EDF17 v Minister for Immigration

[2018] FCCA 502

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 502

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to apply the real chance test – whether the Authority’s reasons were illogical or unreasonable – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant: EDF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2875 of 2017

Judgment of: Judge Street

Hearing date: 1 March 2018

Date of Last Submission: 1 March 2018

Delivered at: Sydney

Delivered on: 1 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

On a direct access basis

Solicitors for the Respondents: Ms S Given
HWL Ebsworth Lawyers

ORDERS

1. Grant leave to the applicant to file in Court the amended application initialled by the Court and dated today and the Court dispenses with the need for the electronic filing of the same.

2. Grant leave to the first respondent to file in Court an outline of submissions dated 1 March 2018 initialled and dated by the Court today and the Court dispenses with the need for the electronic filing of the same.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2875 of 2017

EDF17

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 made on 23 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 as an unauthorised maritime arrival on 17 August 2012. The applicant lodged an application for a Safe Haven Enterprise visa on 11 February 2016.

3. The applicant was found to be a Tamil born in the Kalutra District in the Western Province. The applicant claimed to fear harm on the basis of his ethnicity, his activities in support of a particular PA candidate, his illegal departure and because he will be returning to Sri Lanka after seeking asylum in Australia. The applicant further feared that due to the entrenched culture of corruption, he will not be offered any meaningful protection by the Sri Lankan authorities from SU and his supporters. On 16 November 2016, the delegate found the applicant failed to meet the criteria for the grant of the protection visa. 

The Authority’s decision

1. On 21 November 2016, the Authority wrote to the applicant explaining that the application for the protection visa had been referred to the Authority for review. The letter identified that there were limited circumstances in which the Authority could receive new information.  The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The applicant did provide submissions to the Authority which were expressly referred to in the Authority’s reasons. The Authority also identified taking into account new country information and referred to having regard to the material provided by the Secretary under s 473CB of the Act.

3. The applicant provided a written statement in support of the application for protection, in which he identified that he had a van which he used to deliver sweets and chocolates to various shops through the district. The applicant also referred to another candidate SU being a well-known underworld figure who had allegedly murdered someone and was imprisoned and then released on bail. The applicant referred to that candidate allegedly being corrupt and well connected to other known criminals and underworld figures and that the applicant was encouraged to vote for SU. The applicant alleged an incident occurred on the election day on 8 October 2011 with a group of supporters SU were handing out flyers and threatened the applicant and six or seven others and told them to leave the area.

4. The applicant referred to there being some police at the time, and that SU followers left.  The applicant alleged that after the police left, the supporters returned in a black jeep with SU himself and were armed with machetes and sticks. The applicant alleged SU pointed at the applicant and ordered the men to attack and kill him.  The applicant alleged he was struck on the back of his neck with a pole, and he began running and managed to reach his sister’s house without being caught and that his family helped him leave the area.

5. The applicant alleged he caught a bus to a different village in a particular district where a distant relative was living. The applicant alleged that he stayed in that district until he left for Australia in July 2012. The applicant alleged that though he was living there, he was in hiding.  The applicant alleged that he learnt through his father that SU’s men had stopped his father on the road several times looking for him and threatened him that if they found him, they would kill him.

6. The applicant alleged he stopped delivering confectionery, except to two shops near to where he was hiding, and eventually he stopped that as he alleged that he was too scared to go out and be found by the SU’s men. The applicant also alleged in his statement that he feared being killed by SU’s henchmen and that SU had connections throughout the country at political and police level and that he is the deputy mayor and that due to his influence, he has greater power than the mayor and controls everything. 

7. The Authority referred to the applicant’s claim that he had to leave Sri Lanka because he was sought by a well-known underworld figure and political candidate for the Sinhalese named SU.

8. The Authority referred to the applicant’s claims regarding the alleged incident and the Authority had serious concerns about the applicant’s claims that SU was involved in the violent clash and that after the violent clash, the applicant went into hiding and continues to be of interest to SU or his supporters.

9. The Authority set out in detail the incident and information provided by the applicant to the delegate and his responses to certain questions, including how the applicant was able to escape. The delegate expressly raised with the applicant why he had not referred to the involvement of SU in discussing why he left Sri Lanka at the entry interview. The applicant stated that at the entry interview, he was not allowed to explain his claims but that he did mention SU. The Authority noted having listened to the entry interview and accepted that the applicant did refer to SU. However, in contrast to the applicant’s statements in the application at the protection visa interview, the applicant stated at the entry interview that it was SU who had gone to the polling booth the first time and it was SU who had told him to leave, and it was only after the police left that SU chased him with a big knife. 

