EBC17 v Minister for Immigration

[2018] FCCA 853

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 853

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority fell into jurisdictional error by failing to accept that the applicant’s relative was a member of the LTTE – whether the Authority failed to consider the position of the applicant in the reasonably foreseeable future – no jurisdictional error made out – amended application is dismissed.

Legislation:

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

Cases cited:

MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436

Applicant: EBC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2803 of 2017

Judgment of: Judge Street

Hearing date: 10 April 2018

Date of Last Submission: 10 April 2018

Delivered at: Sydney

Delivered on: 10 April 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser of counsel
On a direct access basis

Solicitors for the Respondents: Mr L Leerdam
DLA Piper Australia

ORDERS

1. Grant leave to the applicant to rely upon the amended application annexed to the submissions filed on 3 April 2018 and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2803 of 2017

EBC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 10 August 2017 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 arrived in Australia on 28 August 2012 as an unauthorised maritime arrival.

3. On 11 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. The applicant is a Tamil from the Batticaloa district in the Eastern Province of Sri Lanka. The applicant claimed to fear harm on the basis of his ethnicity, his imputed political opinions as a Tamil from the Eastern Province, his actual imputed political opinion arising from his involvement in activities in support of the Tamil United Liberation Front (“TULF”), his previous detention and questioning by the Sri Lanka authorities on suspicion that he was involved with the Liberation Tigers of Tamil Eelam (“LTTE”), his brothers and other relatives involvement in the LTTE, his illegal departure, and because he will be returning to Sri Lanka after seeking asylum in Australia.

5. The delegate referred to the applicant’s claims that he was pursued for his family links and because he campaigned for TULF. The delegate referred to many aspects in the applicant’s claim being implausible and being concerned in relation to inconsistencies. The delegate was not satisfied the applicant campaigned for TULF and had doubts about the applicant’s support for TULF. The delegate found that the applicant’s claim that he was pursued by unknown pro-government militant groups to be fabricated.

6. The delegate accepted the applicant had links to the LTTE up until 1990, and turned to consider whether those links would be known to the authorities. The delegate accepted the applicant had some relation to E and that E left Sri Lanka in 1990 after members of his immediate family were killed. The delegate found that the applicant’s claim that his past family links to the LTTE were not known to the authorities.

7. The delegate referred to having found that the authorities were unaware of the applicant’s family links to the LTTE and that there is no reason his low-level links to the LTTE, helping his brother prepare for meals for other LTTE members in or before 1990, and his relation to E, will come to the attention of the authorities now. The delegate found that the chance of the applicant’s past links coming to the attention of the authorities was remote.

The Authority’s Decision

1. Following the delegate’s decision, the Authority wrote to the applicant on 16 November 2016, identifying that the application for a protection visa had been referred to the Authority for review. The Authority’s letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions.

Information before the Authority

1. The applicant did in fact put on submissions dated 7 December 2016, which were expressly referred to and considered by the Authority. The Authority identified the background to the visa application and had regard to the information referred under s 473CB of the Act.

2. The Authority referred to the submission providing a statutory declaration which provided new claims regarding the applicant’s movements after his brother’s abduction in 1990. The statutory declaration that referred to the new claims submitted why the information was credible. The Authority referred to the applicant’s explanation but was not convinced that the information was merely clarifying inconsistencies. The Authority found the information adds to the basis on which the applicant’s claims were initially made before the delegate. The Authority referred to the applicant having had the assistance of legal practitioners and the process that occurred during the protection visa interview and was not satisfied there were exceptional circumstances to justify the consideration of the new information.

The Applicant’s claims

1. The Authority summarised the applicant’s claims and in particular referred to his older brother and another relative, E, being members of the LTTE. The Authority referred to E having left Sri Lanka in 1990 and going to Qatar, and the applicant’s brother had been abducted and was presumed dead. The Authority referred to the applicant saying that after his brother’s abduction, the applicant went into hiding and relocated to Colombo. The Authority referred to the applicant having been arrested while residing in Colombo and he returned to the Batticaloa district in 1994. The Authority also referred to the applicant’s alleged arrest in 2008 and being released the next day by the Sri Lankan authorities (“SLA”). The Authority also referred to the alleged involvement by the applicant in the provincial council elections in 2012, where the applicant and his family were warned to cease campaigning for TULF and threats were made against the applicant’s life.

