DZX17 v Mnister for Immigration

[2018] FCCA 1672

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZX17 v MNISTER FOR IMMIGRATION & ANOR [2018] FCCA 1672

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)(a), 36(2)(aa)

Federal Circuit Court Rules 2001, 13.03C(1)(e)

Applicant: DZX17

First Respondent:  MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:  IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 879 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

There being no appearance by or on behalf of the Applicant

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Application filed on 6 September 2017 and the Amended Application filed on 28 November 2017 be dismissed.

2. That the Applicant pay the First Respondents costs fixed in the sum of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 879 of 2017

DZX17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 3 August 2017, the Immigration Assessment Authority (“the IAA”) affirmed a previous decision of the delegate for the Minister, not to grant the Applicant a protection visa.

2. On 6 September 2017, the Applicant DZX17 applied to this Court to have that decision reviewed. 

3. The background to the matter is this.  The Applicant was a Hindu Tamil from the Vavuniya district in the northern province of Sri Lanka.  He is a single male and he had lived in an area called Mullaitivu until he was aged about 10 before the family them relocated to Vavuniya.  He said that his father would go back to Mullativu from time to time.

4. In about 2002, the Applicant went to his father’s village and lived there for about two years.  There is some controversy about this because he did say that he worked with his uncle at his shop selling petrol, kerosene and oil for those two years however later on, he has said that his only employment was with his father, who was a fisherman and he sold the fish.  Nevertheless, such an inconsistency is of not of much moment.

5. He claimed that the authorities in Vavuniya were suspicious of the father and that the father was interrogated and beaten by them many times.  He said that in 2005, Crime Investigation Department (“the CID”) officers came to his home and took the father to a camp.  The father was beaten and sustained injuries to his chest and kidneys. 

6. He said that his father’s health deteriorated and he was hospitalised in March 2008.  On 22 March 2008, the father passed away due to cardiac arrest and renal failure.  Notwithstanding it was some three years later, the Applicant still blames the beating that the father took at the hands of CID for the father’s death.

7. The Applicant then, as the eldest person, became head of the house and he would pass by the CID camp regularly on his way to and from work after the father’s death.  Because of this, he said that he was questioned by CID officers whenever he went past.  He said on 23 November 2009, he sponsored the release of his paternal uncle and the uncle’s family from a displaced person’s camp.  The CID questioned him six months later about why he had sponsored their release. 

8. In 2010, the Applicant said that he was taken by the CID on his way home from work and detained all night and not released until about 12 noon the next day.  Again, he was questioned about why had arranged the release of his uncle from the camp.  He said that he was mistreated during his time under effective arrest by the CID.  For the following 18 months, the Applicant said that the CID looked for him at his house.  He hid or he stayed somewhere else when he became aware that they were coming to check for him. 

9. On 2 September 2012, the Applicant departed Sri Lanka illegally by boat and travelled to Australia.  He said that since he has been in Australia that certain incidents have happened. 

10. Firstly in late 2015, two unidentified people visited the Applicant’s family home and made threatening gestures towards the family including making enquiries about the Applicant’s whereabouts.  Those men wore civilian clothes and spoke in Sinhalese.

11. In early 2016, the Applicant claims three identified people including one man from the previous visit, came to the family home and enquired about the Applicant.  They attacked the Applicant’s brother and caused him injuries which required stitches to the head.

12. The same Sinhalese man and his associates have since threatened the Applicant’s sister when she was travelling to and from school, and told his mother that the sister will be attacked and kidnapped if they are not told where the Applicant is.  

13. The Applicant claims that if he is returned to Sri Lanka then he will be the subject of serious harm from these persons because of an imputed association with the Liberation Tigers of Tamil Eelam (LTTE) and due to his ethnicity.

14. The IAA assessed all of those matters in quite lengthy detail.  In the end the IAA was satisfied that the Applicant’s father did come to the adverse attention of the CID.  The IAA was satisfied that the father was mistreated.  The IAA was not satisfied because of the length of time between the last beating and the death of the father, that the beating had been the cause of death.  The IAA were satisfied that the Applicant, having assumed the role in effect of head of the house, did assume a status that would cause the CID to have asked him questions and even have taken him overnight to ask questions but that was really about all that the IAA could accept of the Applicant’s story. 