10. The Authority referred to having considered the applicant’s evidence, submissions and country information and found the applicant’s evidence regarding the events involving SU to be implausible. The Authority found that it was not satisfied that the applicant would have come to the attention of SU as claimed. The Authority found the applicant’s explanation as to how he was able to escape SU’s ten supporters to be farfetched. The Authority was not convinced that, if the applicant had been of such interest to SU as claimed, that his supporters would turn their attention to seven other people, rather than getting the applicant, as instructed by SU.

11. The Authority referred to the applicant’s claim as to being struck on the back of the neck and going to a distant relative’s house in a particular district and that he remained in hiding until July 2012, when he departed for Australia. The Authority made reference to the protection interview where the applicant was asked whether he worked while he was hiding in a particular district and that he stated that he did not work.

12. The Authority noted the delegate put to the applicant that his evidence was in contrast to his protection visa application, where he stated that he continued to work for approximately two months while in the particular district and the applicant, in that regard, stated he only distributed to two or three shops as he needed the money. 

13. It was in those circumstances that the Authority did not accept the applicant was in hiding as claimed. The Authority referred to the applicant’s claim to be in hiding in the particular district because he was sought by SU and his supporters. The Authority observed that the applicant’s evidence was he was able to remain there for eight months and continued to work for at least two months without coming to the attention of SU even though SU had “connections, influence and power which extends through the country.”

14. The Authority also made reference to the information provided that the applicant’s friend was killed by SU and that the applicant, whilst he was in hiding in the particular district, received a phone call from his friend and that he gave his friend the address of the distant relative’s house in the particular district, but his friend arrived at the house after he departed. The delegate asked the applicant how many people knew about his distant relative’s house and he stated his mother and brother‑in‑law knew he was there and stated that he changed his sim card, but somehow his friend got his new phone number and called him.

15. The Authority found the applicant’s evidence regarding these claims evolved over time and that the applicant in his protection visa application had stated his friend fled to the same village as him when they were threatened on the election day, yet in the protection visa interview the applicant claimed the friend went to another village before contacting the applicant by phone to ask him where he was.

16. The Authority found the applicant’s claims that his friend and his father were killed by SU supporters to be speculative. The Authority did not accept that on election day SU attended the election booth area where the applicant was distributing fliers with other SS supporters. The Authority did not accept SU gave a command to his supporters to target or kill the applicant. The Authority did not accept that after the violent clash, the applicant and his friend were targeted by SU or his supporters and were in hiding. The Authority did not accept after the violent clash that SU or his supporters sought the applicant’s or his friend’s whereabouts.

17. The Authority accepted that the applicant’s friend and his father are now deceased, but did not accept that the applicant’s friend or father were killed by SU or his supporters. The Authority was satisfied that the applicant’s activities in support of the particular PA candidate were low level in nature and undertaken only for a short period of time approximately six years ago.  The Authority accepted whilst the applicant was involved in a violent clash and sustained an injury, the Authority was satisfied it was an isolated in nature. The Authority noted the applicant had not claimed he would resume activities in support of the particular PA candidate on his return, but if he were to do so, the Authority was not satisfied that it would lead to any real chance of harm. The Authority took into account the country information and was not satisfied that the applicant’s profile would cause him to be targeted by SU or his supporters in the future.

18. The Authority was not satisfied the applicant faces a real chance of serious harm due to his low level PA political activities or imputed or actual pro PA political opinion now or in the reasonably foreseeable future.

19. The Authority referred to the applicant’s concerns in relation to the culture of corruption and was not satisfied the applicant’s fear of not being provided protection by the Sri Lankan authorities from SU and his supporters was well-founded and noted that the Authority had rejected the applicant’s claims that after the violent clash he was of adverse interest to SU or his supporters.

20. The Authority referred to country information in relation to Tamils and was not satisfied the applicant faces a real chance of serious harm as a Tamil or because of any actual or imputed pro-LTTE or anti-Sri Lankan government political opinion because he is a Tamil, on his return to Sri Lanka now or in the reasonably foreseeable future.