2. The Authority summarised the relevant law. The Authority accepted that the applicant’s older brother was a member of the LTTE and that in 1990 he was abducted by an unidentified armed person or militant group. The Authority accepted in 1997, as over a year had lapsed since the applicant’s older brother had gone missing, that the applicant’s brother was officially declared as deceased by the Sri Lankan authorities. The Authority referred to evidence being provided in relation to the brother’s death.

3. The Authority did not however, accept the applicant’s relative E was a member of the LTTE. The Authority made reference to the entry interview and that the applicant was asked whether he or any members of his family had been associated or involved with any political groups or organisations. The Authority noted that at that interview the applicant provided details about his brother’s LTTE membership but made no reference to anyone else. The Authority noted that the applicant did provide details of E’s involvement in both his protection visa applications, but found those details to be vague and unconvincing. The Authority found the applicant made no mention of how E was related to him, nor was there any specification that E’s position in the LTTE beyond the generalised assertion of being a “high level member”.

4. It was in those circumstances the Authority did not accept that the applicant’s familial connections to the LTTE led to his family being “well-known”. The Authority found the applicant’s claims to be exaggerated and unsubstantiated. The Authority accepted the applicant’s older brother was an LTTE member. The Authority was not satisfied that this fact alone formed a credible basis to the applicant’s claim that his family were then considered to be “well known”.

5. The Authority referred to the applicant having departed to Colombo after his brother’s abduction in or around 1991. The Authority noted that at the entry interview, whilst the applicant referred to the abduction of his brother, he made no mention that this event made him go into hiding. Reference was also made by the Authority to the applicant’s claim that while residing in Colombo he was under threat from armed militant groups from his village and they would watch his house. The Authority noted these claims were not provided by the applicant in his previous interview with the Department, nor were they included in his two protection visa applications.

6. Having regard to the applicant’s evidence as a whole, including the inconsistencies in the applicant’s evidence, as well as the new claims and the country information, the Authority was not satisfied the applicant’s claims are true. The Authority did not accept that in 1990, after the applicant’s brother was abducted. that the applicant went into hiding. The Authority did not accept that the applicant’s relocation to Colombo was in any way associated with his brother’s abduction. The Authority did not accept that in Colombo the applicant was watched and his movements noted by any armed militant groups.

7. The Authority found the applicant’s evidence in relation to his activities in support of the TULF to be vague and unconvincing. The Authority did not accept the applicant’s explanation that to avoid militant groups he undertook the activities at night. The Authority found the applicant’s evidence regarding his abandonment of his support to TULF since his arrival in Australia surprising when considered against his claims that he had previously supported TULF for at least 18 years prior to his departure from Sri Lanka. The Authority was not satisfied that the applicant’s ability to identify names of TULF candidates removed the Authority’s concerns regarding the applicant’s ability to undertake his claimed activities whilst in hiding.

8. The Authority referred to documents provided by the applicant and was not satisfied that they support the applicant’s claims to be at risk of harm because of his claimed involvement with TULF. The Authority took into account that his evidence as a whole, including the inconsistencies in the evidence, the applicant’s relatively basic response to questions about his motivation and support to TULF, and the letters provided in support, the Authority was not satisfied these claims were true. The Authority did not accept the applicant was a supporter of TULF. The Authority did not accept the applicant was involved in the activities for TULF. The Authority did not accept the applicant was a member of TULF. The Authority did not accept the applicant’s father was a long term supporter of TULF. The Authority did not accept that since the applicant’s arrival in Australia, the applicant’s family home has been visited by unknown people and his whereabouts sought for any reason associated with the applicant’s involvement with TULF. The Authority was not satisfied that the applicant faced a real chance of harm on the basis of his involvement with TULF on his return to Sri Lanka now or in the reasonably foreseeable future.