15. The IAA said at paragraph 22 of their reasons:

    … Given the applicant continued to reside and work in the local area, I have considerable doubt that if the CID had been looking for him they would not have engaged in more aggressive searching methods and questioned his neighbours.  I consider that the activities of the CID described by the applicant during this period are more consistent with routine monitoring, particularly in the context of the applicant adopting changed work patterns which would have reduced the frequency of his travel past the CID camp.  While I accept that the CID may have visited his home on a couple of times over the many months, I am not satisfied they did so with adverse intentions towards the applicant or because they considered him to hold a profile for LTTE involvement.  I am satisfied the applicant was not of any interest to the Sri Lankan authorities, including the CID, for imputed LTTE involvement or because he was otherwise considered a security or political threat, at the time of his departure from Sri Lanka.

16. The IAA accepted that, because of the experience that the Applicant had had at the hands of the authorities, he would be concerned about his future treatment should he return to Sri Lanka.  In this respect, the IAA relied very heavily then upon country information including an updated DFAT report which had been published in January 2017.  That report, in effect, said that there had been a decreasing militarisation and monitoring trends at current times and that people are not being systematically targeted and subjected to serious harm because of their race and/or area of origin.

17. The IAA then looked at the claims about the harassment and mistreatment of family members after his departure to Australia.  The IAA noted that the Applicant specified the visit that occurred in late 2015 when two unidentified men visited the family home.  The Applicant stated that the men spoke in Sinhalese and they wore civilian clothing and one of them was suspected of working for the CID. 

18. During the visit, they threatened his mother but ran away when neighbours started to make a lot of noise.  The Applicant was asked by the delegate in his interview how the men could threaten his mother when they spoke Sinhalese and he responded by saying that the threats consisted of being armed with small guns.  The IAA expressed considerable doubt that if the men were linked to the Sri Lankan government or the CID that they would have been scared off by neighbours making some noise. 

19. Similarly, with the allegation of people coming in 2016, the story was given some colour by saying that both his brother, who was injured and his sister, have now opted to reside with in-laws and other relatives as a result, but the IAA noted in paragraph 27:

    … However, in circumstances where the family members could not understand the language used by the men and they were not recognised or identified by their clothing and the effect of noise from neighbours during the visit in 2015, I am not satisfied that the men were affiliated with the Sri Lankan government or that one of them worked for the CID…

20. That is consistent with the finding that the IAA had earlier made that the Applicant did not hold a profile for LTTE involvement at the time of his departure from Sri Lanka.  The IAA was not satisfied that the men were making any threats or enquiries in relation to the Applicant’s whereabouts.  The IAA noted that notwithstanding all of this, the Applicant’s remaining brother and his mother have stayed in the house and there has been nothing that has occurred subsequently. 

21. The delegate had expressed that doubt as well to the Applicant as to why the remaining brother would be excluded.  The Applicant explained that this was because his brother was studying at the time.  That was an explanation that did not really hold much merit at all. 

22. Therefore, when looking at all of those matters, the IAA was not satisfied that the Applicant had any sort of adverse profile.  It was noted by the IAA that the Sri Lankan law prohibits discrimination based on race, sex, gender, disability, language or social status and also that the Applicant had been employed and others were making their livelihood within the family. 

23. Given all of those matters, the IAA said at paragraph 30:

    … Having regard to the family’s assets including access to farming resources, his education, work experience and personal attributes, I am not satisfied the applicant would not be able to earn an income on his return to Sri Lanka, such that he could not subsist.

24. The Applicant also claimed that he would face harm on return to Sri Lanka as a returned asylum seeker.  Again, the IAA relied heavily on the DFAT report and other country information that really suggested that whilst the Applicant may be subjected to the laws of the country, looking at illegal departees, that the most common way in which such matters are dealt with are through fines and if there is imprisonment there is a very short period of imprisonment before the fine is levied.  The IAA said at paragraph 36:

    I accept the applicant departed Sri Lanka illegally as a passenger on a boat.  I accept that should he plead guilty he would be fined and would then be free to go.  I am not satisfied that, having regard to this discretion coupled with the country information in the referred materials, that indicates the ability to pay the fine by instalment, a financial penalty would amount to economic hardship to the applicant giving rise to serious harm.

25. The IAA noted that returnees who plead not guilty will, in most cases, be immediately granted bail by a magistrate and released on the basis of assurity and will rarely be subject to any conditions in relation to the bail or any general requirement to report to police or police stations between court attendances.  There was nothing before the IAA that suggested that anything that would happen would amount to serious harm. 

26. The conclusion then was that the Applicant did not meet the criteria of the definition of refugee in s.5H(1) of the Migration Act 1958 (Cth) (the Act) and does not meet the requirements under s.36(2)(a).

27. The IAA then turned to complimentary protection assessment and really, given what findings the IAA had made in relation to the refugee aspect, found at paragraph 53 that:

    Accordingly, I am not satisfied there is a real risk the applicant will face a death penalty, arbitrary deprivation of life, torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment, including as a result of conditions he may face as a necessary and foreseeable consequence of being returned to Sri Lanka as an illegal departee.

