DZT16 v Minister for Immigration

[2019] FCCA 3113

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZT16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3113

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether there was an integer of the applicant’s claims the Authority failed to consider – whether the Authority misunderstood or misapplied the relevant law – whether the Authority’s adverse findings were open – disagreement with the Authority’s reasons inviting merits review – whether the Authority failed to apply a real chance test – no jurisdictional error made out – amended application dismissed.  

Legislation:

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

Cases cited:

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

Applicant: DZT16

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3658 of 2016

Judgment of: Judge Street

Hearing date: 30 October 2019

Date of Last Submission: 30 October 2019

Delivered at: Sydney

Delivered on: 30 October 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Saunders
DLA Piper

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Grant leave to the first respondent to file in Court the affidavit of Stefanie Giourgas affirmed 29 October 2019.

3. The oral application for an adjournment is refused.

4. The amended application is dismissed.

5. The applicant pay the first respondent’s costs fixed in the amount of $3,300.00.

DATE OF ORDER: 30 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3658 of 2016

DZT16

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”) under Part 7AA of the Act made on 8 December 2016 affirming a decision of the delegate not to 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 a particular village in the Eastern Province and arrived in Australia as an unauthorised maritime arrival on 20 September 2012. The applicant identified having grown up in a Sinhalese area and having been subjected to harassment and having spent four years living in a camp. The applicant was also the subject of paramilitary and army round-ups and was beaten on these occasions.

3. In 2004 to 2008, the applicant worked in a bank in a particular location, and the day before the elections on 9 May 2008, there was a bomb blast at a shop in close proximity to the bank. The applicant fears that because he is a Tamil and a supporter of the Tamil political parties he could be accused by the police of being responsible for the bomb. The applicant fears the authorities will use him as a scapegoat for the bomb blast and he will be captured and killed on return. The applicant also fears Sinhalese people affected by the bomb blast or their relatives may attack him in retribution. The applicant did not return to work and alleged he went into hiding and stayed with a relative until he travelled to Israel in October 2010 and then returned from Israel in 2011.

4. The applicant also campaigned for the Tamil National Alliance (“TNA”) in the September 2012 elections. The applicant further alleges that, in September 2014, unknown Sinhalese people visited the home of his father-in-law and asked about the applicant’s whereabouts.

5. The applicant fears he will be targeted on returned to Sri Lanka and harmed by the authorities or Sinhalese people because he is Tamil and implicated in the 2008 bomb blast. The applicant also fears harm by reason of being an illegal departee and a failed asylum seeker.

6. On 25 October 2016, a delegate found the applicant did not meet the criteria for the grant of a protection visa.

7. By letter dated 1 November 2016, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. No such documents were provided to the Authority.

8. The Authority in its reasons identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims.

9. The Authority was not satisfied that the applicant’s fear that he will be accused of being involved in the 2008 bomb blast and arrested and harmed by the authorities is well founded. The Authority in that regard referred to the absence of attempts to pursue the applicant and interview him, as well as the fact that the applicant was able to obtain a passport in 2009 and travel to and from Israel in 2010 to 2011 without apparent difficulty and attracting adverse attention at the airport.

10. The Authority, taking into account country information, found it implausible that the applicant was able to avoid detention by staying with relatives in the same village and travel overseas in 2010 and 2011. It was in these circumstances the Authority was not satisfied the applicant was suspected of involvement in the 2008 bomb blast by the Sri Lankan authorities or that he will face any harm on return to Sri Lanka.

11. The Authority found there is not a real chance the applicant will be harmed by Sinhalese people affected by the bomb blast, or their relatives. The Authority referred to the fact that the applicant did not experience past harm on that basis and took into account the visit to the applicant’s father-in-law in 2014.

12. The Authority accepted that TNA supporters were harassed by opposition parties. The Authority, however, found this does not give rise to a real chance of any harm should the applicant return to Sri Lanka. The Authority, taking into account country information regarding improvements in the electoral process, was not satisfied there is a real chance the applicant will face serious harm on the basis of his role in the election in 2012, nor if he were to undertake similar political activities on return to Sri Lanka.

13. The Authority was not satisfied that the claimed visit to the applicant’s father-in-law in 2014 indicates that the applicant has a profile with the authorities or Sinhalese people that would attract adverse attention on return. The Authority took into account that there is no suggestion that the people threatened the applicant’s father-in-law or made threats of harm to the applicant. The Authority did not accept that the visit was linked to the 2008 bomb blast. The Authority also took into account the implausibility of people having any interest in the applicant given the time that had passed.