9. The Authority referred to the applicant’s claims concerning his suspicion of involvement with the LTTE and the 2008 incident where he was released the next day. The Authority referred to country information and accepted that the applicant was released in 2008 without charge or having any reporting requirements after his release. The Authority did not accept that the applicant was being watched by armed militant groups when he resided in Colombo, nor did the Authority accept that the applicant was a supporter, member or involved in TULF. The Authority did not accept that when the applicant was arrested in 1993 it was because of his involvement with other militant groups and when the applicant was arrested in 2008 when questioned he provided details of his political involvement with TULF.

10. The Authority referred to the applicant’s claim that he gave meals to the LTTE and that he had not previously made mention of providing any assistance to the LTTE in his past interactions with the Department or in relation to his two protection visa applications. The Authority did not accept the applicant gave meals to the LTTE. The Authority found the applicant has included this in order to enhance his claims for protection. The Authority was not satisfied the applicant had any involvement with the LTTE.

11. The Authority referred to the United Nations High Commissioner for Refugees “(UNHCR”) and the UK Home Office country information that a person suspected of certain links with the LTTE may be in need of international refugee protection, depending on the individual circumstances of their case. The Authority was satisfied that had the applicant been of continued interest to the Sri Lankan authorities, even on suspicion of his involvement with the LTTE, his name would have been added to the database and he would have been stopped at the airport.

12. The Authority accepted the applicant’s brother was an LTTE member and accepted that the applicant is a Tamil male from a former LTTE controlled area who was arrested, questioned and detained during the war, and that such consequences were because of his ethnicity. For the reasons earlier given, the Authority was not satisfied that the applicant’s familial association with the LTTE of itself gives rise to the applicant being imputed with a pro-LTTE opinion. The Authority was not satisfied that the applicant had a profile of being associated with the LTTE and found the applicant would not be imputed with such a profile on return.

13. The Authority referred to the considerable period that had passed since the applicant’s brother was declared dead. The Authority also referred to the arrest of the applicant being some time ago and was not satisfied that the applicant was of any ongoing interest. In those circumstances, the Authority was not satisfied the applicant faces a real chance of serious harm on the basis of his Tamil ethnicity or imputed links to the LTTE.

14. The Authority then referred to the applicant having illegally departed and sought asylum in Australia. The Authority accepted the applicant may be charged under the Immigrants and Emigrants Act 1949 (Sri Lanka) for departing Sri Lanka other than via an approved port of departure. The Authority was satisfied that the investigation, prosecution and punishment of the applicant under Immigrants and Emigrants Act 1949 (Sri Lanka) would be a law of general application and would not amount to persecution under s 5H(1) or s 5J(1) of the Act.

15. The Authority found the applicant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act and that the applicant did not meet the criteria under s 36(2)(a) of the Act.

Assessment of the complementary protection criteria

1. The Authority found there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to his receiving country that there is a real risk the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. The grounds in the amended application are as follows:

   1. For one or more of the following reasons, the Immigration Assessment Authority (“the Authority”) fell into jurisdictional error in finding at [17] “I do not accept the applicant’s relative E was a member of the LTTE”.

   a. One reason the Authority made this finding was because the applicant did not provide details of E in his entry interview. The weight placed by the Authority on the absence of reference to E in the entry interview leads to a conclusion that the Authority committed the error referred to by the Full Court in MZZJO v Minister (2014) 239 FCR 436 at [56]-[57], that is the Authority misunderstood the nature and context of an entry interview and thereby misunderstood its task on review.

   b. The Minister’s delegate accepted that E was a member of the LTTE. In contrast, the Authority found to the contrary at [17] that E was not a member of the LTTE. The Authority made this finding without giving the applicant notice of the change of position and an opportunity to comment. It was legally unreasonable for the Authority to not exercise its power under s 473DC, or consider exercising the power, to give the applicant an opportunity to provide further information on this issue.

   c. The Authority’s process of reasoning in support of its finding that E was not a member of the LTTE was illogical and irrational in a manner which involved jurisdictional error.