28. Therefore, the Applicant did not meet the criteria in s.36(2)(aa) and on that basis the IAA affirmed the decision not to grant the protection visa.

29. The Applicant filed an originating application and, after appearing before Registrar Belcher on 3 October 2017, filed a further originating application or an amended originating application on 28 November 2017.  The grounds of that application are this.  Ground one:

    The IAA has committed jurisdictional error in my case. It has declined its jurisdiction in my case as it has failed to make a finding/proper evaluation or provide adequate explanation, as the IAA is required by the law, on my central refugee claims although I have submitted reliable evidence to substantiate my central refugee claims.

30. Ground two:

    Some findings, inferences, conclusions and reasoning of the IAA being occurred in the absence of evidence and/or supporting materials.

    A reasonable IAA reviewer might reasonably arrive at a divergent conclusion on all the information and evidence before the IAA. 

31. Then there is a note:

    These are my grounds of review and particulars at this stage and I will put all my grounds and particulars after I have obtained a Barrister’s opinion on the IAA’s decision.

32. Nothing further has been filed by the Applicant.  Registrar Belcher’s order was that submissions be filed at certain times before the hearing.  Registrar Belcher had set the hearing down for 20 March this year, before me.  It became evident at the beginning of the year that such a date was not going to be able to be utilised by me for the hearing of this matter so on 6 February 2018, my Associate sent to both the Applicant and the Respondent Minister, an email which reads:

    Good Afternoon,

    Please be advised due to changes in the diary this matter will no longer be listed at 10.00am on 20 March 2018.  The matter will now be listed for hearing at 10.00am on 11 June 2018.

33. There was no notification received by Chambers to the effect that the email had not gone through and the matter just proceeded.  As I say, the Applicant did not make any further filings in this matter. 

34. I am informed that some three weeks or so ago, which would put the matter in mid to late May, the Applicant telephoned the solicitors appearing for the Minister.  The Applicant informed the solicitor that he was moving from Brisbane to Wagga Wagga.  He told the First Respondent’s solicitor that he wanted the matter transferred to Wagga to be heard.  The solicitor, quite rightly, said that that was not a decision for her to make and it was a matter that the Applicant needed to contact the Court about.  Nothing more was said or done as I have earlier recounted.

35. The solicitor also reminded the Applicant that the matter would be on for hearing today at 10.00am and that if he did not appear, the Applicant would be wanting to have the Court dismiss his application and order costs.  There was nothing more done. 

36. The matter has come on for hearing today.  The interpreter has turned up.  There was no notice given to the Court that the Applicant would not be here or arrange some form of appearance, including an appearance by telephone. 

37. Given the history of the matter, it is a matter that I am of the view should be disposed of by the Court pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) and the matter ought be heard on the merits.

38. The grounds of the application do not reveal any jurisdictional error.  The first ground is really an attempt at an impermissible merits review.  The Applicant says that he has submitted reliable evidence to substantiate his central refugee claims.  Yes, he has submitted evidence.  The IAA has looked at that evidence and not concluded that the Applicant has met the criteria of either the refugee definition or the complimentary protection criteria.  That is a matter where such a conclusion was within the province of the IAA.  To delve into anything further, as alleged by ground one, would mean conducting an impermissible merits review. Therefore, there is no substance in ground one.

39. I then turn to ground two.  

40. Ground two is really a corollary that suggests that some findings, conclusions etcetera, occurred in the absence of evidence and/or supporting materials and then there is this statement:

    … A reasonable IAA reviewer might reasonably arrive at a divergent conclusion on all the information and evidence before the IAA.

41. That may be so but that does not mean that there has been a jurisdictional error.  A jurisdictional error will only arise in those circumstances where an IAA reviewer could not arrive at any different conclusion to that which the Applicant claims.  In other words, the conclusion that the IAA has come to could not have been open on the evidence. 

42. The manner in which this ground has been framed, acknowledges that such a conclusion was open; just that one would have thought that someone would have come to a different conclusion.  As attractive as that may sound, it does not in any way show that there has been a jurisdictional error.  As has often been said in these cases, it is not what should have been the conclusion made by the IAA, it is what could have been the conclusion made by the IAA.  There is nothing to suggest that the conclusion in this case could not have been made by the IAA.  Therefore, I find no jurisdictional error. 

43. Having regard to all of the matters and having thoroughly assessed the IAA’s reasons, I am of the view that there has been no jurisdictional error.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 18 October 2018