14. The Authority accepted the applicant had been living in the eastern province of Sri Lanka during the civil war and was subject to regular round ups and mistreated. The Authority accepts that the applicant lived for a period of four years in a refugee camp. The Authority took into account that since the cessation of hostilities in 2009 the security situation in Sri Lanka has improved. The Authority referred to country information in that regard.

15. The Authority took into account that the applicant did not have any links with the Liberation Tigers of Tamil Eelam (“LTTE”) and has not been involved in any activities that country information indicates would cause him to be of concern to the authorities now.

16. The Authority referred to the improvement in the security situation since the applicant left in 2012 and other country information and it was not satisfied there is a real chance of serious harm arising for the applicant as a Tamil. That finding in paragraph 14 was clearly a finding that subsumed the applicant’s claim to fear harm from the authorities or Sinhalese people because he is a Tamil.

17. The Authority accepted that the applicant departed Sri Lanka illegally and it is likely that he will be questioned by the police at the airport and charged under the Immigrants and Emigrants Act 1949 (Sri Lanka). The Authority was satisfied the applicant would only face a brief period in detention and took into account the poor prison conditions. The Authority did not consider the brief period in detention would constitute the necessary level of threat to the applicant’s life or liberty, or to significant physical harassment or ill-treatment under s 5J(5) of the Act or otherwise amount to serious harm for the applicant.

18. The Authority found the questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine of the Immigrants and Emigrants Act 1949 (Sri Lanka) would not constitute a threat to the applicant’s life or liberty, or to be significant physically harassment or ill-treatment under s 5J(5) of the Act or otherwise amount to serious harm.

19. The Authority found the Immigrants and Emigrants Act 1949 (Sri Lanka) is law that is not discriminatory on its terms and found that the law was not selectively enforced or applied in a discriminatory manner. The Authority found that the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act 1949 (Sri Lanka) will be the result of a law of general application and does not amount to persecution for the purpose of s 5H(1) and s 5J(1) of the Act.

20. The Authority was not satisfied there is a real chance the applicant will face harm as a returning failed Tamil asylum seeker. The Authority found the applicant did meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant does not meet the criteria in s 36(2)(a) of the Act.

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

Before this Court

1. These proceedings were commenced on 20 December 2068. On 4 May 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit, evidence and submissions. The applicant did file an amended application on 26 June 2017.

2. On 11 February 2019, this Court made orders fixing the matter for hearing today. The order was expressed in terms “The matter is fixed for hearing on 30 October 2019 at 2:15 pm in Court 9.1 at 80 William Street Sydney”. Prior to the hearing on 18 October 2019, the first respondent forwarded to the applicant’s residential address and email address the communication reminding the applicant that the matter is listed for hearing, specifying the date and time and describing the matter as a hearing.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant confirmed he understood the nature of hearing as explained by the Court.

4. Upon the conclusion of the evidence, the applicant indicated that he wished to seek an adjournment on the basis that he did not appreciate the matter was listed for hearing and he wanted to obtain a lawyer and said he could do so within two weeks. The Court sought to ascertain from the applicant why he had not had ample time to obtain a lawyer since the making of the order on 11 February 2019. The applicant’s explanation in relation to the failure to obtain a lawyer was not satisfactory. Moreover, it is apparent that these proceedings were commenced on 20 December 2016 and that there was no lawyer on the record.

5. The applicant referred to the amended application that was lodged on 26 June 2017 and indicated that his lawyer had not been the same. There was no lawyer identified on the record in respect to the amended application filed on 26 June 2017. There was no apparent ambiguity in the terms of the order made on 11 February 2019. No earlier notice than an adjournment application was given to the first respondent.

6. The first respondent opposed the adjournment and read in that regard an affidavit in respect of the service of the material being the submissions upon the applicant in a covering letter reminding the applicant of the hearing date. The Court does not regard the applicant’s explanation for the adjournment as being satisfactory, nor are there merits of the application in relation to the grounds of sufficient strength to warrant an adjournment in the interests of the administration of justice.

7. Taking into account all the circumstances including the lack of merit in the substantive application, the unsatisfactory explanation as to why no lawyer has not earlier been obtained and the ample opportunity the applicant has had to do so, and the lack merits in the amended application, the Court is not satisfied an adjournment was warranted in the interests of the administration of justice. It is for these reasons the Court made an order that the oral application for an adjournment is refused.

8. From the bar table, the applicant maintained that the Authority did not take into consideration the threat to his life from police and the Sinhalese public. That submission, in substance, mirrors ground one in the application. The Authority in its reasons clearly identified in paragraph 4, in the last dot point, the applicant’s claim to be at harm from the authorities and the Sinhalese people. It is apparent that the Authority carefully considered the applicant’s claims and had an active intellectual engagement with the same.

