DYT16 v Minister for Immigration

[2018] FCCA 1410

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYT16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1410

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority failed to consider the evidence and claims of the applicant – whether the Authority erred in its assessment of the applicant’s LTTE involvement – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA

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)

Applicant: DYT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3608 of 2016

Judgment of: Judge Smith

Hearing date: 15 May 2018

Date of Last Submission: 15 May 2018

Delivered at: Sydney

Delivered on: 15 May 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr L Dennis, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3608 of 2016

DYT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. These reasons are a written version of the reasons given by me at the conclusion of the hearing of this matter and before pronouncing final orders. They were interpreted for the benefit of the applicant at the time. Since then, upon being notified that the applicant had lodged an appeal from my orders, I have prepared these written reasons (with some minor amendments) from the transcript. I am not aware of any statutory or common law obligation on the Court to provide written reasons in addition to oral reasons and, given the nature and extent of the workload on this Court, it is not reasonably practical to do so in the absence of an appeal. However, it is my practice to prepare written reasons such as these in order to assist the appeal process which, in turn, assists in the integrity of proceedings in this Court.

2. The applicant is a citizen of Sri Lanka who arrived in Australia as an offshore entry person on 2 October 2012.  The change of legislation in the middle of 2013 meant that he became known as an unauthorised maritime arrival and was not able to make a valid application for a protection visa unless the Minister exercised his discretion to allow him to do so.  The Minister did exercise that discretion in favour of the applicant and on 9 June 2016 the applicant lodged an application for a protection visa. 

3. The claims made in support of that application are summarised at [4] of the Immigration Assessment Authority’s decision which I adopt for the purpose of this judgment and set out below (without alteration):

   …

   •The applicant was forcibly taken by the Liberation Tigers of Tamil Eelam (LTTE) at the age of 17 years;

   •The applicant left Sri Lanka in 2006 and again in 2008 due to fear of the LTTE and Karuna Group;

   •The applicant first encountered problems with the Sri Lankan military authorities upon his return from Saudi Arabia in April 2011, when he was beaten and interrogated due to imputed support of the LTTE. Following this incident, the applicant was directed to report to the authorities periodically;

   •The Sri Lankan authorities came to the applicant’s home monthly to harass him and his family. On occasions, the authorities damaged or stole property belonging to the applicant;

   •In June/July 2011 the authorities suspected the applicant was involved with the LTTE in connection with a shooting incident in a nearby area, which resulted in increased monitoring;

   •Since arriving in Australia the Sri Lankan authorities raided the applicant’s house and confiscated the applicant’s identity documents and photos. The applicant’s wife is now required to regularly report to the authorities;

   •The applicant is wanted by the authorities and his name appears on a military wanted list;

   •The applicant fears continued harassment or serious harm from the Sri Lankan authorities due being a Tamil from the Eastern Province who illegally departed Sri Lanka, travelled to Australia and claimed asylum in a western country.

4. On 25 October 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. In light of the delegate’s reasons for that decision and all of the circumstances I have outlined above, the decision became a fast track reviewable decision. That decision was referred to the Authority for review pursuant to pt.7AA of the Migration Act 1958 (Cth). The Authority made its decision on 2 December 2016 and affirmed the decision of the delegate. The applicant now seeks judicial review of the Authority’s decision.

5. The applicant appeared unrepresented at the hearing and argued that the Authority had not considered his claim that he was required to report to the Army in Sri Lanka every week after he had returned from Saudi Arabia.  However, it is clear from [22] of the Authority’s decision that the Authority did consider that and the argument raised by the applicant orally today therefore has no merits. 

6. There are five grounds in the application filed by the applicant.  Before turning to those grounds, it is necessary to set out a brief summary of the Authority’s reasons for its decision.  An accurate summary is found at [6] through to [9] of the first respondent’s written submissions which I adopt for the purpose of this judgment and set out below: 

   6.The IAA rejected the applicant’s claims on the basis of adverse credibility findings and because they did not give rise to a real chance of serious harm or a real risk of significant harm. The IAA made the following key findings:

   (a)he was forcibly recruited by the LTTE but he was not a member nor did he have any further interactions with them;

   (b)he did not have any specific interactions with the Karuna group;

   (c)upon return from Saudi Arabia in 2011, he was questioned about LTTE links and then released but was not otherwise harmed;

   (d)he was subject to some reporting due to his time abroad rather than any imputed connection to the LTTE;

   (e)he was not of any ongoing interest on account of the shooting incident;

   (f)the authorities did not raid his house, confiscate identity documents and require his wife to report to them; and

   (g)he was not on a military ‘watch list’.

   7.In light of these findings, country information and the applicant's profile, the IAA did not accept that the applicant would face harm on account of any imputed support of the LTTE, his Tamil ethnicity; nor as a failed asylum seeker. In relation to the applicant's illegal departure, the IAA found that any experiences or penalties on return would not amount to serious harm and that the applicant would face ‘laws of general application’.