   2. One set of bases on which the applicant feared persecution if required to return to Sri Lanka was “his ethnicity”, “his imputed political opinion as a Tamil from the Eastern Province”, “his previous detention and questioning by the Sri Lankan authorities on suspicion that he was involved with the LTTE” and “his brother’s … involvement in the LTTE”: at [10]. The Authority concluded at [53] that “I am not satisfied the applicant faces a real chance of serious harm on these bases”. Whether an applicant has a well-founded fear of persecution on return to their receiving country requires the decision-maker to consider the situation into the reasonably foreseeable future. The Authority failed to consider the position for the applicant into the reasonably foreseeable future. This is a jurisdictional error.

Ground 1A

1. In relation to ground 1, Mr Zipser of counsel took the Court to the Authority’s reasons in paragraph 17 as well as taking the Court carefully through the applicant’s statutory declaration dated 7 August 2013 and the reference to the applicant having a relative named E, which the applicant referred to in a separate declaration as being a high level member of the LTTE and having supported his brother’s involvement. It was alleged that E was a close family member despite his high level involvement with the LTTE and that the applicant’s family and the applicant would often visit his home, and as a result of this the applicant alleged his family became well-known as having a connection with the LTTE. The applicant’s statutory declaration referred to his family being attacked in 1990 by an unknown military group who were against the LTTE and that during the attack his brother and father were abducted and killed and his house burned down. It was alleged that the relative, E, warned the applicant’s family of future hardships and that E then departed Sri Lanka to Qatar and has not spoken to the applicant since.

2. Mr Zipser of counsel also took the Court to the irregular maritime arrival entry interview, and, in particular, Part C and the questions asked to the applicant, including question 2 in respect of which it was asked:

   “Have you or any members of your family been associated or involved with any political group or organisation?”

   And the answer “Yes” was ticked.

1. In response to the opportunity to provide details in response to the answer yes, the applicant had completed “Tamil party & LTTE.”

2. The only reference to a relative was in answer to question 1 as to why the applicant left his country of nationality where the applicant made reference to his brother being involved in the LTTE.

3. Mr Zipser of counsel also took the Court to question 3 of part C of the irregular maritime arrival entry interview which asked the applicant whether the applicant or any members of his family were involved in any activities or protests against the government, and that answer was “no”. Mr Zipser took the Court through the form of the questions and suggested that the questions asked supported a direct familial link, although Mr Zipser candidly drew attention to the fact that the applicant had referred in one answer to a brother-in-law.

4. Mr Zipser of counsel submitted first in relation to ground 1A that the Authority should have taken into account the caution identified in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 (“MZZJO”) at [56] and [57] in relation to the omission of reference to E at the entry interview. Mr Zipser submitted that the Authority in that regard must have misunderstood the nature and context of the entry interview and thereby misunderstood its task on review. Mr Zipser took the Court to the authorities in support of the submissions advanced in respect of ground 1A and suggested that the Authority had only provided, effectively, two reasons in support of the adverse finding in not accepting that E was a member of the LTTE.

5. The Authority’s reasons in the entry interview do refer to the applicant providing details about his brother’s LTTE membership and make no reference to anyone else. The Authority found that the details in relation to E’s involvement that the applicant provided were vague and unconvincing. The Authority further identified that the applicant made no mention of how E was related to him. The Authority also made reference to the absence of any specification of the position that E held in the LTTE beyond that of being a high level member. The adverse credibility finding of the Authority was not based solely on the entry interview admission and there is nothing to support that the Authority misunderstood the nature and context of the entry interview or misunderstood its task or review.