9. In respect of the applicant’s concern of being harmed by Sinhalese people or their relatives because of the bomb blast, as a result of the role he played in the election, the Authority in paragraph 11 expressly referred to the applicant not having a profile with the authorities or Sinhalese people that would attract adverse attention on return.

10. The Authority’s reasons must be read as a whole. On a fair reading, the finding, as referred to above, in paragraph 11, that the Authority is satisfied that there is not a real chance of serious harm arising for the applicant as a Tamil was an adverse finding, subsuming the applicant’s claim in respect of a fear of harm from Sinhalese people and/or the authorities. No jurisdictional error arises by reason of anything said by the applicant from the bar table.

The grounds

1. The grounds in the application are as follows:

   Ground 1 - The IAA failed to consider an essential integer of the applicant's claims clearly made out on the facts. See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (20041 FCAFC 263

   Particulars

   a. The applicant claimed that he is a Tamil (41 who grew up in a Sinhalese area [41 and that his family was subjected to harassment by the Sinhalese police [4].

   b. The applicant claimed that "Sinhalese colleagues suspected him of being involved" in a bomb blast [4].

   c. The IAA accepted at [81 that "Sinhalese people made comments to the applicant at the time" when the bomb blast took place, though what the IAA accepted appears to be different to what was claimed (i.e. “Sinhalese colleagues suspected him of being involved” in a bomb blast (i.e. “Sinhalese colleagues suspected him of being involved” in a bomb blast), the IAA nevertheless did consider future harm the applicant would face due to the “Sinhalese people affected by the bomb blast”.

   d. The IAA further gave consideration to an integer of the applicant's claim at [11] (i.e. the 2014 incident implicating that the applicant has a profile with the authorities or the Sinhalese people).

   e. It is clear that the applicant's claims include fear of being harmed from "Sinhala colleagues", "Sinhala people" and "Sinhala police".

   f. The IAA failed to consider the following integers of the applicant's that clearly arise on the facts,

   i. The real chance / real risk of serious and or significant harm the applicant faces due to the "Sinhala police" who have harassed the applicant and his family.

   ii. The real chance / real risk of serious and or significant harm the applicant faces due to the "Sinhala people" as the applicant claimed he resided in a "Sinhala area", implying Sinhalese were in the majority in the Sinhala area. As the applicant in numerous instances had problems with the "Sinhalese" the IAA was obliged to assess if the applicant faced harm from Sinhalese people who resided in the Sinhala area, where the applicant claimed the police who were Sinhalese harassed the applicant and his family.

   iii. The IAA was aware that the applicant resided in a Sinhala area and that the applicant and his family were subjected to harassment by the Sinhalese police. The applicant does not state that all persons residing in a Sinhala area were "Sinhalese policemen", however it would have been reasonable to infer that the "Sinhalese policemen" who harassed the applicant and his family were "Sinhalese people" residing in the Sinhala area where the applicant resided, hence the IAA ought to have assessed this claim which was made out on the facts.

   g. The applicant believes the interpreter who attended the SHEV interview did not correctly interpret the integer of the applicant's claim with regard to fear the applicant faced from the Sinhala people residing in the area.

   h. The applicant requires sufficient time to transcribe the relevant section of SHEV interview.

   Ground 2 - The decision is infected with the kind of error described in SZTAL and therefore no decision should be made until the High Court of Australia makes a final decision on this matter.

   Particulars

   a. The High Court of Australia is expected to deliver its decision shortly and this may affect the applicant's appeal, as at [31] the IAA states that though the applicant may be imprisoned there is no evidence of an "intention" to inflict severe pain or suffering or cause extreme humiliation, thereby indicating the applicant would not face significant harm.

   Ground 3 - It was not open to the IAA to state impliedly that the applicant had "low profile political involvement" [10] which caused the delegate to infer that there was no real chance that the applicant would face serious harm due to his role in the 2012 election / even if he were to undertake similar political activities upon return.