   8.For those reasons, and considering the applicant’s claims cumulatively, the IAA found that the applicant did not meet the requirements of the definition of ‘refugee’ in subsection 5H(1) of the Act.

   9.In the context of complementary protection, the IAA made specific findings addressing the applicant's claims to fear significant harm on account of his Tamil ethnicity, any imputed support of the LTTE, and as a failed asylum seeker who departed illegally. The IAA concluded that the applicant's claims did not give rise to a real risk of significant harm.

   (Emphasis in original and references omitted)

7. The first ground in the application is that the Authority “failed to discern a Convention[1] nexus namely the Applicant will be imputed with the LTTE profile for working with the LTTE”.  Properly understood, that ground is no more than an argument that the Authority was wrong to find that the applicant would not be imputed with an LTTE profile, and as such, it does not constitute anything more than an attack on the merits of the decision.

   [1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).

8. It is clear from the Authority’s decision that it did consider the claim concerning the LTTE and the possibility that the applicant might be imputed with a political opinion in light of his earlier connection with them.  At [13] of its reasons, the Authority noted that it accepted that the applicant had been taken by the LTTE in 2003 but that he had escaped from custody.  However, given the limited interaction in 2003 and lack of engagement with the LTTE after that, the Authority found that the applicant was not a member of the LTTE and that his interactions with the LTTE ended at the time of his escape.

9. At [22] to [24] of its reasons, the Authority considered in some detail the question of whether the applicant might be perceived to have been a former member of the LTTE or a supporter of it.  Further, at [25], it repeated its conclusion that the applicant was not a person with a profile with any imputed links to the LTTE or indeed any other group: see also [29] of the Authority’s reasons.

10. Thus, it is not true to say that the Authority did not perceive any Convention nexus in connection with the LTTE, but rather as a matter of fact, that the applicant would not be seen to have had any connection with the LTTE such as to give rise to an imputation of a political opinion in favour of that organisation or contrary to the government.  For those reasons, the first ground is rejected.

11. The second ground is that the Authority “failed to consider persecution in the form of beatings by the authorities”.  The applicant claimed that he had been beaten by the authorities when he returned from Saudi Arabia in 2011.  The Authority accepted at [21] of its reasons that the applicant had been asked questions on his return from Saudi Arabia in 2011 but found that he had embellished the other circumstances concerning the interests of the authorities in him at that time and did not accept that the applicant was beaten or otherwise mistreated by the authorities.

12. In light of those clear findings it cannot be said that the Authority failed to consider the claim of persecution in the form of beatings.  Again, what the ground really asserts is that the Authority erred by failing to accept that the applicant had been beaten in April 2011.  That is an inquiry into the factual finding which is not open on judicial review in this Court.  The second ground must be rejected.

13. The third ground is that the Authority “did not consider the employment of the Applicant”.  It is difficult to understand what this ground means.  I cannot discern any claim made by the applicant in support of his protection visa application in connection with any employment or lack thereof.  In those circumstances, this ground too must be rejected.

14. The fourth ground is that the Authority “did not consider the frequent visits by the authorities looking for the Applicant”.  The Authority, however, did consider the monitoring of the applicant by the authorities and what might be termed harassment of him.  It accepted, for instance, at [22], that the applicant had had some reporting requirements imposed upon him and it considered the claim in connection with the shooting incident at [23], but did not accept at [24] that there were ongoing visits to the applicant’s home or a requirement that the applicant’s wife regularly report to the authorities.  For those reasons, ground 4 must be rejected.

15. Ground 5 is that the Authority “misapplied the law in that it analysed the applicant case on the footing that it was long ago that the Applicant had dealings with the LTTE and therefore he will not be persecuted”.  The applicant argues “that any dealings with the LTTE no matter when will give rise to persecution at the hands of the Sri Lankan authorities”.  That is an assertion of fact which may, if accepted, have led to the grant of a protection visa to the applicant.  However, clearly enough the Authority did not accept that proposition and it gave a number of reasons as to why it did not accept it.

16. The Authority noted, for example, at [21] that the applicant had been asked questions about his LTTE involvement but was subsequently released.  It noted in [22] that while the applicant was required to report on a weekly basis, this was in the context of a particular attitude towards the LTTE by the authorities at that time.  At [23] it noted that the applicant’s own evidence was that his friend with LTTE links had been arrested in connection with the shooting incident.  All of those matters show that the Authority was concerned not simply with the passage of time since 2003 when it found that the applicant had last had any contact with the LTTE, but also the particular context and details of the later interest shown by the authorities in the applicant.

17. Those considerations then led  the Authority to find that the applicant did not now have any profile or any connection with the LTTE.  I am satisfied that those considerations provide a logical basis for that conclusion.  For that reason, in spite of the applicant’s earlier connection with the LTTE, it was open for the Authority to conclude that he did not have a profile that might bring attraction to him by the authorities.  For those reasons, the fifth ground in the application is rejected.

Conclusion

1. I am not satisfied that the Authority’s decision is affected by jurisdictional error.  In light of that, I must dismiss the application. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       12 June 2018