21. The Authority referred to the applicant’s illegal departure and was not satisfied the applicant faces a real chance of serious harm as an asylum seeker returning from Australia now or in the reasonably foreseeable future. 

22. The Authority accepted the applicant may be charged under the Immigrants and Emigrants Act 1988 (Sri Lanka) and accepted that the applicant may be questioned and processed at the airport the applicant may face a brief period of detention. The Authority was satisfied the questioning, imposition of fine and possible brief detention does not amount to serious harm. The Authority was satisfied that any investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act 1988 (Sri Lanka) would be a law of general application and would not amount to persecution for the purpose of s 5H(1) and s 5J(1) of the Act.

23. The Authority was not satisfied the applicant faces a real chance of serious harm in Sri Lanka as a Tamil asylum seeker who departed illegally and is returning from Australia to Sri Lanka now or in the reasonably foreseeable future. The Authority found the applicant failed to meet the requirements under the definition of “refugee” in s 5H(1) of the Act and found the applicant did does not meet the criteria under s 36(2)(a) of the Act.

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

Before this Court

1. The Court granted leave to the applicant to file in Court an amended application. The grounds of the amended application are as follows:

   1. The Immigration Assessment Authority (“the IAA”) reasoned at [ 42]-[ 47] that. because “the overall situation for Tamils in Sri Lanka has improved considerably” since the end of the civil conflict in 2009. there is no longer a real chance that the applicant will suffer serious harm if required to return to Sri Lanka. However. the mere fact that the situation for Tamils in Sri Lanka has improved since the end of the civil war in 2009 does not mean that a Tamil does not face a real chance of persecution today. The IAA erred by reasoning that the applicant does not face a real chance of serious harm in Sri Lanka because the overall situation for Tamils in Sri Lanka has improved. This is a jurisdictional error.

   2. The IAA at [25] did not accept that the applicant was in hiding in Kurunegala district between about October 2011 and July 2012. This finding was illogical or legally unreasonable in a manner which involved jurisdictional error.

Ground 1

1. In relation to ground 1, Mr Zipser, of counsel took the Court carefully through the findings of the Authority in paragraphs 42 to 47. Mr Zipser focused particularly on the observation that the situation for Tamils had improved considerably. Mr Zipser submitted that merely because the situation had improved did not mean that the applicant does not face a real chance of serious harm in Sri Lanka because of the overall situation for Tamils having improved. Mr Zipser argued that the Authority had in substance failed to apply the real chance test.

2. The Authority’s reasons correctly identified the relevant law and the improvement of the situation of Tamils in Sri Lanka was a relevant matter for the Authority to take into account. The Authority’s reasons did not reflect a mere conclusion based on the improvement of the situation of Tamils, but also took into account the applicant’s personal circumstances and that he had made no mention of being stopped, detained, questioned or harassed by Sri Lankan authorities since the civil conflict period ended. The Authority’s reasons took into account the applicant’s evidence is that he did not have any links or involvement with the LTTE and that the applicant had made no mention of any family member’s association or involvement with the LTTE.

3. The improvement was a relevant matter for the Authority to take into account and taking the same into account does not demonstrate that the Authority in its reasons failed to correctly apply the real chance test. It is apparent from a fair reading of the Authority’s reasons as a whole, that the Authority correctly identified the consideration of the real chance in relation to the applicant being returned to Sri Lanka now or in the reasonably foreseeable future. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Zipser of counsel submitted that the finding in relation to the applicant not being in hiding at paragraph 25 of the Authority’s reasons was legally unreasonable or illogical. Mr Zipser took the Court to the applicant’s statement and the circumstances leading to the applicant allegedly going into hiding involving the election day and the role of SU. Mr Zipser argued that the Authority had provided only one reason in support of the finding, being the reference to his being able to remain there for eight months and continue to work.

2. The Authority’s reasons are to be read as a whole. Mr Zipser took the Court to where the Authority had identified concerns about the applicant’s claims that SU was involved in the clash and that the applicant went into hiding in paragraph 13 “for the following reasons.”  It was the combination of reasons identified by the Authority that gave rise to the adverse finding. That adverse finding was open on the material before the Authority for the reasons summarised above and cannot be said to be illogical or unreasonable. In substance, ground 2 reflects a disagreement with the adverse finding and does not make out any jurisdictional error. 

3. As the amended application fails to make out any jurisdictional error, accordingly, the amended application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  28 March 2018