaraj, who is the Director of The Human Rights Organisation, and a Justice of Peace (“JP”).  That letter asserted that the Applicant’s wife and father submitted letters to Mr Thavaraj and that he had seen that, “they are true and correct to the best of my knowledge.  I am sure that any of them return here is every possibility of they being arrested and he will face a lot of problems”.  The Applicant said that he only received the letter on 19 September 2017 and could not have provided it earlier.

1. That is so, because it was received after the decision of the Delegate.  But there was no explanation as to why the letter of support was not sought at an earlier time, and from the contents of the letter it was written at the behest of the wife and the father based on unidentified information that was conveyed to the JP.  It is apparent from the letter that the JP had no first-hand knowledge of the Applicant or of his circumstances.  For those reasons the IAA did not consider that the letter was reliable or had any probative value.

2. In all of the circumstances the IAA was not satisfied that there were exceptional circumstances to justify considering this information. That aspect of s.473DD(a) of the Act, then, was not met. There was no need for the IAA to consider any other limb of s.473DD of the Act. There is no illogicality to that reasoning, and there were no exceptional circumstances to justify considering that information proffered to me such that would undermine the reasoning of the IAA.

3. With regard to irrelevant material, again it is trite to say that, in these circumstances, “irrelevant material being considered” means that there is material upon which the IAA is prohibited from considering, yet notwithstanding the prohibition, the IAA has still considered that material.  There has been no identification of any such material here. 

4. Therefore, when one looks at the matter, as I have, I cannot identify any error of law which would amount to a jurisdictional error. 

5. This was a show cause application.  It seems to me that the Applicant has not shown cause, as there is nothing that the Applicant could point to that shows that any jurisdictional error could be established. 

6. In those circumstances, I dismiss the application with costs in the sum of $3,737.00. I will make the name change for the First Respondent as well.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:     9 June 2020