6. The Authority’s reasons in support of not accepting E’s involvement was cogent and logical and cannot be said to be unreasonable. The statutory declaration dated 7 August 2013 referred, in paragraph 8, to the E being “a relative of mine”, in the context of asserting that this gave rise to the applicant’s family being one which had a well-known connection to the LTTE. This generality together with the absence of mention of E at the entry interview provides a logical basis for the adverse findings by the Authority together with the context in which a vague reference is made to E’s high-level involvement and in context of being a close family friend that the applicant and his family visited. No jurisdictional error as alleged in ground 1A is made out.

Ground 1B

1. In relation to ground 1B, Mr Zipser of counsel submitted that the delegate had accepted that E was a member of the LTTE and on a fair reading of the delegate’s reasons, that proposition can be accepted. However, the delegate did not accept that the applicant, through his relatives, was known to the authorities in respect of having an LTTE connection. Mr Zipser submitted that the Authority departing from the delegate’s finding in respect of E being a member of the LTTE gave rise to circumstances where it was legally unreasonable for the Authority not to exercise its powers under s 473DC(3) of the Act to provide the applicant their information or an interview. The adverse finding by the delegate in respect of the applicant’s family giving rise to a suspicion of LTTE involvement subsumed the relationship with the alleged relative E, and the applicant was given a reasonable opportunity by the letter sent from the Authority dated 16 November 2016 to put on new information and submissions in relation to the adverse findings by the delegate.

2. I do not accept that the adverse finding in relation to the person E being a member of the LTTE gives rise to circumstances in which it was legally unreasonable for the Authority not to exercise its power under s 473DC(3) of the Act. Mr Zipser accepted that there had been no request for any such exercise of power in the submissions provided to the Authority. The applicant had a reasonable opportunity to put on submissions and new information under the steps referred to above. No legal unreasonableness is established in the circumstances of the present case by the absence of exercise of the power under s 473DC(3) of the Act. No jurisdictional error as alleged in ground 1B is made out.

Ground 1C

1. In relation to ground 1C, Mr Zipser submitted that the finding by the Authority was illogical and irrational and argued that in circumstances where the Authority accepted that E was a relative of the applicant, there is no logical or rational connection between the failure of the applicant to explain how E was related to him and whether E was a member of the LTTE. The adverse reasoning was open to the Authority. The Authority provided reasons at paragraph 17 in support of the adverse finding that cannot be said to be illogical, irrational, or to give rise to the finding being legally unreasonable.

2. The Authority was not required to accept uncritically the applicant’s assertion that E was involved in the LTTE, as is apparent from the decision of the delegate. Issues concerning credibility of the applicant’s claims arose in the context of the delegate’s findings, and the Authority made adverse credibility findings, for reasons given by the Authority that were open to the Authority. In the context of those adverse credibility findings, the Authority’s rejection of the alleged link by E to the LTTE was open to the Authority. No jurisdictional error as alleged in ground 1C is made out.

Ground 2

1. In relation to ground 2, Mr Zipser of counsel took the Court to the Authority’s reasons and in particular where the Authority had expressly referred to considering the real chance of serious harm in the foreseeable future. Mr Zipser submitted that the Authority’s finding in paragraph 53, considering the applicant’s claim of suspicion of LTTE involvement, the Authority had failed to take into account consideration of the foreseeable future. Mr Zipser advanced that submission because, in part, there was a reference to the foreseeable future in other paragraphs in the Authority’s reasons such as paragraph 40 and 59. The Authority’s reasons are not to be read with a keen eye for error.

2. The Authority’s reasons in relation to paragraph 53 are consistent with the Authority taking into consideration a reasonably foreseeable future. The Authority correctly identified the relevant law in that regard and, as accepted by Mr Zipser, expressly referred to the reasonably foreseeable future in making other adverse findings concerning the applicant’s claims. There is no proper basis to infer that the Authority was not taking into account the reasonably foreseeable future and the adverse determination in paragraph 53. No jurisdictional error as alleged in ground 2 is made out.

3. Accordingly, the amended application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  15 May 2018