   Particulars

   a. The IAA accepted that TNA supporters were harassed by opposition parties in the 2012 elections.

   b. Though the IAA thereafter forms the view that the situation has generally eased across Sri Lanka [10], the IAA was of the view that the "2015 presidential elections was relatively orderly".

   c. The real chance / real risk test requires the assessor to assess future harm the applicant could face, hence a "relatively orderly" election does not appear to suggest that the elections in 2015 was free of violence [10].

   d. On the basis of the reasoning at [10] particularly the excerpt " ... but does not support ongoing harassment of people with low profile political involvement" it is submitted that persons who do not have a "low profile political involvement" may well be subjected to ongoing harassment, it is only people with low profile political involvement who are not subjected to ongoing harassment.

   e. The applicant claimed that he campaigned for the TNA in the September 2012 elections [4].

   f. On the basis of the reasoning at [10] the IAA forms the view that the applicant would not face harm as he fell within the scope of people with low profile political involvement.

   g. However the IAA did not assess the applicant's claim fully, the applicant's level of involvement could not have been assumed by the IAA to meet the profile of a person with low profile political involvement without having assessed this claim.

   h. The IAA had the power to request for information should there be any concern regarding the applicant’s level of political involvement.

   i. An individual who campaigned for the TNA during the election could well have engaged in political activities that went beyond the scope of a low profile political member / supporter.

   j. More details to be provided once the court book is made available to the applicant.

   Ground 4 - The IAA failed to apply the real chance test. In Minister for Immigration & Multicultural Affairs v Raialingam [1999) FCA 719 (3 June 1999) the Court held

   "When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against ii the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there was a "real substantial basis 'for the applicant's claimed fear of persecution.

Ground 1

1. In relation to ground 1, it is apparent that the Authority in its reasons took into account the applicant’s claim to fear harm from Sinhalese people and that the Authority took into account the applicant’s claim to fear harm from the authorities. The reference in the Authority’s reasons to the Sinhalese people and the authorities clearly include Sinhalese police on a fair reading of the Authority’s reasons. There was no integer of the applicant’s claims that the Authority failed to consider. The adverse findings were dispositive of the applicant’s claims. On a fair reading of the Authority’s reasons as a whole, no jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the Authority’s reasons expressly consider the treatment to which the applicant may be subjected as a result of the application of the Immigrants and Emigrants Act 1949 (Sri Lanka) and made adverse findings in relation to both the Refugee Convention and in relation to complementary protection.

2. There is no substance in the proposition that the Authority made an error of the kind described in the SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. The Authority both summarised the relevant law in paragraphs 5 and 6 of its reasons, as well as in paragraph 27, and the applicable law was a paginated annexure and incorporated into the Authority’s reasons. There is no basis to find that there any misapplication of the relevant law by the Authority. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the applicant seeks to disagree with the adverse finding by the Authority based on the applicant’s claims and evidence in country information, in the context of the reference to the visit to the applicant’s father-in-law’s home in 2014 and not accepting that the applicant has a profile with the authorities or Sinhalese people that would attract adverse attention on return.

2. That was an adverse finding that was logical and rational and open to the Authority for reasons given by the Authority. The proposition that it was not open to make the adverse finding, in substance, is a disagreement with the merits. This Court has no power to review the merits. The Authority identified, in that regard, that the people who had visited the father-in-law did not make any threats to the father-in-law or threats to harm the applicant.  The adverse finding by the Authority in that regard was logical and rational.

3. The applicant also disagreed with the adverse finding in relation to the role he had played in the 2012 election, addressed in paragraph 10 of the Authority’s reasons. The disagreement does not identify any jurisdictional error but rather invites merits review. Given the comprehensive reasons read as a whole there was no failure by the Authority to have an active intellectual engagement with the applicant’s claims and evidence in respect of his role in the 2012 election or in relation to the visit to his father-in-law. For the reasons given by the Authority as summarised above, the adverse findings in relation to the applicant’s claims were open and no jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, there is an assertion that the Authority failed to apply a real chance test. The particulars in support of ground 4 refer to the Authority’s reasons in paragraph 30 in relation to complementary protection, which do refer to there being reports of mistreatment of asylum seekers who have returned from Sri Lanka and that DFAT reports indicate that thousands of asylum seekers have returned to Sri Lanka since 2009 with relatively few allegations of torture or mistreatment. The Authority referred to the fact that the DFAT reports identify the risk of torture or mistreatment for the majority of returnees is low, including for those suspected of an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka).

1. The Authority expressly referred to the applicant not being a person of interest to the Sri Lankan authorities. The Authority had earlier referred to the applicant’s travel overseas via Colombo airport in 2010 and 2011. In these circumstances there is no basis to find that the Authority failed to apply the real chance test in determining whether or not the applicant met the requirements of the complementary protection provisions. The contention that it was not open to find that the applicant was not a person of interest to the authorities is a disagreement with the merits. In circumstances where the applicant had travelled overseas and returned using his passport without difficulty, as identified in the Authority’s reasons, the adverse findings cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged when ground 4 is made out.

2. Accordingly, the amended application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 30 October 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 28 November 2019